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State V Hovey - Economic Circumstances and Restitution Payments in Arizona

State v. Hovey
Arizona Court of Appeals, Division One, Department E
June 8, 1993

Holding: A trial court is required to consider a defendant’s economic circumstances prior to imposing an increased restitution fine.

Why This Case is Important: It is imperative that a defendant regularly maintains his restitution payments. Failure to do so may result in the revocation of probation, which could eventually lead to harsher punishment. However, that manner in how the fine is to be paid must be commensurate with a defendant’s economic circumstances.

Arizona statutory law requires the court to look to a defendant's economic circumstances in determining the manner in which the restitution fine is to be paid. As such, a defendant’s employment, social status, criminal history, and other financial indicators are relevant to assessing a restitution fine. At any given time, a defendant may petition the court to change the manner in which his restitution is paid depending on changes to his economic circumstances.

State v. Hovey tells us that a court must also consider a defendant’s economic circumstances when increasing an existing restitution fine. A court cannot increase a restitution fine if there is evidence based on a defendant’s circumstances that he will not be able to keep up with payments towards the fine. As a result, a trial court will abuse its discretion by increasing restitution fines where a defendant presents evidence that he is unable to pay the fines.

Facts of This Case: The defendant in this case pleaded no contest to one count of fraudulent schemes and artifices and five counts of theft. He was placed on seven years of probation and was ordered to pay $293,504.00. The defendant was originally ordered to pay $500.00 per month from his annual earnings. The court monitored his earnings annually beginning in 1989 and increased the amount appropriately. By 1991, the defendant was paying $1,370.00 per month.

Also in 1991, the court increased the defendant’s payment requirement to $3,000.00. This increase was opposed by the defendant’s testimony that he had lost his job, had no liquid assets, and was obligated to a tax lien. On appeal, the defendant argued that the decision to increase the payment was arbitrary. The Arizona Court of Appeals sided with the defendant and determined that the trial court abused its discretion.

The Court of Appeals made its decision based on the fact that the trial court could not ignore the evidence presented by the defendant. Evidence that the defendant had lost his job, was an obligor on a lien and had no liquid assets was extremely relative to increasing the manner in which the defendant paid the restitution. The Court of Appeals held that ignoring such evidence was an abuse of discretion. It therefore vacated the order increasing the defendant’s restitution payments.

Key Language: In deciding the manner in which restitution is to be paid, the court shall consider the economic circumstances of the defendant. The trial court entered an order increasing the amount defendant had to pay […] despite uncontroverted testimony that the defendant had just lost his job. The record indicates that all of defendant’s income is from employment earning. Clearly, the trial court did not properly consider defendant’s economic circumstances when increasing his restitution payment.

Expert Advise:: “Courts must be fair in assessing the manner in which restitution is paid. A defendant who feels he is unable to continue in the manner in which he is ordered to pay can petition the court for a change according to his circumstances. This case stands for the fact that courts cannot ignore such evidence and must take a defendant’s economic circumstances into consideration when calculating restitution payments.” -Attorney Mathew Higbee.

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