State v. Barrs
| Decision Date | 18 June 1992 |
| Docket Number | No. 1,CA-CR,1 |
| Parties | STATE of Arizona, Appellee, v. Larry Dan BARRS, Appellant. 91-257. |
| Court | Arizona Court of Appeals |
Pursuant to a plea agreement, Larry Dan Barrs ("defendant") pled no contest to attempted burglary, a class 5 felony. Defendant was sentenced to the presumptive term of two years imprisonment and given credit for 258 days of presentence incarceration. He also was ordered to pay a $100.00 felony assessment and $10.00 in restitution. The restitution order, however, was not imposed orally at time of sentence but rather was included in the minute entry of the sentencing proceedings. We find this to be a lawful sentence imposed in an unlawful manner.
Restitution is part of a defendant's sentence, State v. Cummings, 120 Ariz. 69, 71, 583 P.2d 1389, 1391 (App.1978), and must be set forth in the oral pronouncement of sentence. See State v. Powers, 154 Ariz. 291, 295, 742 P.2d 792, 796 (1987). Powers, 154 Ariz. at 295, 742 P.2d at 796. Our supreme court recently stated that when an improperly imposed sentence is challenged on appeal, the appellate courts have jurisdiction to remand the matter to the trial court for resentencing. State v. Anderson, 171 Ariz. 34, 35-36, 827 P.2d 1129, 1130-31 (1992).
In Anderson, the supreme court remanded to the trial court for imposition of the $100.00 felony assessment fee "if the state elects to so proceed." 171 Ariz. at 36, 827 P.2d at 1131. We believe a remand for the purpose of imposing a restitution order must be treated in a slightly different manner.
We do not believe that the pursuit of restitution is a matter of the State's discretion. This court recently stated: "A.R.S. § 13-603(C) 1 imposes upon the trial court an affirmative duty to determine the amount of the victim's economic loss and to order restitution in that amount." State v. Scroggins, 168 Ariz. 8, 9, 810 P.2d 631, 632 (App.1991). The right to restitution belongs to the victim. We know of no authority that would grant the State or the court the option of not pursuing a...
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... ... Scroggins, 168 Ariz. 8, 9, 810 P.2d 631, 632 (App.1991). In an adult criminal prosecution, as in a juvenile delinquency proceeding, a trial court thus may requir[e] the timely assertion of [the] right to avoid waiver. In re Alton D., 196 Ariz. 195, 17, 994 P.2d 402, 406 (2000); see State v. Barrs, 172 Ariz. 42, 43, 833 P.2d 713, 714 (App.1992) (noting right to restitution belongs to the victim and may be waive[d] by the victim); see also Ariz. R.Crim. P. 39(b)(16) (requiring victims be informed of procedures for invoking the right to restitution). [A] trial court may impose a reasonable ... ...
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State v. Sovereign
... ... shall be present at sentencing." "Restitution is part of a defendant's sentence and must be set forth in the oral pronouncement of sentence." State v. Barrs, 172 Ariz. 42, 43, 833 P.2d 713, 714 (App. 1992) (citation omitted). "[T]he judgment and sentence are 'complete and valid' upon oral pronouncement and cannot be modified thereafter except as provided by Rule 24.3, Ariz. R. Crim. P." State v. Serrano, 234 Ariz. 491, 9, 323 P.3d 774, 777 (App ... ...
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State v. Jackson
... ... victim of the crime ... in the full amount of the economic loss as determined by the court."9 Jackson argues the trial court lost jurisdiction once it sentenced him. In doing so, he relies upon State v. Barrs, in which this Court stated: "Restitution is part of a defendant's sentence, and must be set forth in the oral pronouncement of sentence." 172 Ariz. 42, 43 (App. 1992) (citations omitted). There, we vacated a restitution order that was included in the minute entry of the sentencing proceedings but ... ...