HB2376 - 522R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 13-603, Arizona Revised Statutes, is amended to read:

START_STATUTE13-603. Authorized disposition of offenders

A. Every person convicted of any offense defined in this title or defined outside this title shall be sentenced in accordance with this chapter and chapters 7, 8 and 9 of this title unless otherwise provided by law.

B. If a person is convicted of an offense, the court, if authorized by chapter 9 of this title, may suspend the imposition or execution of sentence and grant such person a period of probation except as otherwise provided by law. The sentence is tentative to the extent that it may be altered or revoked in accordance with chapter 9 of this title, but for all other purposes it is a final judgment of conviction.

C. If 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 or to the immediate family of the victim if the victim has died, in the full amount of the economic loss as determined by the court and in the manner as determined by the court or the court's designee pursuant to chapter 8 of this title. If an amount certain for restitution is stipulated to in a plea agreement and the plea agreement is entered and accepted by the court, the court shall order the stipulated restitution amount to be paid. Restitution ordered pursuant to this subsection shall be paid to the clerk of the court for disbursement to the victim and is a criminal penalty for the purposes of a federal bankruptcy involving the person convicted of an offense.

D. If the court imposes probation it may also impose a fine as authorized by chapter 8 of this title.

E. If a person is convicted of an offense and not granted a period of probation, or when probation is revoked, any of the following sentences may be imposed:

1. A term of imprisonment authorized by this chapter or chapter 7 of this title.

2. A fine authorized by chapter 8 of this title. The sentence is tentative to the extent it may be modified or revoked in accordance with chapter 8 of this title, but for all other purposes it is a final judgment of conviction. If the conviction is of a class 2, 3 or 4 felony, the sentence cannot consist solely of a fine.

3. Both imprisonment and a fine.

4. Intensive probation, subject to the provisions of chapter 9 of this title.

5. Intensive probation, subject to the provisions of chapter 9 of this title, and a fine.

6. A new term of probation or intensive probation.

F. If an enterprise is convicted of any offense, a fine may be imposed as authorized by chapter 8 of this title.

G. If a person or an enterprise is convicted of any felony, the court may, in addition to any other sentence authorized by law, may order the forfeiture, suspension or revocation of any charter, license, permit or prior approval granted to the person or enterprise by any department or agency of the state or of any political subdivision.

H. A court authorized to pass sentence upon on a person convicted of any offense defined within or without this title shall have a duty to determine and impose the punishment prescribed for such offense.

I. If a person is convicted of a felony offense and the court sentences the person to a term of imprisonment, the court at the time of sentencing shall impose on the convicted person a term of community supervision. The term of community supervision shall be served consecutively to the actual period of imprisonment if the person signs and agrees to abide by conditions of supervision established by the state department of corrections. Except pursuant to subsection J of this section, the term of community supervision imposed by the court shall be for a period equal to one day for every seven days of the sentence or sentences imposed.

J. In calculating the term of community supervision, all fractions shall be decreased to the nearest month, except for a class 5 or 6 felony which shall not be less than one month.

K. Notwithstanding subsection I of this section, if the court sentences a person to serve a consecutive term of probation immediately after the person serves a term of imprisonment, the court may waive community supervision and order that the person begin serving the term of probation upon on the person's release from confinement. The court may retroactively waive the term of community supervision or that part remaining to be served if the community supervision was imposed before July 21, 1997. If the court waives community supervision, the term of probation imposed shall be equal to or greater than the term of community supervision that would have been imposed. If the court does not waive community supervision, the person shall begin serving the term of probation after the person serves the term of community supervision. The state department of corrections shall provide reasonable notice to the probation department of the scheduled release of the inmate from confinement by the department.

L. If at the time of sentencing the court is of the opinion that a sentence that the law requires the court to impose is clearly excessive, the court may enter a special order allowing the person sentenced to petition the board of executive clemency for a commutation of sentence within ninety days after the person is committed to the custody of the state department of corrections. If the court enters a special order regarding commutation, the court shall set forth in writing its specific reasons for concluding that the sentence is clearly excessive. The court shall allow both the state and the victim to submit a written statement on the matter. The court's order, and reasons for its order, and the statements of the state and the victim shall be sent to the board of executive clemency.END_STATUTE

Sec. 2. Section 13-804, Arizona Revised Statutes, is amended to read:

START_STATUTE13-804. Restitution for offense causing economic loss; fine for reimbursement of public monies

A. On a defendant's conviction for an offense causing economic loss to any person, the court, in its sole discretion, may order that all or any portion of the fine imposed be allocated as restitution to be paid by the defendant to any person who suffered an economic loss caused by the defendant's conduct.

B. In ordering restitution for economic loss pursuant to section 13‑603, subsection C or subsection A of this section, the court shall consider all losses caused by the criminal offense or offenses for which the defendant has been convicted. If an amount certain for restitution is stipulated to in a plea agreement and the plea agreement is entered and accepted by the court, the court shall order the stipulated restitution amount to be paid.

C. The court shall not consider the economic circumstances of the defendant in determining the amount of restitution.

D. Restitution payments that are ordered pursuant to section 13‑603 and this section shall not be stayed if the defendant files a notice of appeal, and the payments may be held by the court pending the outcome of an appeal.

