State v. Poole

2015 UT App 220THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
RICHARD SHAN POOLE,
Defendant and Appellant.
Opinion
No. 20131099-CA
Filed August 27, 2015
Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 121900656
Nathalie S. Skibine and Neal G. Hamilton, Attorneys
for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.
JUDGE MICHELE M. CHRISTIANSEN filed a separate opinion, in
which JUDGE GREGORY K. ORME concurred.
ROTH, Judge:
¶1 Richard Shan Poole appeals the district court’s order of
restitution, arguing that the court lacked jurisdiction to enter it.
We vacate the restitution order.
BACKGROUND
¶2 Poole pleaded guilty to criminal mischief after he ‚drove
his friend to a Rio Tinto location‛ so the friend could break in
and ‚cause*+ several thousands [of dollars] worth of damage to
State v. Poole
*Rio Tinto’s+ property.‛ As part of the plea agreement, Poole
agreed to ‚joint and several liability for restitution.‛ On August
3, 2012, the district court imposed a sentence of zero-to-five years
in prison, which it then suspended in favor of three years of
probation. The court also converted Poole’s fines to community
service because Poole was going to have ‚a bunch of restitution
. . . to pay off.‛ At sentencing, the State had only a preliminary
estimate of damages from Rio Tinto. To give the State an
opportunity to obtain a final amount, the court agreed to hold
restitution open for up to one year as permitted by the Crime
Victims Restitution Act (the Restitution Act), see Utah Code Ann.
§ 77-38a-302(2)(b), (5) (LexisNexis Supp. 2013), but the court
directed the State to submit its restitution request within ninety
days of sentencing. The State failed to do so.
¶3 Later, Poole violated the terms of his probation, and on
February 1, 2013, the district court modified his probation to
require him to serve 300 days in the Salt Lake County jail, where
he was to complete the Correctional Addiction Treatment
Services (CATS) program. The judge indicated that she would
consider early release from jail if Poole completed the CATS
program. Poole successfully completed the CATS program, and
on May 31, 2013, the court released him from custody. The State
did not object.
¶4 On July 10, 2013, the State moved for an order of
restitution. Poole objected, asserting that as of May 31, his case
had been closed and, thus, the district court no longer had
jurisdiction to enter restitution. The State responded that its
request for restitution was timely because the court had held
restitution open for one year from sentencing and the State had
filed its motion within that one-year period. Alternatively, the
State argued that the statutory time limitations governing
restitution are not jurisdictional, and cited the United States
Supreme Court’s decision in Dolan v. United States, 560 U.S. 605(2010), to support its contention. The district court agreed with
20131099-CA 2 2015 UT App 220State v. Poole
the State that its jurisdiction to order restitution continued for
one year after sentencing, particularly where the court had
expressly indicated its intent to hold restitution open for that
period. Accordingly, on November 1, 2013, the court entered a
restitution order for $7,270. Poole appeals.
ISSUE AND STANDARD OF REVIEW
¶5 Poole challenges the court’s jurisdiction to enter the
restitution order.1 ‚*J+urisdiction to order restitution in a criminal
case is statutory,‛ and therefore, ‚we must interpret relevant
Utah statutes to resolve this issue.‛ State v. Dickey, 841 P.2d 1203,
1204–05 (Utah Ct. App. 1992) (citation and internal quotation
marks omitted). ‚Construction of statutes poses a question of
law which we review on appeal for correctness without
deference to the trial court.‛ Id. at 1205.
ANALYSIS
¶6 Poole makes two alternative arguments in support of his
claim that the district court could not order him to pay
restitution more than a year after his sentencing. First, he
contends that once the district court closed his case after he had
completed the CATS program, it no longer had jurisdiction to
order restitution. Alternatively, he asserts that even if the court
retained jurisdiction, it failed to order restitution within the time
1. Poole also makes some related constitutional claims. Because
we decide the case on the basis that the district court lacked
jurisdiction to enter restitution, we do not need to address the
constitutional arguments. See West v. Thomson Newspapers, 872
P.2d 999, 1004 (Utah 1994) (‚*C+ourts should avoid reaching
constitutional issues if the case can be decided on other
grounds.‛).
20131099-CA 3 2015 UT App 220State v. Poole
period prescribed by the Restitution Act. We conclude that
although the district court did not close the case, it lacked
authority to order restitution after the one-year time period
expired.
