Colorado § 16-11-102 - Presentence or probation investigation.

§ 16-11-102. Presentence or probation investigation.

(1) (a) (I) Following the return of a verdict of guilty of a felony, other than a class 1 felony, or following a finding of guilt on such charge where the issues were tried to the court, or on a plea of guilty or nolo contendere to such a charge, or upon order of the court in any misdemeanor conviction, the probation officer shall make an investigation and written report to the court before the imposition of sentence. Each presentence report must include a substance abuse assessment or evaluation made pursuant to article 11.5 of this title and, unless waived by the court, must include, but not be limited to, information as to the defendant's family background, educational history, employment record, and past criminal record, including the defendant's past juvenile delinquency record, if any; information indicating whether the defendant has been convicted of unlawful sexual behavior as defined in section 16-22-102 (9); an evaluation of the alternative dispositions available for the defendant; the information required by the court pursuant to article 18.5 of this title; a victim impact statement; and such other information as the court may require.

(II) Except as described in subparagraph (VI) of this paragraph (a), if the defendant is convicted of a felony that occurred after July 1, 2004, and he or she is eligible to receive a sentence to the department of corrections, the report described in subparagraph (I) of this paragraph (a) must include the following statement:

If the defendant is sentenced to the Department of Corrections, he or she may not serve his or her entire sentence in prison but may be released to community corrections or parole. The defendant's Parole Eligibility Date (PED) occurs after he or she has served fifty or seventy-five percent of his or her sentence, as provided in section 17-22.5-403, Colorado Revised Statutes, less any authorized earned time.

If the defendant is sentenced to the Department of Corrections, he or she may be eligible for a reduction in the length of his or her sentence by earned time. Regular earned time is up to ten or twelve days per month, not to exceed thirty percent of the defendant's sentence; however, the defendant may be eligible for further limited reductions through the application of various types of earned time provided in statute and administered pursuant to the policy of the Department of Corrections.

If the defendant is sentenced to the Department of Corrections, he or she may be eligible for release, to await parole in a community corrections facility, if such release is approved by the local community corrections board. If the defendant was not convicted of a crime of violence, as defined in section 18-1.3-406 (2), Colorado Revised Statutes, he or she may be moved to a community corrections placement as early as sixteen months prior to his or her PED. If the defendant was convicted of a crime of violence, he or she cannot be moved to a community corrections placement earlier than one hundred eighty days prior to his or her PED.

A defendant's eligibility for community corrections or parole does not necessarily mean that community corrections or parole will be granted. The inmate locator on the internet website of the Department of Corrections can provide additional information regarding the sentence of an individual defendant.

The provisions of this statement do not apply to a defendant who has been sentenced to the youthful offender system within the Department of Corrections.

(II.5) Except as provided in subsection (1)(a)(II.7) of this section, if the defendant is convicted on or after July 1, 2018, the report described in subsection (1)(a)(I) of this section must include the following statement:

Each defendant may, at the time of conviction or at any time thereafter, apply to the court for an order of collateral relief of the consequences of the defendant's conviction pursuant to the provisions of section 18-1.3-107, Colorado Revised Statutes.

(II.7) The report described in subsection (1)(a)(I) of this section need not include the statement described in subsection (1)(a)(II.5) of this section if the defendant:

(A) Has been convicted of a felony that included an element that requires a victim to suffer a serious bodily injury and the victim suffered a permanent impairment of the function of any part or organ of the body;

(B) Has been convicted of a crime of violence as described in section 18-1.3-406; or

(C) Is required to register as a sex offender pursuant to section 16-22-103.

(III) The district attorney's office shall prepare a victim impact statement. The department of human services shall provide the district attorney's office with the information necessary for the preparation of a victim impact statement. In addition, the court, in cases that it deems appropriate, may require the presentence report to include the findings and results of a professionally conducted psychiatric examination of the defendant.

(IV) No less than seventy-two hours prior to the sentencing hearing, the probation department shall provide copies of the presentence report, including any recommendations as to probation, to the prosecuting attorney and defense counsel or to the defendant if he or she is unrepresented. Upon request of either the defense or the district attorney, the probation department shall provide the presentence report at least seven days prior to the sentencing hearing. If the probation department informs the court it cannot provide the report at least seven days prior to the sentencing hearing, the court shall grant the probation department additional time to complete the report and shall reset the sentencing hearing so that the hearing is held at least seven days after the probation department provides the report.

