State v. Hon. William Barrett

State v. Hon. William Barrett

IN THE UTAH COURT OF APPEALS

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State of Utah,

Petitioner,

v.

Hon. William W. Barrett,

Respondent.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040446-CA
 

F I L E D
(July 9, 2004)
 

2004 UT App 239

 

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Original Proceeding in this Court

Attorneys: Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Petitioner

Brent M. Johnson, Salt Lake City, for Respondent

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Before Judges Bench, Greenwood, and Orme.

PER CURIAM:

This matter is before the court on the State of Utah's petition for extraordinary relief pursuant to Utah Rule of Civil Procedure 65B. The petition for relief is granted.(1)

This petition arises out of an underlying third district court case of criminal nonsupport, State v. Taylor, No. 971012761. Taylor pleaded guilty to the charge in 1998, and since then had been paying both his ongoing support obligation and a stipulated amount for his arrearage. Several review hearings were held in this matter to determine progress and resolve issues, but no restitution amount had been entered by the trial court.

At a March 2004 hearing, although both Taylor and the State agreed that the amount outstanding was in excess of $15,000, Taylor requested the trial court to enter a restitution amount of approximately $8200, forgiving the accrued interest. In an effort to be equitable, Judge Barrett announced that restitution would be set at $10,000. This restitution was revoked, however, after State counsel requested the determination of the amount of complete restitution, in addition to what was interpreted to be the court-ordered restitution of $10,000, pursuant to the Utah Crime Victims Restitution Act (the Act). See Utah Code Ann. §§ 77-38a-101 to -502 (2003). The trial court later entered its order striking all restitution for this matter, determining no amount of complete or court-ordered restitution, and providing no rationale for its decision.

The State alleges that Judge Barrett failed to comply with the requirements of the Act in revoking restitution and entering an order devoid of rationale. The Act provides that when a defendant has been convicted of criminal activity resulting in pecuniary loss, "the court shall order that the defendant make restitution" as provided for in the Act. Utah Code Ann. § 77-38a-302(1). The Act requires trial courts to make two separate restitution determinations, and defines the criteria and procedures to be followed in making those assessments. See id. § 77-38a-302(1), (2).

The trial court must determine both complete restitution, the amount necessary to compensate a victim for all pecuniary losses, and court-ordered restitution, the amount the defendant will be required to pay as part of the criminal case. See id. § 77-38a-302(2). When making these determinations, courts must consider factors specified in the Act. See id. § 77-38a-302(5). In addition to making the required restitution determinations, "the court shall make the reasons for the decision part of the court record." Id. § 77-38a-302(3).

A trial court has discretion under the Act to determine the amounts of restitution. Under the plain language of the Act, a court does not, however, have discretion to not make restitution determinations with supporting findings. By express language, the Act imposes a nondiscretionary duty upon a judge to make the appropriate determinations regarding restitution, along with the rationale to explain the decision. See id. § 77-38a-302(2), (3); see also State v. Stirba, 972 P.2d 918, 922 (Utah Ct. App. 1998) (noting former provision "imposed a nondiscretionary duty" to make appropriate restitution). Thus, under the Act, Judge Barrett was required to perform three separate acts: first, he was bound to determine the amount necessary for complete restitution; second, he was bound to determine court-ordered restitution; and third, he was bound to explain his rationale with findings on the required factors made on the record. He did not do any of these required acts.

The subject order does not comply with the Act's requirements. The order provides only that restitution is stricken. It does not set either complete or court-ordered restitution amounts. The order does not provide any rationale for the decision, nor does it even imply that statutory factors were considered. The record of the hearing provides no more indication that statutorily required factors were considered. From all that appears, Judge Barrett did not consider the factors specified in the Act.(2)

Judge Barrett did not determine complete restitution, nor court-ordered restitution, and did not make findings on the record. As a result, he has "failed to perform an act required by law." Utah R. Civ. P. 65B(d)(2)(B). Accordingly, relief is granted, and Judge Barrett must consider the statutorily required factors, and make the required determinations of complete and court-ordered restitution amounts, with the supporting reasons on the record, in the matter of State v. Taylor. Because relief is granted under rule 65B(d)(2)(B), and Judge Barrett is required to make the required determinations and findings, we decline to address abuse of discretion under rule 65B(d)(2)(A).

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

Pamela T. Greenwood, Judge

______________________________

Gregory K. Orme, Judge

1. Pursuant to Utah Rule of Appellate Procedure 2, in the interest of expediting a decision in this case, this court suspends the requirement of oral argument as provided in Utah Rule of Appellate Procedure 19(c). Because the issues in this matter are resolved by interpretation of clear statutory language, oral argument would not significantly aid the resolution of this case. See Utah R. App. P. 2, 19(c).

2. The sole rationale for striking restitution apparent from the hearing record is that the Office of Recovery Services could pursue Taylor in a civil proceeding, which is not a statutory factor. The court's assumption is questionable under the Act. The Act provides that the amount of complete restitution "shall be entered" on the civil docket and is enforceable as a civil judgment. Utah Code Ann. § 77-38a-401 (2003). Because the court did not determine complete restitution, it is unclear whether there is an amount that could be pursued civilly after the close of the criminal case.