STATE v. VENACIO

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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 STATE OF ARIZONA, ) ) Appellant, ) ) v. ) ) VINCENT BENNY GARZA VENACIO, ) ) Appellee. ) ) __________________________________) DIVISION ONE FILED: 8/1/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0711 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-113540-001 The Honorable John R Ditsworth, Judge AFFIRMED _________________________________________________________________ William G. Montgomery, Maricopa County Attorney By Keli B. Luther, Deputy County Attorney Attorneys for Appellant Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Terry Reid, Deputy Public Defender Attorneys for Appellee __________________________________________________________________ O R O Z C O, Judge ¶1 Appellant State of Arizona (the State) appeals the trial court s order denying the State s Request for Restitution Order (RRO). For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Vincent Benny Garza Venacio (Defendant) was indicted for one count of burglary in the third degree and one count of possession of burglary tools. Defendant signed a plea agreement in which he agreed to plead guilty to one count of burglary in the third agreement, degree, a Defendant class also four agreed felony. to pay As part of the restitution to the victim in an amount not to exceed $25,000. ¶3 On August 30, 2011, Defendant was sentenced to 2.5 years imprisonment. In the minute entry, the trial court noted that it would retain jurisdiction over the issue of restitution for a period of one year from the date of sentencing. The State received the necessary information to seek restitution for the victim within the one-year period but did not file the RRO until September 7, 2012. In the RRO, the State asked the trial court to order restitution in the amount of $750 to the victim and $1125.81 to her insurance company. ¶4 The trial court held a restitution hearing on October 23, 2012. At the hearing, the State repeatedly referred to the one-year deadline set by the sentencing court and admitted that it missed that deadline. the jurisdictional mandate However, the State argued that over restitution is statutory as enacted by our Legislature, and the [trial court] simply does not have authority under the Separation of Powers Doctrine to 2 say [it is] going to limit [its] own jurisdiction over the issue of restitution. The trial court denied the State s RRO, pointing out that the State had ample opportunity to set up a restitution hearing before the expiration timely appealed. of the one-year deadline. ¶5 The State pursuant to Arizona Revised Statutes We have (A.R.S.) jurisdiction sections 12- 120.21.A.1 (2003), 13-4031 (2010), and -4032.4 (2010). DISCUSSION ¶6 On appeal, we review a restitution order for an abuse of discretion. State v. Lewis, 222 Ariz. 321, 323, ¶ 5, 214 P.3d 409, 411 (App. 2009). Abuse of discretion occurs when the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice. Chapple, 135 (1983). We Ariz. 1208, 1224 n.18 the light most favorable to upholding the trial court s restitution order. See view 281, the 297 facts n.18, and 660 P.2d State v. evidence in In re Andrew A., 203 Ariz. 585, 586, ¶ 5, 58 P.3d 527, 528 (App. 2002). ¶7 when The State argues that the trial court committed error it set an arbitrary jurisdictional deadline violated the crime victim s right to obtain restitution. that The trial court s jurisdiction over restitution is set by statute. Pursuant to A.R.S. § 13-603.C 3 (2010), [i]f 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. The trial court retains jurisdiction for purposes of modifying the manner in which court-ordered payments are made until paid in full or until the defendant s sentence expires. Thus, because A.R.S. § 13-805.A (2010) (emphasis added). Defendant was sentenced to 2.5 years imprisonment, the trial court s statement that it would retain jurisdiction for only one year was incorrect. ¶8 Even so, the trial court may set and enforce deadlines for filing restitution claims. Our supreme court has held that a trial court may impose a reasonable deadline within which restitution claims must be filed. In re Alton D., 196 Ariz. 195, 196, ¶ 6, 994 P.2d 402, 403 (2000). [W]hen . . . the court sets 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. ¶9 This court recently explained that, with respect to restitution issues. claims, timeliness and jurisdiction are distinct State v. Nuckols, 229 Ariz. 266, 269, ¶ 8, 274 P.3d 536, 539 (App. 2012). In Nuckols, the defendant accepted a plea that required him to pay restitution to the victim in an amount 4 not to exceed $10,000. Id. at 267, ¶ 2, 274 P.3d at 537. The trial court sentenced the defendant to a term of imprisonment and ordered that the issue of restitution . . . remain open for 30 days. Id. at ¶ 3. The State filed the restitution claim over two months later, and the trial court ultimately denied restitution. Id. at 267-68, ¶ 3, 274 P.3d at 537-38. On appeal, this court affirmed the trial court s ruling, holding that the untimeliness of the request waived the restitution to which [the statutorily Although victim] otherwise entitled. the State Id. argued at was 268, that constitutionally ¶ the 6, 274 trial P.3d court at and 538. retained jurisdiction to order restitution past the thirty-day deadline, this court did not decide the issue because the untimeliness of the State s request provided a sufficient basis to uphold the trial court s ruling. Id. at 268-269, ¶ 7, 274 P.3d at 538-539. However, this court did note that a request for restitution is not timely simply because jurisdiction to order it. ¶10 from the superior court retains Id. at 269, ¶ 8, 274 P.3d at 539. The State contends that this case is distinguishable Nuckols because the trial court in Nuckols imposed a deadline limiting the filing of the restitution claim, whereas in this case, the minute entry suggests that the trial court imposed a deadline limiting its jurisdiction over restitution. We disagree. As indicated above, the minute entry did not limit 5 the jurisdiction of the trial court. However, the minute entry clearly stated that the State had one year to file a request for restitution, which is more time than the thirty days granted in Nuckols. Moreover, the record demonstrates the State recognized that the court had set a deadline with respect to restitution. Therefore, despite the State s arguments, we find that reasoning of Nuckols controls in the present case. court may impose reasonable deadlines on the A trial restitution claims, regardless of its retention of jurisdiction in the matter. ¶11 Thus, the trial court did not abuse its discretion by imposing a one-year deadline for the State to file a restitution claim. Therefore, the State s untimely RRO waives the victim s otherwise constitutional and statutory See id. at 268, ¶ 6, 274 P.3d at 538. 6 right to restitution. CONCLUSION ¶12 For the foregoing reasons, we affirm the trial court s order denying restitution. /S/ ____________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ___________________________________ JOHN C. GEMMILL, Presiding Judge /S/ ___________________________________ PATRICIA K. NORRIS, Judge 7

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