(V) The probation department shall transmit a copy of the presentence report, and the court shall transmit the mittimus to the department of corrections.

(VI) The report described in subparagraph (I) of this paragraph (a) need not include the statement described in subparagraph (II) of this paragraph (a) if:

(A) The defendant is a sex offender for whom the sex offender management board has established separate and distinct release guidelines pursuant to section 18-1.3-1009, C.R.S.;

(B) The defendant has at least one previous conviction for a crime of violence and must be referred by the department to the state board of parole pursuant to section 17-22.5-403 (3.5), C.R.S.;

(C) The defendant is convicted of a class 1 felony or is a juvenile convicted as an adult of a class 1 felony; or

(D) The probation department has reasonable grounds to believe that the language of the statement is inapplicable to the defendant. If the probation department elects to omit the statement pursuant to this sub-subparagraph (D), the probation department shall document in the report its grounds for doing so.

(b) (I) Each presentence report prepared regarding a sex offender, as defined in section 16-11.7-102 (2)(a)(I) to (2)(a)(III), or if requested by the prosecuting attorney or court for a person who may be determined to be a sex offender based upon a prior offense pursuant to section 16-11.7-102 (2)(a)(IV), with respect to any offense committed on or after January 1, 1996, must contain the results of an evaluation and identification conducted pursuant to article 11.7 of this title 16; except that:

(A) If the offense is a misdemeanor pursuant to the provisions of section 18-3-412.6, C.R.S., an evaluation and identification conducted pursuant to article 11.7 of this title shall not be ordered by the court;

(B) If the offense is a misdemeanor pursuant to title 42, C.R.S., or the history of sex-offending behavior was a misdemeanor sex offense committed when the defendant was a juvenile, an evaluation and identification conducted pursuant to article 11.7 of this title is not required but may be ordered by the court; and

(C) If the court accepts a stipulation that the defendant will not be sentenced to probation or if the defendant is already serving a sentence in the department of corrections, an evaluation and identification conducted pursuant to article 11.7 of this title is not required but may be ordered by the court.

(II) In addition, the presentence report shall include, when appropriate as provided in section 18-3-414.5, C.R.S., the results of the risk assessment screening instrument developed pursuant to section 16-11.7-103 (4)(d). Notwithstanding the provisions of subsection (4) of this section, a presentence report shall be prepared for each person convicted as a sex offender, and the court may not dispense with the presentence evaluation, risk assessment, and report unless an evaluation and risk assessment has been completed within the last two years and there has been no material change that would affect the evaluation and risk assessment in the past two years.

(c) (I) The state court administrator may implement a behavioral or mental health disorder screening program to screen defendants for which the court has ordered an investigation pursuant to this section. If the state court administrator chooses to implement a behavioral or mental health disorder screening program, the state court administrator shall use the standardized behavioral or mental health disorder screening instrument developed pursuant to section 16-11.9-102 and conduct the screening in accordance with the procedures established pursuant to said section. The findings and results of any standardized behavioral or mental health disorder screening conducted pursuant to this subsection (1)(c) must be included in the written report to the court prepared and submitted pursuant to this subsection (1).

(II) Prior to implementation of a behavioral or mental health disorder screening program pursuant to this subsection (1)(c), if implementation of the program would require an increase in appropriations, the state court administrator shall submit to the joint budget committee a request for funding in the amount necessary to implement the behavioral or mental health disorder screening program. If implementation of the program would require an increase in appropriations, implementation of the behavioral or mental health disorder screening program is conditional upon approval of the funding request.

(1.1) Repealed.

(1.2) Each presentence report must include information indicating whether the person is a respondent in an open dependency and neglect proceeding pursuant to article 3 of title 19.

(1.5) A victim impact statement may include the following:

(a) An identification of the victim of the offense;

(b) An itemization of any economic loss suffered by the victim as a result of the offense, including any loss incurred after the offense and after criminal charges were filed formally against the defendant. The victim impact statement shall be prepared by the district attorney's office at the time the offense is filed and shall be updated to include any loss incurred by the victim after criminal charges were filed.

