State v. Ellis , 172 Ariz. 549 ( 1992 )

EUBANK, Judge,

dissenting.

I dissent from the majority opinion. The opinion states that “[njothing in the statutes or Arizona case law ... prescribes the standard to apply in calculating restitution.” However, in 1986 the legislature amended A.R.S. § 13-105 by adding paragraph (11), which defined “economic loss” as follows:

“Economic loss” means any loss incurred by a person as a result of the commission of an offense. Economic loss includes lost interest, lost earnings and other losses which would not have been incurred but for the offense. Economic loss does not include losses incurred by the convicted person, damages for pain and suffering, punitive damages or consequential damages.

1986 Ariz.Sess.Laws 858, 859 (“Chapter 248”). In the same act, they amended A.R.S. § 13-603(C) by striking “after consideration of the economic circumstances of the convicted person” and adding “pursuant to Chapter 8 of this title.” Chapter 248 at 861. (Chapter 8 establishes procedures for the state and victims to recover fines and restitution.) The legislature also amended A.R.S. § 13-804, in the same act, by adding subparagraphs (B) and (C), which read:

B. In ordering restitution for economic loss pursuant to section 13-603, subsection C or subsection A of this section, the court shall consider all losses caused by the criminal offense or offenses for which the defendant has been convicted.

C. The court shall not consider the economic circumstances of the defendant in determining the amount of restitution.

Chapter 248 at 861.

The title to chapter 248 reads in part:

AN ACT

Relating to crimes; prescribing procedures for restitution to victims for offenses causing economic loss; prescribing definitions of calendar year and economic loss; prescribing hearings and restitution orders; prescribing jurisdiction of trial court; prescribing restitution lien, contents and filing; precluding denial of essential allegations in civil proceeding if defendant was criminally convicted; prescribing condition of probation; prescribing priority of payments; prescribing consequences of nonpayment of fines or restitution; ____

Chapter 248 at 858.

Thus, it appears clear to me that the legislature intended for the trial judge to award a victim restitution in the amount of “economic loss,” not “fair market value” as determined by the majority opinion.

The difference between the two concepts is important. “Fair market value” is a term of art that relates to the price that a willing buyer would pay and a willing seller would take, both knowing all of the surrounding circumstances on a particular date in a hypothetical market. The definition was developed as a means of determining “just compensation” in eminent domain cases. See, e.g., Defnet Land & Inv. Co. v. State, 103 Ariz. 388, 389, 442 P.2d 835, 836 (1968); City of Phoenix v. Consolidated Water Co., 101 Ariz. 43, 45, 415 P.2d 866, 868 (1966); City of Yuma v. Arizona Water Co., 22 Ariz.App. 4, 7, 522 P.2d 765, 768 (1974).

In Honeywell Information Systems, Inc. v. Maricopa County, 118 Ariz. 171, 174, 575 P.2d 801, 804 (App.1977), a personal property tax case, we defined “fair market value” as follows:

The test of fair market value is not necessarily what an appraiser thinks the property is worth but rather what the property would sell for between a willing buyer and a willing seller in an arms-length transaction. The sales price at which the same or similar property is offered for sale is ordinarily viewed as the most significant indicator of fair market value. That is why the appellees themselves relied on sales prices as a method of valuing the property involved here. It is apparent that the argument that proof of sales price is insufficient and that appraisal evidence was necessary is incorrect.

In a Social Security Act (assistance to defendant children) case, where the parents’ “resources” determined eligibility, we defined “fair market value” as:

“Based on the foregoing, it is our opinion that the term ‘fair market value’ of resources as used in the various state welfare eligibility statutes means the fair market value of the owner’s interest in the property after deduction of the amount of the outstanding and unpaid mortgage, lien, encumbrance or security interest.”

Begay v. Graham, 18 Ariz.App. 336, 339-40, 501 P.2d 964, 967-68 (1972) (quoting Op. Att’y Gen. No. 69-25 (R-98) (Sept. 30, 1969)).

The majority would limit a victim’s restitution to “fair market value,” while I believe the legislature intended to cover losses well beyond that concept of value. The legislature intended the trial court to award the victim restitution for “any loss incurred by a person as a result of the commission of an offense,” including “lost interest, lost earnings and other losses which would not have been incurred but for the offense.” A.R.S. § 13-105(11) (1989) (emphasis added); see id. § 13-804(B), (C). This is the concept of “economic loss”; it is not the concept of “fair market value.”

I would affirm the trial court’s award of restitution.