State v. Zaputil

• Citation: 207 P.3d 678,220 Ariz. 425
• Decision Date: 10 November 2008
• Docket Number: No. 1 CA-CR 07-0644.,1 CA-CR 07-0644.
• Parties: STATE of Arizona, Appellant, v. Michael ZAPUTIL, Appellee.
• Court: Arizona Court of Appeals

207 P.3d 678

220 Ariz. 425

STATE of Arizona, Appellant, v. Michael ZAPUTIL, Appellee.

No. 1 CA-CR 07-0644.

Court of Appeals of Arizona, Division 1, Department C.

November 10, 2008.

Review Denied April 20, 2009.

Theresa M. Armendarez, Phoenix, Attorney for Appellee.

Andrew P. Thomas, Maricopa County Attorney By Lisa M. Martin, Deputy County Attorney, Phoenix, Attorneys for Appellant.

OPINION

HALL, Judge.

¶ 1 The State of Arizona appeals the trial court's ruling denying the victim's claim for restitution. The trial court denied the claim based on a finding that it lacked jurisdiction to order restitution because the judgment of guilt had been set aside under Arizona Revised Statutes (A.R.S.) section 13-907 (Supp. 2006). For reasons that follow, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2 On September 27, 2004, Michael Zaputil (Zaputil) pled guilty pursuant to a plea agreement to an amended charge of theft, a class 1 misdemeanor. The charge stemmed from Zaputil removing a fence that belonged to the victim. The agreement stipulated that Zaputil would pay restitution to the victim not to exceed five thousand dollars. In accordance with the plea agreement, the trial court placed Zaputil on probation for a period of one year and scheduled a hearing for October 25, 2004, to determine the amount of restitution.

¶ 3 At the request of the parties, the restitution hearing was continued several times and then vacated on February 14, 2005, pending the outcome of a Rule 32 post-conviction relief proceeding commenced by Zaputil. In vacating the hearing, the trial court stated that it retained jurisdiction over the matter of restitution. Later that same year, the hearing was reset following the trial court's summary dismissal of the petition for post-conviction relief. The hearing was continued several more times pending appellate review of the post-conviction proceedings and then vacated in February 2006 with the trial court once again retaining jurisdiction with respect to restitution.

¶ 4 In July 2006, this Court denied review of the dismissal of Zaputil's petition for post-conviction relief. After review was also denied by the Arizona Supreme Court in November 2006, the trial court reset the restitution hearing for April 4, 2007. The hearing was again continued several more times at the request of the parties and eventually held on June 13, 2007.

¶ 5 After the restitution hearing was reset in 2007, Zaputil moved to have it vacated on the grounds that the trial court no longer had jurisdiction to order restitution because his probation had been completed and his conviction had been set aside pursuant to A.R.S. § 13-907. In opposing the motion, the State argued: (1) restitution is mandatory; (2) the court has continuing jurisdiction to enforce the plea agreement; and (3) the order setting aside the judgment of guilt is void for fraud.

¶ 6 At the restitution hearing, the trial court took the issue of its jurisdiction under advisement and heard testimony from the victim on the restitution claim. The court thereafter ruled that the victim had substantiated a claim for restitution in the amount of $1,906.90, but concluded that it had lost jurisdiction to order restitution when Zaputil's application to have the judgment of guilt set aside was granted on October 26, 2006. The State timely appealed. We have jurisdiction pursuant to Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031, and -4032(4) (2001).

DISCUSSION

¶ 7 The issue of the trial court's jurisdiction over the restitution claim presents a pure question of law requiring this court to apply basic tenets of statutory construction. Thus, we review the trial court's ruling de novo. In re Stephanie N., 210 Ariz. 317, 318, ¶ 5, 110 P.3d 1280, 1281 (App. 2005).

¶ 8 The trial court based its denial of the restitution claim on A.R.S. § 13-907. This statute reads, in relevant part:

A. [E]very person convicted of a criminal offense, on fulfillment of the conditions of probation or sentence and discharge by the court, may apply to the judge, justice of the peace or magistrate who pronounced sentence or imposed probation or such judge, justice of the peace or magistrate's successor in office to have the judgment of guilt set aside. The convicted person shall be informed of this right at the time of discharge.

...

C. If the judge, justice of the peace or magistrate grants the application, the judge, justice of the peace or magistrate shall set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction other than those imposed by:

1. The department of transportation pursuant to § 28-3304, 28-3306, 28-3307, 28-3308 or 28-3319, except that the conviction may be used as a conviction if such conviction would be admissible had it not been set aside and may be pleaded and proved in any subsequent prosecution of such person by the state or any of its subdivisions for any offense or used by the department of transportation in enforcing § 28-3304, 28-3306, 28-3307, 28-3308 or 28-3319 as if the judgment of guilt had not been set aside.