¶7 The Restitution Act authorizes a district court to enter an
order of restitution ‚for conduct *resulting in pecuniary
damages] for which the defendant has agreed to make
restitution as part of a plea disposition.‛ Utah Code Ann. § 77-
38a-302(1) (LexisNexis Supp. 2013). ‚‘Court-ordered restitution’
means the restitution the court having criminal jurisdiction
orders the defendant to pay as a part of the criminal sentence at
the time of sentencing or within one year after sentencing.‛ Id.
§ 77-38a-302(2)(b). The court ‚shall make all restitution orders at
the time of sentencing if feasible, otherwise within one year after
sentencing.‛ Id. § 77-38a-302(5)(d)(i).
¶8 First, Poole contends that the court no longer had criminal
jurisdiction over him after the court released him from jail and
closed the case. In support, Poole cites the principle that ‚*o+nce
a court imposes a valid sentence and final judgment is entered,
the court ordinarily loses subject matter jurisdiction over the
case.‛ State v. Rodrigues, 2009 UT 62, ¶ 13, 218 P.3d 610.
Rodrigues, however, is a prison case. When a defendant is
sentenced to prison, jurisdiction transfers from the district court
to the Board of Pardons and Parole (the Board) once the sentence
and final judgment are entered. In this case, however, Poole’s
prison sentence was suspended, and he was placed on probation
under the continuing jurisdiction of the district court. See Utah
Code Ann. § 77-18-1(2)(b)(iii) (LexisNexis Supp. 2014) (‚The
court has continuing jurisdiction over all probationers.‛). Thus,
the district court retained jurisdiction over Poole until his
probation ended and his case was closed.
¶9 We are not persuaded that the district court closed Poole’s
case once he completed the CATS program and was released
from jail. At the probation violation hearing, the court indicated
20131099-CA 4 2015 UT App 220State v. Poole
its willingness to close out Adult Probation & Parole’s (AP&P)
interest in supervising Poole because the court did not anticipate
that he would continue under AP&P supervision once he was
released from jail. The court also seemed to suggest that it might
close the case entirely, but the court’s statement was anticipatory
and therefore equivocal:
When he gets out of CATS, why don’t we set it for
review and we’ll decide whether to close at that
point. Well, we’ll close AP&P’s interest. What I
mean is you’ll be done.
But the minute entry from the same hearing states simply,
‚Close case,‛ without a qualifying reference to AP&P, and Poole
argues that this means the court closed the case. We conclude,
however, that in context, the minute entry indicates, at best, the
court’s intention to close the case after Poole had in fact
completed CATS and been released from jail. But once Poole was
eventually released, having successfully completed CATS, the
court made no further entry in the record stating that the case
was actually closed. Indeed, because Poole had agreed to
restitution as part of his plea agreement and the court had stated
that it planned to order restitution and had expressly held
restitution ‚open for . . . [s]tatutorily a year,‛ the court’s
statement at the probation violation hearing cannot reasonably
be read to mean that the case was to automatically close upon
Poole’s release from incarceration. Because we determine that
the case was never closed, we conclude that the district court
retained jurisdiction to order restitution after it released Poole
from custody in May 2013.2
2. Resolution of this appeal does not require us to decide
whether a district court’s decision to close a case within one year
of sentencing strips it of jurisdiction to subsequently order
(continued…)
20131099-CA 5 2015 UT App 220State v. Poole
¶10 Poole next asserts that even if the court retained
jurisdiction over his case after he was released from jail, the
court nevertheless lacked jurisdiction to enter the restitution
order because the Restitution Act provides that restitution
‚shall‛ be ordered within one year of sentencing and the one-
year period ended on August 3, 2013, without such an order. The
State responds that because the district court had ‚ordered Poole
to pay restitution, and merely kept the amount issue open,‛ the
court retained the power to set restitution even after the one-
year period expired. The State alternatively contends that in any
event, the one-year period is not jurisdictional but is instead a
directory guideline making compliance desirable but not
mandatory. See generally Beaver County v. Utah State Tax Comm’n,
919 P.2d 547, 552 (Utah 1996) (distinguishing between directory
and mandatory time requirements contained in statutes).