(c) An identification of any physical injury suffered by the victim as a result of the offense, including information on its seriousness and permanence;

(d) A description of any change in the victim's personal welfare or familial relationships as a result of the offense;

(e) An identification of any request for psychological services initiated by the victim or the victim's family as a result of the offense;

(e.5) An evaluation of the victim's and the victim's children's safety if probation is granted;

(f) Any other information related to the impact of the offense upon the victim that the court requires.

(1.7) Each presentence report shall also include information from the offender and any other source available to the probation officer regarding the offender's estate, as defined in section 18-1.3-701 (5)(b), C.R.S., and other pertinent financial information, for the purpose of determining whether such offender or juvenile has sufficient assets to pay all or part of such offender's or juvenile's cost of care, as defined in section 18-1.3-701 (5)(a), C.R.S. The financial information obtained from the offender shall be submitted in writing and under oath.

(1.8) At the request of either the prosecution or the defense, each presentence report prepared regarding a juvenile or young adult, as defined in section 18-1.3-407 (1.3), who is eligible for sentencing to the youthful offender system pursuant to section 18-1.3-407.5, 19-2.5-801 (5), or 19-2.5-802 (1)(d)(I)(B) must include a determination by the warden of the youthful offender system whether the juvenile or young adult is acceptable for sentencing to the youthful offender system. When making a determination, the warden shall consider the nature and circumstances of the crime, the circumstances and criminal history of the juvenile or young adult, the available bed space in the youthful offender system, and any other appropriate considerations.

(1.9) Each presentence report must also:

(a) Include the results of an actuarial assessment of the offender's criminological risks and needs;

(b) Provide sufficient information to allow the court to consider:

(I) Whether the offender is a suitable candidate for a sentencing option that does not involve incarceration or a combination of sentencing options that does not involve incarceration; and

(II) The appropriate conditions to impose if a defendant is sentenced to probation;

(b.5) Indicate whether the offender meets the minimum eligibility requirements as provided in sections 18-1.3-104 (1)(b.5) and 18-1.3-204 (2)(a)(III.5) for participation in restorative justice practices;

(c) Describe the projected costs, if known, that are associated with each sentencing option that is available to the court; and

(d) Set forth the purposes of title 18, C.R.S., with respect to sentencing, as such purposes are described in section 18-1-102.5, C.R.S.

(2) The report of the probation officer and the procedures to be followed at the time sentence is imposed and final judgment is entered shall be as required by the Colorado rules of criminal procedure. In addition to the requirements of such rules, the report shall include a statement showing the amount of time during which the defendant was imprisoned awaiting trial upon the charge resulting in conviction.

(3) The court, upon its own motion or upon the petition of the probation officer, may order any defendant who is subject to presentence investigation or who has made application for probation to submit to a mental and physical examination.

(4) The court, with the concurrence of the defendant and the prosecuting attorney, may dispense with the presentence examination and report; except that the information required by section 18-1.3-603 (2) and subsection (1.2) of this section and a victim impact statement must be made in every case. The amount of restitution must be ordered pursuant to section 18-1.3-603 and article 18.5 of this title 16 and endorsed upon the mittimus. The information required pursuant to subsection (1.2) of this section must be included on the mittimus.

(5) After receiving the presentence report and before imposing sentence, the court shall afford the defendant an opportunity to make a statement in his or her own behalf and to present any information in mitigation of punishment. The prosecution also shall be given an opportunity to be heard on any matter material to the imposition of sentence. The court shall then sentence the defendant pursuant to the provisions of this article and section 18-1.3-401, C.R.S.

(6) Following the return of a verdict of guilty of a felony, or a finding of guilt on such charge where the issues were tried to the court, or on a plea of guilty or nolo contendere to such a charge, the district attorney may file with the court identification photographs and fingerprints of the defendant or defendants, and such identification photographs and fingerprints shall become part of the court record. Such identification photographs and fingerprints of the defendant or defendants shall constitute prima facie evidence of identity under section 18-1.3-802, C.R.S.

