In re Daniel C

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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.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE IN RE: ) ) ) ) ) ) ) ) ) ) DANIEL C. No. DIVISION ONE FILED: 02/28/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-JV 11-0157 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Ariz. R.P. Juv. Ct. 103(G); ARCAP 28) Appeal from the Superior Court in Yuma County Cause No. S1400JV20110043 The Honorable Denise D. Gaumont, Judge Pro Tempore RESTITUTION AWARD VACATED Jon R. Smith, Yuma County Attorney By Mark Edward Hessinger, Deputy County Attorney Attorneys for Appellee Yuma The Law Offices of Kelly A. Smith By Kelly A. Smith Attorneys for Appellant Yuma T I M M E R, Judge ¶1 Daniel C. appeals the juvenile court s order requiring him to pay $176.33 in restitution. For the following reasons, we decide the court lacked authority to enter the award, and we vacate it. BACKGROUND ¶2 On facilitation juvenile March to a 2011, commit court imposed 9, burglary accepted term of Daniel six the in delinquent the first among other to degree. and, plea months pled probation and an The things, award of restitution capped at $400, subject to submission of proof of the restitution amount by the victim within thirty days (April 8). The severally involved court with in ordered two the other burglary adjudicated delinquent. ¶3 the restitution juveniles, at issue, Juan paid jointly and Aril, assuming they who and were would be The victim did not attend the hearing. The victim filed a restitution statement on April 13, five days after the deadline. No action was taken, and the next mention of restitution was in a May 10 hearing held in Juan s case. At that hearing, the prosecutor incorrectly informed the court that, according to a probation officer, restitution had been left open against Daniel and Aril pending resolution of Juan s case; the prosecutor stated he would confirm the accuracy of the probation officer s belief and, if true, contact counsel for Daniel and Aril to ensure the boys would be represented at a future restitution hearing. ¶4 At an adjudication hearing held in Juan s case on June 2 2, Daniel testified his case had concluded without a restitution order and he was then on probation. The court reappointed prior counsel to represent Daniel because restitution had not been finalized. continued After accepting Juan s plea to delinquency at the adjudication restitution hearing restitution to restitution hearing, be hearing for July paid by and on 28 June to Daniel, over 28, the determine Juan, Daniel s and court the amount Aril. objection, ordered him to pay $176.33 to the victim. set At the a of the court This timely appeal followed. DISCUSSION ¶5 The sole issue on appeal is whether the juvenile court erred in ordering Daniel to pay restitution in light of the expiration of the thirty-day time frame in which to determine the amount of restitution owed. Daniel argues the court erred because the disposition order became final on April 8, 2011, without an award of restitution. The State counters the court acted within its discretion because the belated entry of the restitution order was not the victim s fault but occurred as a result of improper handling by a probation officer. We review the abuse juvenile discretion. court s restitution order for an of In re Richard B., 216 Ariz. 127, 130, ¶ 12, 163 P.3d 1077, 1080 (App. 2007). ¶6 Our resolution of this 3 appeal is governed by the supreme court s decision in In re Alton D., 196 Ariz. 195, 994 P.2d 402 (2000). The juvenile in that case pled delinquent and agreed to pay up to $3,000 in restitution. P.2d at 403. Id. at 196, ¶ 2, 994 At the disposition hearing, the juvenile court imposed probation and left restitution open for approximately thirty days to permit the victim to substantiate a claim. Id. The court ordered the state to inform the victim of the need to substantiate his claim by the deadline or the matter would be closed. Id. The state appealed, arguing a restitution deadline conflicts with the victim s right to compensation. ¶7 Id. at ¶ 3. In resolving the appeal, the supreme court initially noted that a victim s right to compensation must be balanced against the juvenile s constitutional disposition of the case. right to a speedy Id. at 197, ¶ 7, 994 P.2d at 404. That balance is achieved, according to the supreme court, by permitting restitution the juvenile claims timely entered. so court that to a set final, Id. at ¶¶ 9-10. a deadline appealable for order filing can be The court rejected the state s argument that the juvenile court should be permitted to consider restitution claims submitted after entry of the final order. Id. at ¶ 11. could create The court pointed out that a contrary decision piecemeal appeals juvenile s probation term. 405. and may inequitably extend a Id. at 198, ¶¶ 14-15, 994 P.2d at The court therefore held that when the juvenile court sets 4 a reasonable deadline by which victims must present their restitution claims and supporting evidence, any victim who fails to comply is barred from recovery. Id. at 200, ¶ 19, 994 P.2d at 407; see also In re Kevin A., 201 Ariz. 161, 162, ¶¶ 1-2, 32 P.3d 1088, 1089 (App. 2001) (relying on Alton D. to vacate a restitution order entered after the juvenile court reopened a final disposition to grant a belated restitution request because the court lacked jurisdiction). ¶8 As in Alton D., the juvenile court in this case ordered that restitution be left open for a period of thirty days. The State does not challenge the reasonableness of this deadline and does not contend it failed to notify the victim of this deadline despite not receiving a court directive to make this notification. See Ariz. Rev. Stat. ( A.R.S. ) § 8-391(B) (2012) 1 (setting forth prosecutor s obligation to notify victim of certain matters, including matters related to restitution and disposition). When the thirty-day deadline passed without a submission by the victim, the disposition order became final and 1 Absent material revisions after the date of an alleged offense, we cite to a statute s current Westlaw version. 