¶11 With respect to the State’s first argument, it is undisputed
that there was no final order of restitution in this case until
November 1, 2013, nearly fifteen months after the August 3,
2012, sentencing. The Restitution Act requires that the district
court ‚determine . . . court-ordered restitution‛ and ‚make all
restitution orders‛ no later than one year from sentencing. Utah
Code Ann. § 77-38a-302(2)(b), (5)(d)(i). We do not read the one-
year requirement for ‚mak*ing+‛ a restitution order as
contemplating an order that does not include an amount and is
therefore incomplete. Rather, the statute defines ‚‘court-ordered
restitution’‛ as ‚the restitution the court having criminal
jurisdiction orders the defendant to pay as a part of the criminal
sentence . . . within one year after sentencing.‛ Id. § 77-38a-
302(2)(b) (emphasis added). Thus, the provision plainly requires
that an order of restitution with a sum certain be issued within a
(…continued)
restitution before the year has passed. We therefore leave that
question for another day.
20131099-CA 6 2015 UT App 220State v. Poole
year; the language does not reasonably stretch to fit the mere
filing of a motion for restitution or a court’s statement of intent
to set restitution at some future date. Thus, the court’s
statements at sentencing that it planned to order restitution upon
receiving evidence of the amount owed—even if those
statements established a condition of probation—did not meet
the statutory requirement for a final restitution order. Cf. State v.
Schultz, 2002 UT App 297, ¶¶ 2–4, 8–9, 56 P.3d 974 (addressing a
jurisdictional question but noting that restitution had not yet
been ordered even though the Board had said it would order
restitution, and the defendant had agreed to pay restitution, but
no restitution order with an amount had been entered prior to
termination of sentence). Because the district court did not enter
a restitution order within one year of sentencing, we now turn to
the parties’ contentions about the jurisdictional nature of the
time requirement.
¶12 ‚Whether a statutory time frame is jurisdictional depends
on whether the statute’s time designation is ‘directory’ or
‘mandatory.’‛ Beaver County, 919 P.2d at 552. A time designation
is ‚mandatory, and therefore jurisdictional, if it is of the essence
of the thing to be done.‛ Id. (citation and internal quotation
marks omitted). On the other hand, a time designation is
‚merely directory, and therefore not jurisdictional, if it is given
with a view merely to the proper, orderly and prompt conduct
of the business and by the failure to obey no prejudice will occur
to those whose rights are protected by the statute.‛ Id. (citation
and internal quotation marks omitted).
¶13 The State urges us to employ the analysis used in Dolan v.
United States, 560 U.S. 605 (2010), to determine if the time
designation for the district court’s entry of restitution is
mandatory or jurisdictional. The Dolan Court considered
whether a timing requirement in a federal statute governing
restitution was mandatory or discretionary. Id. at 609–11. We
decline to use the Dolan analysis because we conclude that the
20131099-CA 7 2015 UT App 220State v. Poole
plain language of the Restitution Act sufficiently communicates
a legislative mandate that district courts order restitution in
criminal cases within one year of sentencing.
¶14 The pertinent language in the Restitution Act reads,
Except as provided in Subsection (5)(d)(ii)
*concerning the Board’s authority to order
restitution for persons in its custody], the court
shall determine complete restitution and court-
ordered restitution, and shall make all restitution
orders at the time of sentencing if feasible,
otherwise within one year after sentencing.
Utah Code Ann. § 77-38a-302(5)(d)(i) (LexisNexis Supp. 2013)
(emphasis added); see also id. § 77-38a-302(2)(b) (‚‘Court-ordered
restitution’ means the restitution the court having criminal
jurisdiction orders the defendant to pay as a part of the criminal
sentence at the time of sentencing or within one year after
sentencing.‛). The use of ‚shall‛ ‚is usually presumed
mandatory and has been interpreted as such previously in this
and other jurisdictions.‛ Board of Educ. of Granite Sch. Dist. v. Salt
Lake County, 659 P.2d 1030, 1035 (Utah 1983); accord Aaron
& Morey Bonds & Bail v. Third Dist. Court, 2007 UT 24, ¶ 14 n.2,
156 P.3d 801. But because ‚shall‛ has been interpreted to mean
‚may‛ in some cases, see State v. Tyree, 2000 UT App 350, ¶ 9, 17
P.3d 587 (observing that there is ‚no universal rule by which
directory provisions may, under all circumstances, be
distinguished from those which are mandatory‛ (citation and
internal quotation marks omitted)), we consider the Restitution
Act’s plain language in the context of its judicial and legislative
history.