Source: L. 72: R&RE, p. 240, § 1. C.R.S. 1963: § 39-11-102. L. 77: (1) and (5) amended, p. 862, § 3, effective July 1, 1979. L. 81: (6) added, p. 950, § 2, effective May 27; (1) and (4) amended, p. 941, § 1, effective July 1. L. 84: (1) and (4) amended and (1.5) added, p. 651, § 1, effective January 1, 1985. L. 86: (1) amended, p. 733, § 2, effective July 1. L. 88: (1) amended, p. 680, § 2, effective July 1. L. 89: (1) amended, p. 862, § 3, effective February 26. L. 89, 1st Ex. Sess.: (1.1) added, p. 76, § 2, effective July 1. L. 91: (1) amended, p. 436, § 1, effective May 29. L. 92: (1) amended, p. 454, § 1, effective June 2. L. 94: (1)(a) amended, p. 2650, § 123, effective July 1; (1.1) repealed and (1.7) added, pp. 1362, 1356, §§ 5, 1, effective July 1; (1.5)(b) amended, p. 1050, § 5, effective July 1; (1.5)(e.5) added, p. 2036, § 16, effective July 1. L. 95: (1)(b) amended, p. 465, § 11, effective July 1. L. 96: (4) amended, p. 1778, § 3, effective June 3. L. 98: (4) amended, p. 519, § 6, effective April 30. L. 99: (1)(a) amended, p. 315, § 3, effective July 1. L. 2000: (1)(a) and (4) amended, p. 1045, § 7, effective September 1. L. 2001: (4) amended, p. 1271, § 20, effective June 5. L. 2002: (1)(c) added, p. 573, § 1, effective May 24; (1)(a) amended, p. 1182, § 9, effective July 1; (1.7), (4), (5), and (6) amended, p. 1494, § 141, effective October 1. L. 2007: (1)(b) amended, p. 253, § 1, effective March 26. L. 2009: (1.8) added, (HB 09-1122), ch. 77, p. 279, § 2, effective October 1. L. 2010: (1.8) amended, (HB 10-1413), ch. 264, p. 1204, § 3, effective August 11. L. 2011: (1)(b) amended, (HB 11-1138), ch. 236, p. 1027, § 8, effective May 27; (1.9) added, (HB 11-1180), ch. 96, p. 282, § 2, effective August 10. L. 2012: (1)(b) amended, (HB 12-1310), ch. 268, p. 1395, § 9, effective June 7; (1)(b) amended, (HB 12-1346), ch. 220, p. 946, § 7, effective July 1. L. 2013: (1)(a) and (1)(b) amended, (SB 13-229), ch. 272, p. 1427, § 4, effective July 1. L. 2015: (1)(a) amended, (HB 15-1042), ch. 119, p. 361, § 1, effective August 5. L. 2017: (1)(c) amended, (SB 17-242), ch. 263, p. 1297, § 120, effective May 25; IP(1.9) amended and (1.9)(b.5) added, (HB 17-1039), ch. 58, p. 182, § 2, effective August 9. L. 2018: (1)(a)(II.5) and (1)(a)(II.7) amended, (HB 18-1344), ch. 259, p. 1590, § 3, effective July 1. L. 2021: (1.8) amended, (HB 21-1091), ch. 175, p. 955, § 2, effective May 24; (1.8) amended, (SB 21-059), ch. 136, p. 713, § 24, effective October 1; (1.8) amended, (HB 21-1091), ch. 175, p. 957, § 5, effective October 1. L. 2023: IP(1)(b)(I) amended, (SB 23-164), ch. 349, p. 2085, § 1, effective June 5; (1.2) added and (4) amended, (SB 23-039), ch. 191, p. 958, § 9, effective January 1, 2024. L. 2026: (1.8) amended, (HB 26-1064), ch. 15, p. 61, § 1, effective August 12.

Editor's note: (1) The effective date for amendments made to this section by chapter 216, L. 77, was changed from July 1, 1978, to April 1, 1979, by chapter 1, First Extraordinary Session, L. 78, and was subsequently changed to July 1, 1979, by chapter 157, § 23, L. 79. See People v. McKenna, 199 Colo. 452, 611 P.2d 574 (1980).

(2) Amendments to subsection (1)(b) by House Bill 12-1310 and House Bill 12-1346 were harmonized.

(3) Subsection (1.8) was amended in section 2 of HB 21-1091. Those amendments were superseded by the amendment of subsection (1.8) in SB 21-059, effective October 1, 2021. For the amendments to subsection (1.8) in HB 21-1091 in effect from May 24, 2021, to October 1, 2021, see section 2 of chapter 175, Session Laws of Colorado 2021. (L. 2021, p. 955.)

