State v. Pinto

880 P.2d 1139, 179 Ariz. 593, 165 Ariz. Adv. Rep. 41, 1994 Ariz. App. LEXIS 112
Court of Appeals of Arizona·Decided May 24, 1994·No. 1 CA-CR 93-0485 to 1 CA-CR 93-0487 and 1 CA-CR 93-0628·Published·Cited by 39 cases

Opinion

OPINION

CONTRERAS, Judge.

Appellants Elizabeth Pinto, Nelson Yazzie, Titus Sehongva and Charles Capone (“defendants)”) appeal from the trial court’s orders entering separate civil judgments against them for the amounts of restitution remaining unpaid after the expiration of their respective terms of probation.

The primary issue raised by these consolidated appeals is whether Ariz.Rev.Stat.Ann. (“AR.S.”) section 13-805 allows the entry of *595 such a judgment after the expiration of the period of probation, but before the full restitution amount has actually been paid. Defendant Sehongva also asks this court to determine whether he is entitled to a hearing as a matter of right at the time his class 6 undesignated offense is considered for designation as a felony. We conclude that the trial court retained jurisdiction to enter civil judgment, and we affirm the orders entering civil judgments against each of the defendants. We vacate the order designating Se-hongva’s offense as a felony and remand for a hearing on that matter.

FACTS

Each of the four defendants was found guilty of various criminal offenses, placed on a term of probation, and ordered to pay a certain amount of restitution. In each of these separate cases, the term of probation imposed by the court expired, and after the expiration date, the adult probation officer, pursuant to AR.S. section 13-805, filed a “Petition for Entry of Civil Judgment” against each defendant requesting that judgment be entered for the unpaid balance of restitution and costs. All defendants moved to dismiss their respective petitions, arguing that (1) no rule or statute authorized the filing of such a petition after the expiration of the probationary period; (2) the deputy adult probation officer could not file such a petition because he was not an attorney; and (3) the trial court did not have jurisdiction because the petition was filed after the period of probation had ended. The trial court overruled the defendants’ objections and granted the petitions and entered judgments. The defendants timely appealed. This Court consolidated these matters because they address a common issue of law. We have jurisdiction pursuant to AR.S. sections 12-120.21(A)(1) (1992), 13-4031 (1989), and 13-4033(A) (Supp. 1992).

TRIAL COURT JURISDICTION

The issue regarding repayment of restitution presents a pure question of law requiring us to apply basic tenets of statutory construction. We therefore review the trial court’s conclusions de novo. Nichols v. State Farm Fire and Casualty, 175 Ariz. 354, 355, 857 P.2d 406, 407 (App.1993); Sunpower of Arizona, Inc. v. Arizona Department of Economic Security, 175 Ariz. 109, 111, 854 P.2d 142, 144 (App.1993). The statute at issue is AR.S. section 13-805. It states:

A The trial court shall retain jurisdiction of the case for purposes of modifying the manner in which court-ordered payments are made until paid in full, or until the defendant’s sentence expires. At the time the defendant completes his period of probation or his sentence, the court shall enter both:
1. Judgment in favor of the state for the unpaid balance, if any, of any fines, costs, incarceration costs, fees, surcharges or assessments imposed.
2. Judgment in favor of each person entitled to restitution for the unpaid balance of any restitution ordered.
B. The judgments may be enforced and renewed as any civil judgment.

AR.S. section 13-805 (Supp.1993). The circumstances under which the trial court retains jurisdiction for purposes “... of modifying the manner in which court>ordered payments are made ...” are stated on the face of the statute in the disjunctive, i.e. “until paid in full or until the defendant’s sentence expires.” The word “or,” as it is often used, is “[a] disjunctive particle used to express an alternative or to give a choice of one among two or more things.” Rutledge v. Arizona Board of Regents, 147 Ariz. 534, 556-57, 711 P.2d 1207, 1229-30 (App.1985) (emphasis in original). We will usually interpret “or” to mean what it says, and we will give it that meaning unless impossible or absurd consequences will result. Miller v. City of Tucson, 153 Ariz. 380, 381, 736 P.2d 1192, 1193 (App.1987).

If we were to follow the construction urged by the defendants and construe the word “or” strictly in the disjunctive, the trial court would be divested of its jurisdiction when the first of two events occurs: payment in full of restitution or the expiration of the defendant’s sentence. It is argued on behalf of defendants that unless the State satisfied the second portion of AR.S. section 13-805(A) by *596 immediately filing a petition at the expiration of the period of probation, the trial court would lose its jurisdiction and thereby force the State and the victims to pursue other, more time-consuming remedies to collect the sums due them. We reject this scenario.

When statutory language gives rise to different interpretations, as it does here, we will adopt the interpretation that is most harmonious with the statutory scheme and legislative purpose. In doing so, we examine the policy behind the statute and the evil it seeks to remedy. State v. Helffrich, 174 Ariz. 1, 5, 846 P.2d 151, 155 (App.1992). We also look at the effects and consequences of a particular interpretation and compare them to other acts that are in pari materia; we will then construe the provisions to harmonize rather than contradict one another “if sound reasons and good conscience allow.” Ban v. Quigley, 168 Ariz. 196, 198, 812 P.2d 1014, 1016 (App.1990), review dismissed, 169 Ariz. 477, 820 P.2d 643 (1991).

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State v. Pinto, 880 P.2d 1139, 179 Ariz. 593, 165 Ariz. Adv. Rep. 41, 1994 Ariz. App. LEXIS 112 (Ark. Ct. App. 1994).

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