¶15 In State v. Schulz, 2002 UT App 297, 56 P.3d 974, we
considered whether the Board had jurisdiction to order
restitution once parole had terminated. At the time, neither the
Restitution Act nor the statute governing the Board’s authority
20131099-CA 8 2015 UT App 220State v. Poole
over restitution3 provided any time limit for entering a
restitution order. Compare Utah Code Ann. § 77-38a-302
(LexisNexis Supp. 2002) (restitution criteria under the
Restitution Act), with id. § 77-27-6 (payment of restitution under
the Pardons and Parole chapter). In Schulz, prior to the
defendant’s release on parole, the Board ‚ordered that *the
defendant’s+ parole agreement be amended to include the
restitution‛ for the victim. Schultz, 2002 UT App 297, ¶ 2. The
defendant ‚assented to the special condition in the parole
agreement that he would ‘*p+ay restitution of $TBD.’‛ Id.(alteration in original). The restitution amount in that case was
not determined before Schulz’s parole ended, however, and he
made no restitution payments. Id. ¶ 3. Later, after Schulz’s
sentence terminated and his parole ended, the Board issued an
order requiring Schulz to pay restitution in the amount of $3,798.
Id. ¶¶ 3–4. Schulz challenged on appeal the Board’s authority to
order restitution, arguing that ‚the Board’s jurisdiction ended
when his sentence and parole were terminated.‛ Id. ¶ 7. This
court recognized that the Board was authorized to order
restitution so long as the defendant was still within the Board’s
custody or supervision. Id. ¶ 8. We concluded, however, that
once the ‚defendant *was+ terminated from parole,‛ the Board’s
jurisdiction ended. Id. Although the Restitution Act did not
3. The restitution section of the Pardons and Parole chapter of
the Utah Code directs the Board ‚to make restitution pursuant to
. . . *the+ Restitution Act.‛ Utah Code Ann. § 77-27-6(1)
(LexisNexis Supp. 2002) (current version at id. (LexisNexis
2012)). Thus, these two provisions must be interpreted together.
See LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135(explaining that appellate courts are to ‚read the plain language
of the statute as a whole[] and interpret its provisions in
harmony with other statutes in the same chapter and related
chapters‛ (alteration in original) (citation and internal quotation
marks omitted)).
20131099-CA 9 2015 UT App 220State v. Poole
‚expressly provide a deadline‛ for entry of an order of
restitution, we concluded that ‚the restitution order must be
executed prior to the termination of a sentence and parole.
Otherwise, the Board could indefinitely extend its authority to
those no longer under its jurisdiction.‛ Id. In other words, we
concluded in Schulz that the legislature intended the Board’s
jurisdiction over a defendant to terminate with the end of the
sentence and parole.4
¶16 In 2005, the Utah Legislature made a number of
modifications to the Board’s and the district court’s authority to
make orders of restitution. First, the legislature extended the
authority of the Board to order restitution for a short period
beyond the termination of a sentence: ‚*T+he *B+oard shall make
all orders of restitution within 60 days after the termination or
expiration of the defendant’s sentence.‛ Utah Code Ann. § 77-27-
6(2)(c) (LexisNexis 2012).5 We note that in affording the Board a
period of time to order restitution after its jurisdiction over a
defendant would otherwise have ended, the legislature did not
4. Once a defendant is sent to prison, the Board, with certain
limited exceptions, has exclusive authority to determine how the
defendant serves his or her sentence. Utah Code Ann. § 77-27-9
(LexisNexis 2012). The Board may keep the defendant in prison
until the end of his sentence term or release him on parole for
some length of time up to the maximum length of the sentence.
See id.; State v. Schultz, 2002 UT App 297, ¶ 8, 56 P.3d 974 (‚An
action to terminate a prison sentence and parole supervision is
within the exclusive authority of the Board.‛). The Board retains
jurisdiction over the defendant until the date parole ends or, if
no date is set, the date that the maximum sentence expires.
5. There have been no substantive amendments to the pertinent
code sections since the 2005 amendments. Accordingly, we cite
the current version for the reader’s convenience.
20131099-CA 10 2015 UT App 220State v. Poole
choose an approach that undermined Schultz’s interpretation of
the statute as jurisdictional but simply extended the Board’s
jurisdiction to order restitution by a specific number of days.
¶17 In conjunction with this amendment, the legislature also
modified the Restitution Act. Prior to 2005, the Restitution Act,
like the statute addressing the Board’s restitution authority, did
not set a time limit for a district court to order restitution. See id.§ 77-38a-302 (LexisNexis Supp. 2002 & 2003). But in 2005, the
legislature amended the act to provide that the district court
‚shall make all restitution orders at the time of sentencing if
feasible, otherwise within one year after sentencing.‛ Id. § 77-
38a-302(5)(d)(i) (LexisNexis Supp. 2013). As part of that same
amendment, the legislature also clearly defined the boundaries
between the district court’s authority and the Board’s:
(d)(i) Except as provided in Subsection (5)(d)(ii),
the court . . . shall make all restitution orders at the
time of sentencing if feasible, otherwise within one
year after sentencing.
