Friedland v. Hon. Svoboda/State/Allen

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE FARRELL FRIEDLAND, ) ) Petitioner, ) ) v. ) ) THE HONORABLE PAMELA D. SVOBODA, ) Commissioner of the SUPERIOR ) COURT OF THE STATE OF ARIZONA, ) in and for the County of ) MARICOPA, ) ) Respondent Judge, ) ) THE STATE OF ARIZONA and BLAKE ) EVANS ALLEN, ) ) Real Parties in Interest. ) __________________________________) 1 CA-SA 10-0203 DIVISION ONE FILED: 10-12-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellant Procedure) Petition for Special Action from the Maricopa County Superior Court Cause No. CR2009-007762-001-DT The Honorable Pamela Hearn Svoboda, Commissioner JURISDICTION ACCEPTED; RELIEF GRANTED _________________________________________________________________ Arizona Voice for Crime Victims By Douglas L. Irish And Keli B. Luther Attorneys for Petitioner Phoenix Richard M. Romley, Maricopa County Attorney By Thomas McDermott, Deputy County Attorney Attorneys for Real Party in Interest State of Arizona Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Milo Iniguez, Deputy Public Defender Attorneys for Real Party in Interest Blake Evans Allen ________________________________________________________________ O R O Z C O, Judge ¶1 Farrell petition. Friedland (Victim) filed a special action She challenges the superior court s ruling that the total amount of restitution that can be ordered should be offset by the insurance settlement (Defendant) insurance company. she received from Blake Allen s For the reasons stated below, we accept jurisdiction and grant relief. ¶2 Victim is the adult daughter of Mr. and Mrs. Tillman; the true victims who were killed by Defendant in an automobile accident. homicide, Defendant class four pled guilty felonies. to two Victim counts filed of a negligent motion for restitution of economic loss in the sum of $35,921.93.1 ¶3 Victim s restitution request acknowledged Defendant s automobile insurance carrier had settled her wrongful death claim against Defendant, by paying her his policy limits of $30,000, or $15,000 for each parent.2 Attached to her restitution request was an affidavit by her attorney in the wrongful death claim that 1 Petitioner s request for restitution consisted of 1) Funeral Expenses: $26,066.91; 2) Medical Expenses: $5,142.02; and 3) Legal Expenses: $4,713. 2 Defendant s automobile insurance policy provided coverage of $15,000 per person and $30,000 per accident. Defendant s insurance company paid Victim the full policy limit of $30,000. 2 indicated the $30,000 insurance payment was for Victim s loss of the love, affection, companionship, etc. of her parents, and not for any economic losses incurred by [Victim] as a result of their deaths . The superior court denied Victim s motion and stated: The final issue remaining is whether the total amount of restitution should be offset by the insurance settlement the victim received from the Defendant s insurance company. The Court relies on State v. Iniguez, 169 Ariz. 533, 821 P.2d 194 (App. 1991) for its analysis. The Court rules the funeral costs are to be offset by the insurance settlement received by the victim. ¶4 Victim filed this statutory special action challenging the ruling. JURISDICTION ¶5 action We have jurisdiction to hear and determine this special pursuant to the Victims Bill of Rights, Article 2, Section 2.1, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) jurisdiction is section highly 13-4437.A (2010). discretionary there is no adequate remedy on appeal. and is Special action appropriate when State ex rel. Thomas v. Duncan, 216 Ariz. 260, 262, ¶ 4, 165 P.3d 238, 240 (App. 2007). Special action jurisdiction is appropriate where a petitioner would have no plain, speedy, and adequate remedy by appeal. Ariz. R.P. Spec. Act. 1(a). ¶6 This Court has specific statutory jurisdiction to enforce Victim s rights as guaranteed to all crime victims by the 3 Victims Bill of Rights. See Ariz. Const. art. 2, § 2.1. Furthermore, if no appeal is taken in the criminal matter, Victim may not have a remedy. Therefore, because Victim might not have a remedy on appeal and she is also a crime victim, we accept jurisdiction. DISCUSSION ¶7 Victim contends the superior court s justification for offsetting the insurance settlement proceeds restitution claim for economic loss was error. by the superior court for against her We review a restitution order an abuse of discretion. State v. Slover, 220 Ariz. 239, 242, ¶ 4, 204 P.3d 1088, 1091 (App. 2009). A trial court abuses its discretion if it or misapplies the law incorrect legal principles. ¶8 exercises its discretion based on Id. Restitution and civil damages are independent under Arizona law, and the state s power to order restitution does not bar a victim from seeking damages in a civil action. State v. Iniguez, 169 Ariz. 533, 536, 821 P.2d 194, 197 (App. 1991). The converse was true in Iniguez, where this Court held civil damages may be necessary to fully compensate the victim. Id. The Legislature intended to fully compensate the victim for economic loss. Id. at 537, 821 P.2d at 198. The Arizona Constitution seeks to have the victim receive prompt restitution. Const. art. 2, § 2.1. Ariz. Furthermore, A.R.S. § 13-603.C (2010) 4 states, the court shall require the convicted person to make restitution to . . . the immediate family of the victim if the victim has died, in the full amount of the economic loss as determined by the court. See also FDIC v. Colosi, 194 Ariz. 114, 116, ¶ 8, 977 P.2d 836, 838 (App. 1998) ( Payment of full economic restitution is mandatory under the Arizona sentencing system. ). ¶9 In this case, the uncontested evidence was that Victim s insurance settlement was solely for her loss of love, affection, and companionship of her parents. present any evidence to the contrary. Defendant did not In Defendant s response, he argues that the affidavit by Victim s attorney is factually incorrect. However, Defendant does not point to any contrary evidence that was presented to the superior court. ¶10 Because there was no evidence to contradict Victim s allegation that the wrongful death insurance proceeds were not for economic loss, the trial court erred in not awarding Victim restitution for her economic losses. We therefore remand this matter to the superior court to determine Victim s economic loss without offsetting her loss by proceeds. 5 the wrongful death insurance CONCLUSION ¶11 For the above mentioned reasons, we reverse the superior court order and remand this matter for the superior court to enter orders consistent with this decision. /S/ ___________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ____________________________________ MAURICE PORTLEY, Presiding Judge /S/ ____________________________________ MARGARET H. DOWNIE, Judge 6

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