                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE



                                IN RE ABEL H.

                             No. 1 CA-JV 15-0067
                               FILED 10-01-2015


          Appeal from the Superior Court in Maricopa County
                            No. JV198465
         The Honorable Utiki Spurling Laing, Judge Pro Tempore

                      VACATED AND REMANDED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Appellant

Maricopa County Public Advocate, Mesa
By Lori A. Leon
Counsel for Appellee



                       MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge John C. Gemmill joined.
                              IN RE ABEL H.
                            Decision of the Court

C A T T A N I, Judge:

¶1            The State of Arizona appeals from the juvenile court’s denial
of its untimely request for a restitution hearing. For reasons that follow, we
vacate the juvenile court’s ruling and remand for further proceedings
consistent with this decision.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In early August 2014, 13-year-old Abel H. put another boy in
a headlock as part of a game. The boy lost consciousness and suffered a
laceration to his head after falling. The State thereafter charged Abel with
felony aggravated assault and initiated delinquency proceedings.

¶3           In October 2014, the victim filed a Verified Victim Statement
of Financial Loss (“VVS”) indicating over $2,400 in medical expenses
resulting from Abel’s actions. On November 7, 2014, Abel pled guilty to
misdemeanor aggravated assault, and the juvenile court—proceeding
immediately to disposition—placed him on standard probation.

¶4             The court did not address restitution at the disposition
hearing, but rather deferred consideration until a later date. The juvenile
probation officer noted at the time that the victim had already filed a VVS
for medical expenses, and Abel’s counsel acknowledged receiving the VVS
and discussing it with Abel and his mother. The State indicated, however,
that it intended to follow up with the victim about any additional
restitution he might seek. The court set a deadline of December 5, 2014 for
the victim to submit a VVS and a deadline of December 19, 2014 for the State
to request a restitution hearing.

¶5             No supplemental VVS was filed, and the State missed the
December 19 deadline for requesting a restitution hearing. On January 12,
2015, the State filed a hearing request, noting that the victim had filed a VVS
with the court in October, but offering no explanation for the untimely
filing. In response, Abel acknowledged that a VVS was filed before the
deadline, but objected to the State’s request solely because it was untimely.
The court denied the State’s request for a restitution hearing “[f]or the
reasons set forth in the Defense’s objection.”




                                      2
                              IN RE ABEL H.
                            Decision of the Court

¶6          The State timely appealed,1 and we have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) § 8-235(A).2

                               DISCUSSION

¶7            The State asserts that the juvenile court improperly denied its
request for a restitution hearing. We review a denial of restitution for an
abuse of discretion. In re Michelle G., 217 Ariz. 340, 343, ¶ 9, 173 P.3d 1041,
1044 (App. 2008).

¶8             A victim has a right “[t]o receive prompt restitution from the
person or persons convicted of the criminal conduct that caused the victim’s
loss or injury.” Ariz. Const. art. II, § 2.1(A)(8). And, when a “juvenile is
adjudicated delinquent, the court . . . shall order the juvenile to make full or
partial restitution to the victim of the offense for which the juvenile was
adjudicated delinquent.” A.R.S. § 8-344(A).

¶9             Rather than concurrently addressing restitution at the time of
disposition, a court may leave the issue of restitution open and impose a
post-disposition deadline for filing a restitution claim. See In re Alton D.,
196 Ariz. 195, 198–99, ¶¶ 12, 16, 994 P.2d 402, 405–06 (2000). With the caveat
that any deadline imposed must be reasonable under the circumstances of
the specific case, a victim who fails to comply with such a deadline waives
the right to restitution and is barred from recovery. Id. at 199–200, ¶¶ 18–
19, 994 P.2d at 406–07. This approach balances the juvenile’s constitutional
right to a speedy disposition with the victim’s right to receive
compensation. Id. at ¶ 19.