Cross references: For the legislative declaration contained in the 1994 act amending subsection (1)(a), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration contained in the 2002 act amending subsections (1.7), (4), (5), and (6), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017. For the legislative declaration in SB 23-039, see section 1 of chapter 191, Session Laws of Colorado 2023.

ANNOTATION

Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982).

Annotator's note. Since § 16-11-102 is similar to repealed § 39-16-2, C.R.S. 1963, and § 39-16-2, CRS 53, relevant cases construing those provisions have been included in the annotations to this section.

No right to evidentiary hearing. During a discretionary sentencing proceeding, statutes do not require an evidentiary hearing on the validity of any prior conviction contained in a presentence report. People v. Padilla, 907 P.2d 601 (Colo. 1995).

Duration of period of probation is limited to maximum term of imprisonment specified for the offense in question, and the provision of § 16-11-202 permitting the court to grant probation "for such a period and upon such terms and conditions as it deems best", does not give the court the authority to extend the terms of probation beyond the maximum term of imprisonment. People v. Knaub, 624 P.2d 922 (Colo. App. 1980).

The right to a presentence report has not been recognized as a constitutional right. Bell v. Patterson, 279 F. Supp. 760 (D. Colo.), aff'd, 402 F.2d 394 (10th Cir. 1968).

This section designates in what cases and circumstances an officer must make a presentence investigation and report. Logan v. People ex rel. Alamosa County, 138 Colo. 304, 332 P.2d 897 (1958).

Written report required. This section requires that, after conviction of crime, an investigation is to be made by a probation officer who shall make a written report to the court containing his findings on matters bearing upon the sentence to be imposed. Williams v. People, 134 Colo. 580, 307 P.2d 466 (1957).

Trial court erred by proceeding to sentencing without a presentence investigation report ("PSIR"). The plain language of this section requires the preparation of a PSIR before sentencing, unless both the defendant and the prosecution agree to proceed to sentencing without the benefit of such a report. Here, the prosecution specifically requested that a PSIR be prepared, and objected to the court's proceeding to sentencing without one. The prosecution thus did not waive the statutory requirement that the PSIR be prepared before the imposition of sentence. People v. Gretz, 973 P.2d 110 (Colo. App. 1998).

When an application for probation is made by an eligible person, a district court is required to cause a probation officer to make an investigation of the applicant. The probation officer within such time as the court may prescribe shall make a written report to the court of said investigation, together with his recommendation as to whether or not probation should be granted. Logan v. People ex rel. Alamosa, 138 Colo. 304, 332 P.2d 897 (1958).

Which may contain any information helpful to courts. The trial court, before granting or denying an application for probation and before imposing sentence, is to be advised by a written report from the probation officer of any prior criminal record of the defendant and of such information about his characteristics, his financial condition, and circumstances affecting his behavior, and any other information as may be required by the court, as may be helpful in determining the advisability of granting probation, or as may be helpful in imposing sentence in the event probation is denied. Wolford v. People, 178 Colo. 203, 496 P.2d 1011 (1972).

Evidence is not limited by strict rules or due process. This section does not contemplate that the probation officer is required to establish the matters reported in the probation report by evidence presented in accordance with the due process procedures required of a guilt trial, nor are strict rules of evidence adhered to. Wolford v. People, 178 Colo. 203, 496 P.2d 1011 (1972).

Defendant entitled to sentencing hearing continuance when defendant did not receive the presentence report within the time specified in subsection (1)(a)(IV). A continuance was necessary because a late presentence report abridges a defendant's rights to present evidence in rebuttal to the information and recommendations contained in the presentence report. People v. Cross, 2023 COA 24, 531 P.3d 444.

The defendant has the right to be heard concerning matters in the report which he believes to be inaccurate or untrue. Wolford v. People, 178 Colo. 203, 496 P.2d 1011 (1972).

Unless shown to be untrue, court may rely on report. When represented by competent counsel and supplied with a copy of the probation report, defendant does not show that the information supplied to the court in the probation report was inaccurate or untrue, a court is entitled to rely upon the report as submitted. Wolford v. People, 178 Colo. 203, 496 P.2d 1011 (1972).

If defendant fails to show inaccuracy of information in presentence report or victim impact statement, including restitution amount, at sentencing hearing, he waives the right to contest the information. People v. Powell, 748 P.2d 1355 (Colo. App. 1987).

