First Regular Session H.B. 2269
PROPOSED AMENDMENT
SENATE AMENDMENTS TO H.B. 2269
(Reference to House engrossed bill)
Page 7, between lines 7 and 8, insert:
"Sec. 8. Section 13-805, Arizona Revised Statutes, is amended to read:
13-805. Jurisdiction
A. The trial court shall retain jurisdiction of the case as follows:
1. for all fines, penalties, surcharges and assessments, for purposes of ordering, modifying and enforcing the manner in which court‑ordered payments are made until paid in full or until the defendant's sentence expires.
2. FOR ALL RESTITUTION ORDERS IN FAVOR OF A VICTIM, INCLUDING LIENS AND CRIMINAL RESTITUTION ORDERS, FOR PURPOSES OF ORDERING, MODIFYING AND ENFORCING THE MANNER IN WHICH PAYMENTS ARE MADE UNTIL PAID IN FULL.
B. At the time the defendant is ordered to pay restitution by the court, the court may enter a criminal restitution order in favor of each person who is entitled to restitution for the unpaid balance of any restitution order. A criminal restitution order does not affect any other monetary obligation imposed on the defendant pursuant to law.
C. At the time the defendant completes the defendant's period of probation or the defendant's sentence or the defendant absconds from probation or the defendant's sentence, the court shall enter both:
1. A criminal restitution order in favor of the state for the unpaid balance, if any, of any fines, costs, incarceration costs, fees, surcharges or assessments imposed.
2. A criminal restitution order in favor of each person entitled to restitution for the unpaid balance of any restitution ordered, if a criminal restitution order is not issued pursuant to subsection B of this section.
D. A JUSTICE COURT OR MUNICIPAL COURT SHALL ENTER A CRIMINAL RESTITUTION ORDER WITHIN ONE YEAR AFTER THE DATE OF THE ORIGINAL RESTITUTION ORDER.
D. e. The clerk of the court shall notify each person who is entitled to restitution of the criminal restitution order.
E. f. A criminal restitution order may be recorded and is enforceable as any civil judgment, except that a criminal restitution order does not require renewal pursuant to section 12‑1611 or 12‑1612. Enforcement of a criminal restitution order by any person who is entitled to restitution or by the state includes the collection of interest that accrues at a rate of ten percent per annum. A criminal restitution order does not expire until paid in full. A FILING FEE, RECORDING FEE OR ANY OTHER CHARGE IS NOT REQUIRED FOR RECORDING A CRIMINAL RESTITUTION ORDER.
F. g. All monies paid pursuant to a criminal restitution order entered by the superior court shall be paid to the clerk of the superior court.
G. h. Monies received as a result of a criminal restitution order entered pursuant to this section shall be distributed in the following order of priority:
1. Restitution ordered that is reduced to a criminal restitution order.
2. Associated interest.
H. i. The interest accrued pursuant to subsection E f of this section does not apply to fees imposed for collection of the court ordered payments.
I. j. A criminal restitution order is a criminal penalty for the purposes of a federal bankruptcy involving the defendant.
Sec. 9. Section 13-806, Arizona Revised Statutes, is amended to read:
13-806. Restitution lien
A. The state or any person entitled to restitution pursuant to a court order may file in accordance with this section a restitution lien. A filing fee, recording fee or any other charge is not required for filing a restitution lien.
B. A restitution lien shall be signed by the attorney representing the state in the criminal action or by a magistrate and shall set forth all of the following information:
1. The name and date of birth of the defendant whose property or other interests are subject to the lien.
2. The present residence or principal place of business of the person named in the lien, if known.
3. The criminal proceeding pursuant to which the lien is filed, including the name of the court, the title of the action and the court's file number.
4. The name and address of the attorney representing the state in the proceeding pursuant to which the lien is filed or the name and address of the person entitled to restitution pursuant to a court order filing the lien.
5. A statement that the notice is being filed pursuant to this section.
6. The amount of restitution the defendant in the proceeding has been ordered to pay or an estimated amount of economic loss caused by the offense alleged in the proceeding if no restitution order has been entered yet.
7. A statement that the total amount of restitution owed will change and that the clerk of the court in which the proceeding was or is pending shall maintain a record of the outstanding balance.
C. A restitution lien may be filed by:
1. A prosecutor in a criminal proceeding in which there was an economic loss after the filing of a misdemeanor complaint or felony information or indictment. At the time of arraignment the prosecutor shall give the defendant notice of any restitution lien filed.
2. A victim in a criminal proceeding after restitution is determined and ordered by the trial court following pronouncement of the judgment and sentence.
D. A VICTIM IN A CRIMINAL PROCEEDING WHO SUFFERS AN ECONOMIC LOSS MAY FILE A REQUEST WITH THE COURT FOR A PRECONVICTION RESTITUTION LIEN AFTER THE FILING OF A MISDEMEANOR COMPLAINT OR FELONY INFORMATION OR INDICTMENT.