¶10         Here, the victim did not fail to comply with a post-disposition
deadline. The victim had in fact submitted a VVS months before, and the
VVS had been filed with the court and provided to the juvenile. Although


1      Abel asserts that the State’s appeal was untimely, arguing that the
disposition order became final and appealable when the State missed the
December 19, 2014 deadline, and that the juvenile court lacked authority to
reopen the proceedings to consider the State’s untimely request. But a
juvenile court may retain jurisdiction to consider and enter a restitution
order. In re Richard B., 216 Ariz. 127, 130, ¶ 13, 163 P.3d 1077, 1080 (App.
2007). And the State’s notice of appeal was timely filed after the court’s
order denying restitution.

2     Absent material revisions after the relevant date, we cite a statute’s
current version.


                                       3
                              IN RE ABEL H.
                            Decision of the Court

the State missed a deadline for requesting a hearing, the victim did not fail
to comply with the deadline and accordingly did not independently waive
his right to restitution under Alton D. See id.

¶11            Under different circumstances, this court concluded that a
final disposition could not be reopened to impose restitution, even though
the victim had timely provided a restitution affidavit to the prosecutor. See
Michelle G., 217 Ariz. at 343–44, ¶¶ 13–16, 173 P.3d at 1044–45. In that case,
however, the State had not presented a claim for restitution at or before the
disposition hearing, and the court did not hold the issue open by setting a
post-disposition deadline for restitution claims; the disposition was thus
closed, final, and appealable long before any claim was filed more than a
year later. Id. at 342, 344, ¶¶ 5, 14, 173 P.3d at 1043, 1045. Moreover,
although the victim in that case had submitted documents to the
prosecutor, no VVS had been filed with the court. Id. at 342–43, ¶ 8, 173
P.3d at 1043–44. Here, in contrast, a VVS was timely filed with the court,
and all parties understood that restitution had been requested and
remained open after the disposition hearing.

¶12            This court has recognized that a juvenile court may, where
appropriate, reconsider and extend a post-disposition restitution deadline.
In In re Richard B., the juvenile court assessed whether any potential undue
delay resulting from an extension of the missed deadline would prejudice
the juvenile, and after considering the specific facts of the case, concluded
that the victim had acted reasonably and promptly in light of the
information she was given, particularly given the absence of any warning
that a failure to comply with the deadline would render the issue closed.
216 Ariz. at 129–31, ¶¶ 8–9, 16–19, 163 P.3d at 1079–81. This court affirmed,
finding that the juvenile court properly retained authority to extend the
restitution deadline for “cause.” Richard B., 216 Ariz. at 130–31, ¶¶ 13, 16,
163 P.3d at 1080–81 (emphasis in original) (quoting In re Kevin A., 201 Ariz.
161, 162, ¶ 10, 32 P.3d 1088, 1089 (App. 2001)).

¶13            In the instant case, there was no warning that a failure to meet
a specific deadline would result in restitution being denied. Nevertheless,
the court accepted Abel’s contention that the State’s request for a restitution
hearing necessarily failed because it was untimely, notwithstanding the
specific circumstances presented. The record does not reveal whether the
court considered if the victim bore any fault for the delay, if strictly
enforcing the deadline would be fair despite the lack of an express warning
that restitution would automatically close on the deadline, if extending the
deadline so as to secure the victim’s rights would prejudice Abel in any
way, or if good cause existed to extend the deadline. Accordingly, we


                                      4
                              IN RE ABEL H.
                            Decision of the Court

vacate the denial of restitution and remand for the juvenile court to consider
the restitution request, balancing the victim’s right to restitution and Abel’s
right to a speedy disposition under the specific circumstances of the case.
See Alton D., 196 Ariz. at 199, ¶ 19, 994 P.2d at 406.

                              CONCLUSION

¶14         Based on the foregoing, we vacate the juvenile court’s ruling
and remand for further proceedings consistent with this decision.




                                 :ama




                                        5
