" Bondurant acknowledged Nelson had paid $300 on June 4, the day after the petition to modify was filed, and had handed her $150 on the day of the hearing, bringing her current on her fines and fees. Bondurant also testified that Nelson had tested positive for alcohol use.ยถ6 In support of her claim that the trial court erred in modifying the terms of her probation to include ten days in jail, Nelson cites State v. Davis, 159 Ariz. 562, 769 P.2d 1008 (1989), and State v. Wilson, 150 Ariz. 602, 724 P.2d 1271 (App. 1986), both of which address a court's revoking probation based on a failure to pay court-ordered obligations. She maintains that, "[b]y analogy," to modify the terms of probation, a court must make the same inquiry into the reasons for non-payment that is required to revoke probation.
The only issue raised by appellant deals with the "manner" of repayment of the loss. In State v. Wilson, 150 Ariz. 602, 608, 724 P.2d 1271 (App. 1986), the court observed that when a person is sentenced to prison it is generally unrealistic to require a trial court to predict what the economic circumstances of the convicted person will be at the time he is released from incarceration. The court noted the economic circumstances of a defendant may change significantly when the time for payment arrives.
The trial court also found, however, that appellant had failed to report to his probation officer on five occasions, and this finding is substantiated, indeed admitted, by appellant. In State v. Wilson, 150 Ariz. 602, 724 P.2d 1271 (App. 1986), Division One of this court affirmed a revocation order which was based on the trial court's findings of failure to report and failure to pay assessments. Notwithstanding the invalidity under Bearden of the findings with respect to payments, the court affirmed the revocation on the substantiated finding of failure to report.
Indeed, even if we were to accept Gibson's contentions that he did not violate Conditions 7 and 11, his admitted violation of Condition 16 would by itself justify the dispositions. See State v. Wilson, 150 Ariz. 602, 604-05 (App. 1986). --------
The general criminal restitution statute, ยง 13-603(C), however, has been part of our criminal code in various forms since 1977. See State v. Wilson , 150 Ariz. 602, 605, 724 P.2d 1271, 1274 (App. 1986) ; see also State v. Moore , 156 Ariz. 566, 568, 754 P.2d 293, 295 (1988) (noting that "[r]estitution, both as reparation to the victim and as part of the rehabilitation of the offender, has been a part of the criminal justice system for a long time."); State v. Howard , 163 Ariz. 47, 51, 785 P.2d 1235, 1239 (App. 1989) (explaining "restitution is to make the victim whole").
No matter the burden or the evidence presented, there must be a judicial inquiry. See State ex rel. Fleming v. Missouri Bd. of Prob. & Parole, 515 S.W.3d 224 (Mo. 2017); Snipes v. State, 521 So. 2d 89, 90 (Ala. Crim. App. 1986); State v. Wilson, 150 Ariz. 602, 604, 724 P.2d 1271, 1273 (1986); Hanna v. State, 2009 Ark. App. 809, 372 S.W.3d 375, 379(2009)(burden shifts to defendant, but only after State presents evidence of non-payment plus other evidence to show willful non-payment); People v. Roletto, 2015 COA 41, ยถ 19, 370 P.3d 190, 194 (The statute in Colorado, unlike Oklahoma's statute, establishes a burden and makes proof of non-payment prima facie evidence.); State v. Martinik, 1 Conn. App. 70, 71-2, 467 A.2d 1247, 1248 (1983); Del Valle v. State, 80 So.3d 999, 1005 (Fla. 2011); Brown v. United States, 900 A.2d 184, 190-94(D.C. 2006); State v. Street, 28 Kan. App.2d 291, 293-94, 16 P.3d 333, 335-36 (2000); State v. Myles, 2004-264 (La.App. 3 Cir. 9/29/04), 882 So. 2d 1254, 1257; Berdin v. State, 648 So. 2d 73, 78 (Miss. 1994), overruled on other grounds by Smith v. State, 742 So. 2d 1146 (Miss. 1999); State v. Fowlie, 138 N.H. 234, 237, 636 A.2d 1037, 1039 (1994)(finding that the trial court must inquire into the reasons for failure to pay); Medlock v. State, 688 S.W
No matter the burden or the evidence presented, there must be a judicial inquiry. See State ex rel. Fleming v. Missouri Bd. of Prob. & Parole , 515 S.W.3d 224 (Mo. 2017) ; Snipes v. State , 521 So.2d 89, 90 (Ala. Crim. App. 1986) ; State v. Wilson , 150 Ariz. 602, 604, 724 P.2d 1271, 1273 (1986) ; Hanna v. State , 2009 Ark. App. 809, 372 S.W.3d 375, 379 (2009) (burden shifts to defendant, but only after State presents evidence of non-payment plus other evidence to show willful non-payment); People v. Roletto , 2015 COA 41, ยถ 19, 370 P.3d 190, 194 (The statute in Colorado, unlike Oklahoma's statute, establishes a burden and makes proof of non-payment prima facie evidence.); State v. Martinik , 1 Conn. App. 70, 71-2, 467 A.2d 1247, 1248 (1983) ; Del Valle v. State , 80 So.3d 999, 1005 (Fla. 2011) ; Brown v. United States , 900 A.2d 184, 190-94 (D.C. 2006) ; State v. Street , 28 Kan. App.2d 291, 293-94, 16 P.3d 333, 335-36 (2000) ; State v. Myles , 2004-264 (La.App. 3 Cir. 9/29/04), 882 So.2d 1254, 1257 ; Berdin v. State , 648 So.2d 73, 78 (Miss. 1994), overruled on other grounds by Smith v. State , 742 So.2d 1146 (Miss. 1999) ; State v. Fowlie , 138 N.H. 234, 237, 636 A.2d 1037, 1039 (1994) (finding that the trial court must inquire into the reasons for failure to pay); Medlock
It would be anomalous to hold that provisions enacted as part of the same statute, covering the same subject, and employing the same language would have fundamentally different elements merely because of differences in word order. See State v. Thomason, 162 Ariz. 363, 366, 783 P.2d 809, 812 (App. 1989) ("A statute should be explained in conjunction with other statutes which relate to the same subject or have the same general purpose."); State v. Oehlerking, 147 Ariz. 266, 268, 709 P.2d 900, 902 (App. 1985), disavowed in part by State v. Wilson, 150 Ariz. 602, 724 P.2d 1271 (App. 1986) ("Where the same words or phrases appear in the same statute, they should be given a consistent meaning unless there is a clearly expressed legislative intention to the contrary."). Here, to find that our holding in Mena is inapplicable to second-degree escape would lead to the absurd result that it would be illegal for a person arrested for a misdemeanor to escape prior to learning the nature of his arrest, but it would be perfectly legal for one arrested for a felony to do so.
The defendant next argues that the trial court improperly delegated judicial power to the Department of Corrections by allowing it to adjudge violations of its rules. It is true that a court may not delegate its power to an executive agency like the Department of Corrections. See State v. Wilson, 150 Ariz. 602, 608, 724 P.2d 1271, 1277 (App. 1986). Here, however, the court reviewed the Department of Corrections' decision but was not bound by it. If the court had found that the dismissal from shock incarceration was arbitrary and capricious, while it could not have ordered the Department to retain the defendant in the program, it could have, and should have, refused to revoke the defendant's probation.
Bearden v. Georgia, 461 U.S. 660, 672, 103 S.Ct. 2064, 2073, 76 L.Ed.2d 221 (1983). See State v. Wilson, 150 Ariz. 602, 724 P.2d 1271 (App. 1986); A.R.S. ยง 13-810(C). Moreover, the nature of this action makes appeal an impractical method of review.