D. e. A restitution lien is perfected against interests in personal property by filing the lien with the secretary of state, except that in the case of titled motor vehicles it shall be filed with the department of transportation motor vehicle division. A restitution lien is perfected against interests in real property by filing the lien with the county recorder of the county in which the real property is located. The state or a victim may give the additional notice of the lien as either deems appropriate.
E. f. The filing of a restitution lien in accordance with this section creates a lien in favor of the state or the victim in all of the following:
1. Any interest of the defendant in real property situated in the county in which the lien is filed then maintained or thereafter acquired in the name of the defendant identified in the lien.
2. Any interest of the defendant in personal property situated in this state then maintained or thereafter acquired in the name of the defendant identified in the lien.
3. Any property identified in the lien to the extent of the defendant's interest in the property.
F. g. The filing of a restitution lien under this section is notice to all persons dealing with the person or property identified in the lien of the state's or victim's claim. The lien created in favor of the state or the victim in accordance with this section is superior and prior to the claims or interests of any other person, except a person possessing any of the following:
1. A valid lien perfected before the filing of the restitution lien.
2. In the case of real property, an interest acquired and recorded before the filing of the restitution lien.
3. In the case of personal property, an interest acquired before the filing of the restitution lien.
G. h. This section does not limit the right of the state or any other person entitled to restitution to obtain any order or injunction, receivership, writ, attachment, garnishment or other remedy authorized by law.
H. i. Following the entry of the judgment and sentence in the criminal case, if the trial court sentences the defendant to pay a fine or awards costs of investigation or prosecution, the state may file a restitution lien pursuant to this section for the amount of the fine or costs, except that a lien may not be perfected against a titled motor vehicle.
I. j. A criminal restitution lien is a criminal penalty for the purposes of any federal bankruptcy involving the defendant.
K. THE COURT SHALL ORDER THE RELEASE OF ANY PRECONVICTION RESTITUTION LIEN THAT HAS BEEN FILED OR PERFECTED IF THE DEFENDANT IS ACQUITTED OR THE STATE DOES NOT PROCEED WITH THE PROSECUTION.
J. l. A self-service storage facility that forecloses its lien pursuant to section 33‑1704 may sell personal property that is subject to a restitution lien. The proceeds from the sale, less the reasonable costs of sale, shall be paid to the restitution lienholder to satisfy the restitution lien as prescribed in section 33‑1704. A person who is a good faith purchaser pursuant to section 33‑1704 and who purchases personal property that is subject to a restitution lien takes the property free and clear of the rights of the restitution lienholder.
Sec. 10. Section 13-810, Arizona Revised Statutes, is amended to read:
13-810. Consequences of nonpayment of fines, fees, restitution or incarceration costs
A. In addition to any other remedy provided by law, including a writ of execution or other civil enforcement, if a defendant who is sentenced to pay a fine, a fee or incarceration costs defaults in the payment of the fine, fee or incarceration costs or of any installment as ordered, the clerk of the court imposing the fine, fee or incarceration costs shall notify the prosecutor and the sentencing court. The court, on motion of the prosecuting attorney or on its own motion, shall require the defendant to show cause why the defendant's default should not be treated as contempt and may issue a summons or a warrant of arrest for the defendant's appearance.
B. In addition to any other remedy provided by law, including a writ of execution or other civil enforcement, if a defendant who is ordered to pay restitution defaults in the payment of the restitution or of any installment as ordered, the clerk of the court that imposed the restitution shall notify the prosecutor and the sentencing court on a monthly basis. The court, on motion of the prosecuting attorney, on petition of any person entitled to restitution pursuant to a court order or on its own motion, shall require the defendant to show cause why the defendant's default should not be treated as contempt and may issue a summons or a warrant of arrest for the defendant's appearance.
C. IN ADDITION TO ANY OTHER REMEDY PROVIDED BY LAW, INCLUDING A WRIT OF EXECUTION OR OTHER CIVIL ENFORCEMENT, THE COURT, ON RECEIPT OF A PETITION AND ISSUANCE OF AN ORDER TO SHOW CAUSE, HAS JURISDICTION TO PRESERVE RIGHTS OVER ALL RESTITUTION LIENS ENTERED PURSUANT TO SECTION 13-806, SUBSECTION B, AND PERFECTED PURSUANT TO SECTION 13-806, SUBSECTION E.
C. d. At any hearing on the order to show cause the court, the prosecuting attorney or a person entitled to restitution may examine the defendant under oath concerning the defendant's financial condition, employment and assets or on any other matter relating to the defendant's ability to pay restitution.
D. e. If the court finds that the defendant has wilfully failed to pay a fine, a fee, restitution or incarceration costs or finds that the defendant has intentionally refused to make a good faith effort to obtain the monies required for the payment, the court shall find that the default constitutes contempt and may do one of the following:
1. Order the defendant incarcerated in the county jail until the fine, fee, restitution or incarceration costs, or a specified part of the fine, fee, restitution or incarceration costs, is paid.
2. Revoke the defendant's probation, parole or community supervision and sentence the defendant to prison pursuant to law.
