State v. Iniguez ( 1991 )

TAYLOR, Presiding Judge,

concurring.

I concur fully in the analysis and conclusions of law expressed by my colleagues.

I write separately to express my perception of the lack of authority for the prosecutor to enter into a plea agreement setting a limit on the amount of restitution to be paid to the victim, and the absence of authority for the court to accept such an agreement or to order restitution of less than the full economic loss suffered by the victim as determined by the court, unless specifically authorized by the victim.

The mandate of the statute is clear. “If a person is convicted of an offense, the court shall require the convicted person to make restitution to the person who is the victim of the crime ... in the full amount of the economic loss as determined by the court ...”. A.R.S. § 13-603(C). [Emphasis added.] In my judgment, the statute cannot be read other than that the amount of economic loss as determined by the court and the amount of restitution ordered by the court should be identical.

Further, “[t]he court shall not consider the economic circumstances of the defendant in determining the amount of restitution.” A.R.S. § 13-804(C). This suggests the preclusion of negotiation.

If a restitution hearing is held, “[t]he state does not represent persons who have suffered economic loss at the hearing, but may present evidence or information relevant to the issue of restitution.” A.R.S. § 13-804(F).

The statute further provides as follows:

G. After making the determinations in subsection B of this section the trial court shall enter a restitution order for each defendant which sets forth all of the following:

1. The total amount of restitution the defendant owes all persons.

2. The total amount of restitution owed to each person.

3. The manner in which the restitution is to be paid.

This order may be supported by evidence or information introduced or submitted to the court before sentencing or any evidence previously heard by the judge during the proceedings.

I find nothing in these legislative directives to suggest that the prosecutor or the court may interfere with the right of the victim to a court determination and order for the full amount of his economic loss. The danger is that the economic rights of the victim may become a bargaining chip in plea negotiations. I believe the statutes place the matter of restitution outside the parameters of plea bargaining.

I assume that a defendant may reserve in the plea agreement the right to withdraw from the agreement if the court thereafter determines that the amount of economic loss exceeds a certain figure. I believe the current plea agreement, although not couched in those terms, may be read to be given that effect. This, however, differs significantly from an arrangement wherein the defendant and the prosecutor have agreed upon a restitution limit in reaching a plea bargain and the court accepts that limit regardless of the court’s subsequent determination of the economic loss to the victim. In my view, the defendant should be advised at the change of plea proceedings that the court has no alternative but to determine and to order restitution in the full amount of the economic loss to the victim.

The record herein reflects a vigorous effort on the part of the prosecution to obtain restitution for the victim up to the agreed amount. My concern is the suggestion, reflected by the current practice, that the amount of restitution may be limited by negotiations between the defendant and the prosecution.

For the foregoing reasons, I believe that upon remand the trial court should hold a restitution hearing to determine the full economic loss to the victim. The figure thus determined then becomes the amount to be ordered as restitution. If that amount exceeds $200,000.00, the defendant may either accept the higher figure or be permitted to withdraw from the plea agreement and proceed to jury trial unless the victim authorizes the court to order restitution of a lesser amount. When a restitution figure is established, credit for payments received pursuant to settlement of the civil claims should be applied as set forth in the opinion.