5 appealable without further action by the court. 2 Alton D., 196 Ariz. at 197, ¶ 10, 994 P.2d at 404 ( Requiring victims to file their claims for restitution within a reasonable deadline, after which the appeal, reaching order thus a of disposition directly prompt, furthers final becomes the resolution final and significant of juvenile subject to interest in actions. ); Kevin A., 201 Ariz. at 162, ¶ 2, 32 P.3d at 1089 ( When the time [for submitting a restitution claim] expired with no having been filed, the prior disposition became final. ). claim The court therefore lacked authority to enter a restitution order more than three months later. 340, 344, ¶ 14, 173 P.3d See In re Michelle G., 217 Ariz. 1041, 1045 (App. 2008) (holding juvenile court lacked authority to reopen final order to enter a belated restitution order even though juvenile agreed to pay restitution in plea agreement); Kevin A., 201 Ariz. at 162, ¶ 1, 32 P.3d at 1089 (same). ¶9 The State relies on Richard B., 216 Ariz. 127, 163 P.3d 1077, to argue that the juvenile court acted appropriately 2 In compliance with Arizona Rule of Juvenile Procedure 30(B)(4), the court explained to Daniel at the disposition hearing his right to appeal within fifteen days. Although the court did not specify when this period would commence, the court gave no indication it would start months later on a yet-to-be determined date. Nor could this occur in light of Daniel s speedy appeal rights. Alton D., 196 Ariz. at 197, ¶ 10, 994 P.2d at 404. In this case, the fifteen days began to run on April 8, 2011, when the disposition order became final due to lack of a restitution submission by the victim. 6 because the victim was not at fault for the late filing. reject this prosecutor argument for two reasons. Richard B., the prosecutor in First, in unlike this case the never demonstrated the victim was blameless for the late filing. at 129, ¶¶ 7-8, 163 P.3d at 1079. We Id. The State cites an anonymous comment made by voice at the July 28 restitution hearing that the victim timely provided her statement to the probation office and the department held the statement until completion of Juan s case. Putting aside the obvious lack of foundation for this statement, victim s it conflicts statement was with not the held record, pending which Juan s shows case; it the was filed on April 13 five days after the deadline. ¶10 Second, Richard B. is distinguishable. The juvenile in that case pled guilty to DUI and agreed to pay up to $3,000 in restitution. 216 Ariz. at 128, ¶ 3, 163 P.3d at 1078. The victim appeared at the disposition hearing on January 12, 2007, and told the court she could gather the necessary documentation for a restitution claim within 24 to 48 hours. 4, 163 P.3d at 1079. Id. at 129, ¶ Because the juvenile was turning eighteen the next month, the court ordered that restitution be left open for only seven days. Id. The victim faxed supporting documents to the prosecutor on time, but the state failed to file a victim statement with the court until several days after the deadline. Id. at ¶¶ 5, 7. 7 ¶11 On hearing. claim was February 2, Id. at ¶ 5. barred by the state requested a restitution Over the juvenile s objection that the Alton D., the court held a hearing on February 6 and ordered the juvenile the next day to pay $147.69 in restitution. cause to Id. at ¶¶ 6-8. extend circumstances of the the The juvenile court found good deadline case: The because of seven-day the unusual period was very short; the juvenile was close to turning eighteen; the victim filed some information about her claim before the deadline; and although the victim s statement was unverified, she was unaware of that requirement and submitted a verified statement the same day she found out. ¶12 This Id. at ¶ 8. court affirmed because there was reasonable evidence to support the juvenile court s findings of good cause to extend the restitution deadline. at 1081. We noted the Id. at 131, ¶ 20, 163 P.3d disposition order stated only that restitution would be left open for seven days, not that it would be closed thereafter. Id. at ¶ 17. We further noted that many of the concerns in Alton D. and Kevin A. were not present in that case because the juvenile court would automatically lose jurisdiction when the juvenile turned eighteen the next month. Id. at ¶ 18. undue delay. Therefore, there was no threat of indefinite or ¶13 Even Id. assuming a procedural 8 vehicle existed for the State to reopen the disposition order in this case to consider the victim s untimely filed restitution statement, unlike the prosecutor in Richard B., the prosecutor in this case never made that attempt. And the court deadline for good cause. never extended the thirty-day By the time the court entered a restitution order more than four months after accepting Daniel s plea and placing him on probation, and long after Daniel s appeal rights had expired, it clearly lacked authority to impose a restitution order. ¶14 While we acknowledge the potential unfairness of denying restitution to the victim if she timely submitted her restitution statement to the probation office and it mishandled the matter, as the State asserts, any other result would vitiate Daniel s rights to a speedy disposition supreme court s holding in Alton D. and contradict our The juvenile court was not empowered to fix any mistake by the probation department at the expense of Daniel s rights. Michelle G., 217 Ariz. at 344, ¶ 15, 173 P.3d at 1045 (noting the courts cannot save the victim from the assert a county attorney s victim s negligence restitution claim). in failing The eligible to recover damages for any negligence. to victim timely may be Id.; A.R.S. § 8-416(B). CONCLUSION ¶15 For the foregoing reasons, we vacate the court s order 9 entered July 29, 2011, to the extent it awards restitution against Daniel. /s/ Ann A. Scott Timmer, Judge CONCURRING: /s/ Patricia K. Norris, Presiding Judge /s/ Margaret H. Downie, Judge 10

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