3. 2. Enter an order pursuant to section 13‑812. The levy or execution for the collection of a fine, a fee, restitution or incarceration costs does not discharge a defendant who is incarcerated for nonpayment of the fine, fee, restitution or incarceration costs until the amount of the fine, fee, restitution or incarceration costs is collected.
4. 3. Order the defendant to perform community restitution.
E. f. If the court finds that the default is not wilful and that the defendant cannot pay despite sufficient good faith efforts to obtain the monies, the court may take any lawful action including:
1. Modify the manner in which the restitution, fine, fee or incarceration costs are to be paid.
2. Enter any reasonable order that would assure compliance with the order to pay.
3. Enter an order pursuant to section 13‑812. The levy or execution for the collection of a fine, a fee, restitution or incarceration costs does not discharge a defendant incarcerated for nonpayment of the fine, fee, restitution or incarceration costs until the amount of the fine, fee, restitution or incarceration costs is collected.
F. g. If a fine, a fee, restitution or incarceration costs are
imposed on an enterprise it is the duty of the person or persons authorized to make disbursement from the assets of the enterprise to pay them from those assets, and their failure to do so shall be held a contempt unless they make the showing required in subsection A or B of this section.
Sec. 11. Section 13-4402, Arizona Revised Statutes, is amended to read:
13-4402. Implementation of rights and duties
A. Except as provided in sections 13‑4404 and 13‑4405, the rights and duties that are established by this chapter arise on the arrest or formal charging of the person or persons who are alleged to be responsible for a criminal offense against a victim. The rights and duties continue to be enforceable pursuant to this chapter until the final disposition of the charges, including acquittal or dismissal of the charges, all post‑conviction release and relief proceedings and the discharge of all criminal proceedings relating to restitution. If a defendant is ordered to pay restitution to a victim, the rights and duties continue to be enforceable by the court until restitution is paid or a criminal restitution order is entered in favor of the victim pursuant to section 13‑805.
B. If a defendant's conviction is reversed and the case is returned to the trial court for further proceedings, the victim has the same rights that were applicable to the criminal proceedings that led to the appeal or other post‑conviction relief proceeding.
C. After the final termination of a criminal prosecution by dismissal with prejudice or acquittal, a person who has received notice and the right to be present and heard pursuant to the victims' rights act, article II, section 2.1, Constitution of Arizona, any implementing legislation or court rule is no longer entitled to such rights."
Renumber to conform
Page 9, between lines 31 and 32, insert:
"Sec. 14. Section 13-4408, Arizona Revised Statutes, is amended to read:
13-4408. Pretrial notice
A. Within seven days after the prosecutor charges a criminal offense by complaint, information or indictment and the accused is in custody or has been served a summons, the prosecutor's office shall give the victim notice of the following:
1. The victim's rights under the victims' bill of rights, article II, section 2.1, Constitution of Arizona, any implementing legislation and court rule.
2. The charge or charges against the defendant and a clear and concise statement of the procedural steps involved in a criminal prosecution.
3. The procedures a victim shall follow to invoke his right to confer with the prosecuting attorney pursuant to section 13‑4419.
4. The person within the prosecutor's office to contact for more information.
5. THE VICTIM'S RIGHT TO REQUEST A PRECONVICTION RESTITUTION LIEN PURSUANT TO SECTION 13-806.
B. Notwithstanding the provisions of subsection A of this section, if a prosecutor declines to proceed with a prosecution after the final submission of a case by a law enforcement agency at the end of an investigation, the prosecutor shall, before the decision not to proceed is final, notify the victim and provide the victim with the reasons for declining to proceed with the case. The notice shall inform the victim of his right on request to confer with the prosecutor before the decision not to proceed is final. Such notice applies only to violations of a state criminal statute."
Renumber to conform
Page 10, after line 42, insert:
"Sec. 17. Section 22-116, Arizona Revised Statutes, is amended to read:
22-116. Funds in possession of justice of the peace; deposit with county treasurer; payment to claimants; disposition of unclaimed funds
A. On or before April 1 each year, every justice of the peace whose court is in possession of funds obtained from any source for more than two years shall pay the funds to the county treasurer and shall provide the treasurer with an itemized list showing the name of the person depositing the money with the justice, the date of the deposit and the amount.
B. The treasurer shall deposit the money in an account known as the suspension account, and at any time within one year from deposit of the funds the amount owing any person shall be returned and paid to the person on warrant issued by the board of supervisors. The board of supervisors shall require strict proof that the money should be repaid to the person claiming it, and the warrant, if issued, shall be paid from the suspension fund.
C. THE TREASURER SHALL DEPOSIT MONIES FROM UNCLAIMED VICTIM RESTITUTION PAYMENTS IN THE VICTIM COMPENSATION AND ASSISTANCE FUND ESTABLISHED BY SECTION 41-2407.
C. d. One year after deposit of the money with the county treasurer all money remaining in the suspension account for which no claim has been filed shall be deposited in the general fund of the county."
Amend title to conform