Remand for presentation of evidence in rebuttal to report. Where the presentence report is issued to counsel immediately prior to sentencing, and the trial court's refusal to continue the sentencing hearing to another day unduly abridges the defendant's rights to present evidence in rebuttal to the information and recommendations contained in the report, his sentence must be vacated and the case remanded for resentencing after a full sentencing hearing. People v. Wright, 672 P.2d 518 (Colo. 1983).

Court erred in relying for sentencing purposes upon information and evidence not included within the presentence report or disclosed to defendant by some other means prior to the sentencing hearing. People v. Pourat, 100 P.3d 503 (Colo. App. 2004).

Error by the court to proceed to sentencing defendant without report was harmless where defendant refused to be interviewed by probation officer, neither defense counsel nor prosecutor objected to proceeding without report, defense counsel submitted memorandum that was functional equivalent of presentence report, and defendant failed to allege on appeal how he was prejudiced by absence of report. People v. Martinez, 32 P.3d 520 (Colo. App. 2001).

Recommendations as to sentences are made by probation officers only upon request by the court. Smith v. People, 162 Colo. 558, 428 P.2d 69 (1967).

The totality of discretion rests with the trial court in the imposition of sentence. A recommendation by the probation officer is nothing more nor less than a recommendation. Smith v. People, 162 Colo. 558, 428 P.2d 69 (1967).

Provision is made for a mental and physical examination of an applicant for probation. Logan v. People ex rel. Alamosa County, 138 Colo. 304, 332 P.2d 897 (1958).

Trial court could impose restitution under this section and § 17-2-201 as a condition of parole, even though the restitution provisions of § 16-11-204.5 did not apply since the defendant pleaded guilty to theft by receiving and was not sentenced to probation. People v. Schmidt, 700 P.2d 925 (Colo. App. 1985).

Sentence of incarceration precludes order of restitution, but at time of sentencing, court may set amount of restitution for later consideration by parole board when board sets conditions for parole under § 17-2-201. People v. Powell, 748 P.2d 1355 (Colo. App. 1987).

This section does not authorize the court to impose restitution unless authorized pursuant to another statutory provision. People v. Young, 710 P.2d 1140 (Colo. App. 1985) (decided prior to 1996 amendment to subsection (4)).

Subsection (4), as amended in 1996, requires courts to impose restitution at the time of sentencing, even where a defendant is sentenced to incarceration. People v. Tipton, 973 P.2d 713 (Colo. App. 1998); People v. Apodaca, 998 P.2d 25 (Colo. App. 1999).

When an offense requires proof of the identity of a particular victim, the court may not order restitution to another. Defendant who pled guilty to a single count of theft in return for a dismissal of other counts may not be ordered to pay restitution to the victims in the counts that were dismissed. People v. Armijo, 989 P.2d 224 (Colo. App. 1999).

A codefendant is jointly responsible for restitution when he is also a complicitor in the crime. People v. Fichtner, 869 P.2d 539 (Colo. 1994).

Codefendants were participants and complicitors in the same criminal acts, therefore, each is responsible for the damage he caused and also for the damage caused by the other. People v. Fichtner, 869 P.2d 539 (Colo. 1994).

The sentencing court is required to fix the defendant's criminal liability for restitution by considering the victim's actual monetary losses and, where appropriate, to temper the defendant's restitution obligation by considering his financial ability to pay and his duty of support owed to his dependents and any other outstanding family responsibilities. The statutory scheme, in other words, does not require the sentencing court to determine a defendant's criminal liability for restitution in accordance with the strict rules of damages applicable to a civil case. People v. Johnson, 780 P.2d 504 (Colo. 1989); People v. Duran, 991 P.2d 313 (Colo. App. 1999).

An order of restitution becomes part of the sentence which, in accordance with Crim. P. 32(c), is part of the judgment of conviction. When a court orders a defendant, over his objection, to pay restitution to the victim or the victim's family as part of the judgment of conviction for a felony, the order of restitution is appealable pursuant to the statutory procedures applicable to the appellate review of a felony sentence. People v. Johnson, 780 P.2d 504 (Colo. 1989).

An order increasing the amount of restitution has the effect of increasing the punishment originally imposed. Therefore, because restitution is a part of the criminal sentence, once a legal sentence is imposed and a defendant has begun serving it, an increase in the amount of restitution ordered also violates the constitutional prohibition against double jeopardy. People v. Shepard, 989 P.2d 183 (Colo. App. 1999).

