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People v. Foos

Court of Appeals of Colorado, First Division

September 22, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Curtis Lynn Foos, Defendant-Appellant.

         Baca County District Court No. 13CR12 Honorable Stanley A. Brinkley, Judge.

          Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Law Offices of Les S. Downs, Les S. Downs, Trinidad, Colorado, for Defendant-Appellant

          OPINION

          FREYRE, JUDGE.

         ¶ 1 Defendant, Curtis Lynn Foos, appeals the district court's restitution order. We affirm.

         I. Background

         ¶ 2 In 2011, Foos filed for bankruptcy. The United States Bankruptcy Court entered an order of discharge resulting in a complete discharge of Foos' debts.

         ¶ 3 In 2013, Foos was charged with two counts of felony theft and one count of defrauding a secured creditor. Prior to his bankruptcy proceedings, Foos owed money to the victims identified in each of the three counts.

         ¶ 4 The district attorney who brought the charges was later recused from the case because her husband's company was a creditor in the Foos bankruptcy proceeding, as were the three alleged victims in the criminal complaint. The court appointed a special prosecutor from another judicial district who elected to move forward with the charges.

         ¶ 5 After the appointment of the special prosecutor, Foos pleaded guilty to the charge of defrauding a secured creditor in exchange for the prosecution dismissing the two counts of felony theft. The parties stipulated to a three-year deferred judgment and sentence with a requirement for full restitution. After a hearing, the district court ordered Foos to pay restitution of $58, 047.13 to Perry Huffman.

         II. Restitution Order

         ¶ 6 Foos contends that the district court erred in ordering him to pay restitution for three reasons: (1) Foos had previously discharged his debt to Huffman in bankruptcy; (2) Foos was prosecuted in bad faith; and (3) Foos was ordered to pay restitution for a count to which he did not plead guilty. We disagree.

         A. Standard of Review

         ¶ 7 The trial court has broad discretion in setting the terms and conditions of restitution, and, absent a showing that the court abused its discretion by misconstruing or misapplying the law, we will not disturb ...


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