2. The game and fish commission pursuant to § 17-314 or 17-340.

(Emphasis added.) Specifically, the trial court construed the portion of A.R.S. § 13-907(C) directing that the convicted person be "released from all penalties and disabilities resulting from the conviction" as precluding any further action by the trial court in regards to restitution.

¶ 9 In construing a statute, our duty is to ascertain and give effect to the legislature's intent. In re Adam P., 201 Ariz. 289, 291, ¶ 12, 34 P.3d 398, 400 (App. 2001). To determine the intent of the legislature, we first look at the wording of the statute. Id. Unless otherwise defined, we give words and phrases contained in statutes their ordinary meaning unless it appears from their context that another meaning is intended. State v. French, 166 Ariz. 247, 248, 801 P.2d 482, 483 (App.1990). "We may also examine the subject matter, effects, consequences, reason and spirit of the statutes." State v. Iniguez, 169 Ariz. 533, 536, 821 P.2d 194, 197 (App.1991). Applying these principles, we hold that A.R.S. § 13-907(C) does not support the conclusion reached by the trial court that entry of a set-aside order precludes a subsequently entered order setting the amount of restitution that defendant previously agreed to pay.

¶ 10 In Arizona, crime victims have a constitutional right to restitution from the person convicted of the criminal conduct that caused the victim's loss. Ariz. Const. art. 2, § 2.1(A)(8). "If a person is convicted of an offense, the court shall require the convicted person to make restitution ... in the full amount of the economic loss as determined by the court...." A.R.S. § 13-603(C) (Supp.2007). Thus, restitution is mandatory under our sentencing scheme. State v. Lindsley, 191 Ariz. 195, 197, 953 P.2d 1248, 1250 (App.1997); see also State v. Zierden, 171 Ariz. 44, 45, 828 P.2d 180, 181 (1992) ("The trial court has the affirmative duty to require a defendant convicted of a crime to make full restitution for the economic loss sustained by the victim."). When the trial court does not have sufficient information to order restitution, it is authorized to conduct a hearing. A.R.S. § 13-804(G) (2001).

¶ 11 The problem with the trial court's decision is that, even though it is part of the sentencing process, restitution is not a penalty or a disability. Webster's dictionary defines "penalty" as "[a] punishment established by law or authority for a crime or offense." Webster's II New College Dictionary 812 (1995). In contrast, our case law is clear that restitution is not a punishment exacted by the state. State v. Fancher, 169 Ariz. 266, 268, 818 P.2d 251, 253 (App.1991). Instead, its purpose is to make the victim whole. Id.; see also In re Estate of Vigliotto, 178 Ariz. 67, 69, 870 P.2d 1163, 1165 (App.1993) (holding that because restitution is not punishment, unlike criminal penalties, restitution order survives death of defendant); State v. Steffy, 173 Ariz. 90, 94, 839 P.2d 1135, 1139 (App.1992) (noting "restitution is not intended to be punitive in nature"); State v. Howard, 163 Ariz. 47, 51, 785 P.2d 1235, 1239 (App.1989) ("The purpose of mandatory restitution is to make the victim whole, not to punish."); but cf. A.R.S. § 13-603(C) (court-ordered restitution is criminal penalty for purpose of federal bankruptcy).

¶ 12 Nor does the requirement to pay restitution constitute a disability. The term "disability" is defined as "[a] legal incapacity or disqualification." Webster's at 322. A restitution order does not result in any legal disqualification or incapacity on the part of a defendant; it is simply a remedial measure that forces him "to recognize the specific consequences of his criminal activity and accept responsibility for those consequences." Steffy, 173 Ariz. at 94, 839 P.2d at 1139 (quoting State v. Merrill, 136 Ariz. 300, 302, 665 P.2d 1022, 1024 (App.1983)). Given the constitutional and statutorily mandated nature of the right to restitution, we will not expand A.R.S. § 13-907 beyond the plain meaning of its words to release a person from an obligation to make restitution. See Roberts v. Spray, 71 Ariz. 60, 70, 223 P.2d 808, 814 (1950) (noting statutes are to be read in light of the constitution and other statutes relating to the same matter).

¶ 13 Zaputil agreed to pay restitution to the victim as part of his plea agreement. The agreement provided that Zaputil would "pay restitution to all victims on all counts, whether dismissed or amended." A defendant may be properly ordered to pay restitution on a dismissed charge when he has consented in a plea agreement. See State v. Proctor, 196 Ariz. 557, 565, ¶ 29, 2 P.3d 647, 655 (App.1998) ("It is well settled that a defendant may be...