Statute provides no right to offender to present evidence of ability to pay restitution during revocation hearing when hearing is based on other grounds. People v. McCarty, 851 P.2d 181 (Colo. App. 1992).

Order requiring defendant to pay restitution for one-half of the value of property missing from the truck involved in defendant's conviction for theft by receiving was improper. There was no evidence linking the defendant's conduct of theft by receiving the stolen truck and the missing personal property from the truck. The trial court's order, based on speculation, was improper. People v. Randolph, 852 P.2d 1282 (Colo. App. 1992).

Although a trial court may establish restitution pursuant to this section, it may not establish the method of payment for restitution. People v. Randolph, 852 P.2d 1282 (Colo. App. 1992); People v. Strock, 931 P.2d 538 (Colo. App. 1996).

The manner and time of payment of restitution is exclusively within the jurisdiction of the parole board. People v. Strock, 931 P.2d 538 (Colo. App. 1996).

The general assembly did not intend to give absolute discretion to a court to comply or not to comply with what appear to be mandatory requirements of a presentence report. People v. Valencia, 888 P.2d 319 (Colo. App. 1994), aff'd, 906 P.2d 115 (Colo. 1995).

The record of the sentencing hearing must include at least a summary of the information relied upon by the sentencing court but not contained in the presentence report. Absent such a record, no meaningful appellate review of the sentence is possible. People v. Pourat, 100 P.3d 503 (Colo. App. 2004).

Because the trial court did not set forth any reasons for its waiver of statutory requirements, the defendant's presentence report did not comport with the requirements of this section. People v. Valencia, 888 P.2d 319 (Colo. App. 1994).

Prior to sentencing, the court must grant the defendant an opportunity to make a statement on his or her own behalf. The proper remedy for failing to allow the defendant to make a statement is resentencing. People v. Marquantte, 923 P.2d 180 (Colo. App. 1995); People v. Perea, 74 P.3d 326 (Colo. App. 2002); People v. Quillen, 2023 COA 22M, 530 P.3d 1253.

Failure to afford defendant an opportunity to speak amounts to plain error where the court did not directly address the defendant or personally invite him to speak. The court's inquiry whether "other people in the court" wanted to speak was clearly directed to the nonparties in attendance, not to the defendant. People v. Smalley, 2015 COA 140, 369 P.3d 737.

However, the right of allocution is a statutory right, not a constitutional one, and reversal is not required if the failure to provide the defendant an opportunity to make a statement prior to sentencing is harmless. If a trial court imposes the minimum sentence permitted and does not have discretion to impose a lesser sentence, the lack of a statement in allocution does not affect the sentence and is harmless. People v. Martinez, 83 P.3d 1174 (Colo. App. 2003).

Defendant's right of allocution was not improperly withheld where court asked defense counsel if defendant wished to make a statement to the court, but counsel proceeded to argument. People v. Loyd, 902 P.2d 889 (Colo. App. 1995).

When the court dispenses with the presentence report, the probation department, within seventy-two hours prior to the sentencing hearing, should provide the prosecuting attorney and defense counsel, or the defendant if unrepresented, with a copy of the victim impact statement setting forth the amount of the victim's claimed monetary damages and the amount of restitution for which the defendant may be responsible. At the sentencing hearing the defendant must be given the opportunity to controvert the victim's claimed monetary damages. People v. Johnson, 780 P.2d 504 (Colo. 1989).

"Victim" construed. The transfer of stolen property to a bona fide purchaser necessarily victimizes the purchaser since his interests must yield to the title of the rightful owner. Therefore, the bona fide purchaser of stolen property was a victim for purposes of ordering restitution and the trial court properly included in the amount of restitution an amount to reimburse the purchaser, an antique dealer, for expenses for restoration of the property. People v. Schmidt, 700 P.2d 925 (Colo. App. 1985).

Applied in Little v. People, 138 Colo. 572, 335 P.2d 863 (1959); Rader v. People, 153 Colo. 134, 384 P.2d 926 (1963); People v. Palmer, 42 Colo. App. 460, 595 P.2d 1060 (1979); People v. Gonzales, 44 Colo. App. 411, 613 P.2d 905 (1980); People v. Hunt, 632 P.2d 572 (Colo. App. 1981); People v. Lowery, 642 P.2d 515 (Colo. 1982).