(ii) Any pecuniary damages that have not been
determined by the court within one year after
sentencing may be determined by the Board of
Pardons and Parole.
(e) The Board of Pardons and Parole may, within
one year after sentencing, refer an order of
judgment and commitment back to the court for
determination of restitution.
Id. § 77-38a-302(5)(d)–(e). Thus, where a defendant is sentenced
to prison and thereby committed to the authority of the Board,
the district court retains jurisdiction to determine restitution for
a year, after which the Board has sole responsibility. During that
year, the Board can refer the case back to the district court for a
restitution determination. Once the year has ended, however,
there is no provision for the district court’s continued
involvement, other than perhaps to complete a process of
20131099-CA 11 2015 UT App 220State v. Poole
referral timely begun by the Board. The amendments thus
ensure that there can be no confusion about who has the
authority to address restitution at any particular point after
sentencing results in a prison commitment.6
¶18 Thus, the Restitution Act’s use of ‚shall‛ in establishing
the one-year time limitation on the district court’s authority to
order restitution after a prison commitment must be interpreted
as mandatory rather than directory. And where the ‚shall‛ is
clearly mandatory in establishing the demarcation between the
restitution authority of the district court and the Board when a
defendant is ordered to prison, we are loathe to ascribe a merely
directory meaning to the same word and phrase in the context of
a district court’s authority to order restitution where the prison
sentence is suspended and probation is ordered. In other words,
we are not persuaded that the legislature meant the same
provision to be mandatory in one context and not in the other,
when neither the language nor the broader subject matter of the
amendments seem to contemplate such an inconsistent
interpretation. Rather, the plain language in context supports a
conclusion that the legislature intended a consistent reading of
the Restitution Act, regardless of whether the defendant was
6. The legislative history suggests that the legislature had this in
mind when it amended the Restitution Act. During a floor
debate, the bill’s sponsor, Senator Gregory S. Bell, stated that
one of the goals of the amendments was to eliminate ‚doubt
about whether *the courts+ have jurisdiction‛ to order restitution
after ‚the defendant is committed to prison‛ by establishing
‚a bright line as to when the judge has jurisdiction versus
the parole board.‛ Recording of Utah Senate Floor Debates, S.B.
94, 56th Leg., Gen. Sess. (Jan. 26, 2005), available at
http://utahlegislature.granicus.com/MediaPlayer.php?clip_id=85
48&meta_id=444501.
20131099-CA 12 2015 UT App 220State v. Poole
sentenced to prison or probation. Further, reading the ‚shall‛ as
mandatory seems warranted where the statute indicates a
preference that ‚all restitution orders‛ ordinarily be made ‚at
the time of sentencing,‛ but then provides a one-year grace
period to complete the process should it not prove ‚feasible‛ to
resolve the matter at the preferred point in the process. See Utah
Code Ann. § 77-38a-302(5)(d)(i).
¶19 We recognize that this interpretation of the Restitution
Act does limit the period for ordering restitution to one year for
probationers while the time for ordering restitution in the case of
those imprisoned could be longer, up to the length of the
sentence plus sixty days. We might also surmise that it would
make sense to extend the time for a district court to enter an
order of restitution until the end of probation, just as the time for
the Board to order restitution extends to the termination of
sentence (and sixty days beyond). But the differential treatment
is mandated by the Restitution Act’s plain language, and even if
the legislature might have chosen a different approach had the
issue we now confront been anticipated at the time, it is not our
role to make such a change on our own. See Lindsay v. Walker,
2015 UT App 184, ¶ 24 (‚Our constitutional responsibility is not
to redefine the line based upon competing considerations (even
when those considerations may be compelling), but to interpret
the statute as written.‛). Moreover, the plain language
interpretation does not necessarily work an unanticipated result.
By limiting the district court’s authority to order restitution to
just one year, the legislature may have deliberately balanced the
victim’s right to obtain restitution through the criminal process
with the probationer’s interest in finality as to the terms of his or
her sentence.