E. After the court determines the amount of restitution, the court or a staff member designated by the court, including a probation officer, shall specify the manner in which the restitution is to be paid. In deciding the manner in which the restitution is to be paid, the court or a staff member designated by the court, including a probation officer, shall make reasonable efforts to contact any victim who has requested notice pursuant to sections 13‑4415 and 13‑4417, shall take into account the views of the victim and shall consider the economic circumstances of the defendant. In considering the economic circumstances of the defendant, the court shall consider all of the defendant's assets and income, including workers' compensation and social security benefits. The court shall make all reasonable efforts to ensure that all persons who are entitled to restitution pursuant to a court order promptly receive full restitution. The court may enter any reasonable order necessary to accomplish this. If a victim has received reimbursement for the victim's economic loss from an insurance company, a crime victim compensation program funded pursuant to section 41‑2407 or any other entity, the court shall order the defendant to pay the restitution to that entity. If a victim has received only partial reimbursement for the victim's economic loss, the court shall order the defendant to pay restitution first to the victim and then to the entity that partially reimbursed the victim. If a probation, parole or community supervision officer has reason to believe that court ordered restitution is not being made, the officer shall report to the court supervising the probationer or the board of executive clemency that the defendant has failed to make restitution in a timely manner and the court or the board of executive clemency may revoke the defendant's probation, parole or community supervision.

F. If more than one defendant is convicted of the offense that caused the loss, the defendants are jointly and severally liable for the restitution.

G. If the court does not have sufficient evidence to support a finding of the amount of restitution or the manner in which the restitution should be paid, it may conduct a hearing on the issue according to procedures established by court rule. The court may call the defendant to testify and to produce information or evidence. The state does not represent persons who have suffered economic loss at the hearing but may present evidence or information and make an argument to the court that is relevant to the issue of restitution.

H. After making the determinations in subsection B of this section the trial court shall enter a restitution order for each defendant that sets forth all of the following:

1. The total amount of restitution the defendant owes all persons.

2. The total amount of restitution owed to each person.

3. The manner in which the restitution is to be paid.

I. The restitution order under subsection H of this section may be supported by evidence or information introduced or submitted to the court before sentencing or any evidence previously heard by the judge during the proceedings.

J. A restitution lien shall be created in favor of the state for the total amount of the restitution.

K. A restitution lien shall be created in favor of the state for the total amount of the fine, surcharges, assessments, costs, incarceration costs and fees ordered, if any, except that a lien may not be perfected against a titled motor vehicle.

L. Notwithstanding any other law, a restitution lien is created in favor of a victim of the defendant ordered to make restitution. Monies received monthly from the defendant shall be applied first to satisfy the restitution order entered by the court and the payment of any restitution in arrears. Any monies that are owed by this state to a person who is under a restitution order shall be assigned first to discharge the restitution order, including any tax refund that is owed to the defendant.

M. If the defendant, the state or persons entitled to restitution pursuant to a court order disagree with the manner of payment established in subsection E of this section, the defendant, court or person entitled to restitution may petition the court at any time to change the manner in which the restitution is paid. Before modifying the order pertaining to the manner in which the restitution is paid, the court shall give notice and an opportunity to be heard to the defendant, the state and, on request, any persons entitled to restitution pursuant to a court order.END_STATUTE

Sec. 3. Section 13-4437, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4437. Standing to invoke rights; recovery of damages; right to counsel

A. The rights enumerated in the victims' bill of rights, article II, section 2.1, Constitution of Arizona, any implementing legislation or court rules belong to the victim. The victim has standing to seek an order, to bring a special action, or to file a notice of appearance in an appellate proceeding, seeking to enforce any right or to challenge an order denying any right guaranteed to victims under the victims' bill of rights, article II, section 2.1, Constitution of Arizona, any implementing legislation or court rules. In asserting any right, the victim has the right to be represented by personal counsel at the victim's expense.

B. A victim has the right to recover damages from a governmental entity responsible for the intentional, knowing or grossly negligent violation of the victim's rights under the victims' bill of rights, article II, section 2.1, Constitution of Arizona, any implementing legislation or court rules. Nothing in this section alters or abrogates any provision for immunity provided for under common law or statute.

C. At the request of the victim, the prosecutor may assert any right to which the victim is entitled.

D. On the filing of a notice of appearance and if present, counsel for the victim shall be included in all bench conferences and in chambers meetings and sessions with the trial court that directly involve a victim's right enumerated in article II, section 2.1, Constitution of Arizona.

E. Notwithstanding any other law and Without limiting any rights and powers of the victim, the victim has the right to present evidence or information and to make an argument to the court, personally or through counsel, at any proceeding to determine the amount of restitution pursuant to section 13‑804.END_STATUTE

Sec. 4. Legislative intent

It is the intent of the legislature to protect the rights of crime victims, including the right to receive prompt restitution from the person who is convicted of the criminal conduct that caused the victim's loss or injury. The legislature finds that crime victims in this state have constitutional rights to justice and due process, to be treated with fairness, to restitution and to have all rules governing criminal procedure protect victims' rights and to have these rules be subject to amendment or repeal by the legislature to ensure the protection of these rights. The legislature has the constitutional authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims. Sections 13-603, 13-804 and 13-4437, Arizona Revised Statutes, as amended by this act, are amended pursuant to these rights and this constitutional grant of authority.