¶20 For these reasons, we conclude that the one-year time
period provided for a district court’s imposition of an order of
restitution is not ‚given with a view merely to the proper,
orderly and prompt conduct of the business‛ but rather is a
20131099-CA 13 2015 UT App 220State v. Poole
statutory mandate that is likely to result in ‚prejudice . . . to
those whose rights are protected by the statute‛ if compliance is
not required. See Beaver County v. Utah State Tax Comm’n, 919
P.2d 547, 552 (Utah 1996) (citation and internal quotation marks
omitted). Because the time frame set by the Restitution Act ‚is of
the essence of the thing to be done,‛ see id. (citation and internal
quotation marks omitted), strict compliance with the one-year
limitation for an order of restitution is required.
¶21 The district court in this case did not enter a restitution
order until it established the amount of restitution on November
1, 2013, which was nearly fifteen months after sentencing. Thus,
the court failed to ‚make all restitution orders . . . within one
year after sentencing.‛ See Utah Code Ann. § 77-38a-302(5)(d)(i)
(LexisNexis 2012). As a result, the district court lacked authority
to order Poole to pay $7,270 to Rio Tinto when it did and that
order must be vacated.
CONCLUSION
¶22 Although the district court retained jurisdiction to order
Poole to pay restitution after he was released from jail, the court
failed to enter a final order of restitution within one year of
Poole’s sentencing date. Accordingly, the order to pay $7,270 in
restitution to Rio Tinto is vacated without prejudice as to any
other remedy Rio Tinto may have under law to recover its losses
from Poole.
CHRISTIANSEN, Judge (concurring):
¶23 Judge Orme and I agree with the lead opinion that the
plain language of section 77-38a-302(5)(d) of the Restitution Act
requires a district court to determine complete and court-
ordered restitution and make all restitution orders within one
20131099-CA 14 2015 UT App 220State v. Poole
year after sentencing a defendant convicted of criminal activity.
Accordingly, we must join in the determination that the statute’s
one-year time period for the imposition of a final order of
restitution is a statutory mandate and not a directory provision.
But we wish to emphasize the point made by the lead opinion
that the restitution statutes referenced in this case set forth an
inconsistency and create a situation for probationers that we are
not sure was intended by the legislature. See supra ¶ 19.
¶24 The inconsistency created by the pertinent statutes in this
case is that the Utah Board of Pardons and Parole has the
flexibility to order a criminal defendant to pay restitution until
sixty days after termination or expiration of his or her sentence,
see Utah Code Ann. § 77-27-6(2)(c) (LexisNexis 2012), but, as
recognized in this case, a district court only has one year from
the date of sentencing to impose final restitution even if the court
continues to maintain jurisdiction over the defendant for a
longer period of time, see id. § 76-3-201(4) (Supp. 2014);
id. § 77-38a-302 (Supp. 2013). As we have seen here, the effect of
the one-year time limit on a district court is that restitution will
be barred and the victim will not receive compensation when the
order is entered too late even though the district court continues
to exercise authority over the defendant.
¶25 In its statutory enactments regarding restitution, the Utah
Legislature has consistently sought to ensure that criminal
defendants engage in rehabilitation, fulfill their responsibility to
compensate their victims for losses resulting from their criminal
activity, and ensure that victims of crime are made whole after
suffering a loss. See Monson v. Carver, 928 P.2d 1017, 1027 (Utah
1996) (‚*R+estitution is not a ‘punishment’ but a civil penalty
whose purpose is entirely remedial, i.e., to compensate victims
for the harm caused by a defendant and whose likely intent is to
spare victims the time, expense, and emotional difficulties of
separate civil litigation to recover their damages from the
defendant.‛). If one of the main purposes of restitution is to
20131099-CA 15 2015 UT App 220State v. Poole
ensure that victims of crime are made whole, cutting short the
time frame in which a district court can impose a final restitution
amount seems to contradict that legislative intent of protecting
victims, especially where that same district court judge can
retain authority over a criminal defendant for much longer than
a one-year period. See Utah Code Ann. § 77-18-1 (LexisNexis
Supp. 2014). The differing time limits for the imposition of
restitution between courts and the Board of Pardons and Parole
strike us as unwarranted. But ‚respect for the legislative
prerogative in lawmaking requires that the judiciary not
interfere with enactments of the Legislature where disagreement
is founded only on policy . . . . In matters not affecting
fundamental rights, the prerogative of the legislative branch is
broad and must by necessity be so if government is to be by the
people through their elected representatives and not by judges.‛
Baker v. Matheson, 607 P.2d 233, 237 (Utah 1979). Consequently,
we would encourage the legislature to address this issue because
we cannot.
20131099-CA 16 2015 UT App 220