                                                                       FILED BY CLERK
                         IN THE COURT OF APPEALS
                                                                        APR 12 2012
                             STATE OF ARIZONA
                               DIVISION TWO                              COURT OF APPEALS
                                                                           DIVISION TWO



THE STATE OF ARIZONA,                     )
                                          )           2 CA-CR 2011-0244
                               Appellant, )           DEPARTMENT A
                                          )
             v.                           )           OPINION
                                          )
JERRY ALAN NUCKOLS,                       )
                                          )
                               Appellee. )
                                          )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR20102491001

                          Honorable Richard S. Fields, Judge

                                     AFFIRMED


Barbara LaWall, Pima County Attorney
 By Nicolette Kneup                                                             Tucson
                                                                Attorneys for Appellant

The Law Offices of Stephanie K. Bond, PC
 By Stephanie K. Bond                                                           Tucson
                                                                  Attorney for Appellee


E C K E R S T R O M, Presiding Judge.


¶1           The state appeals the trial court’s denial of its untimely request that

Nuckols pay restitution to Pima County. Finding no error, we affirm.
                                       Background

¶2            Pursuant to a plea agreement that required him to pay up to $10,000

restitution to Pima County, appellee Jerry Nuckols was convicted of multiple felony

counts arising from his having fled from and then shot at a Pima County deputy sheriff.

Nuckols waived his right to an evidentiary hearing to determine the specific amount of

restitution. His plea agreement provided that a “restitution claim form” would serve as

“conclusive proof of the victims’ economic loss.”

¶3            On May 2, 2011, the trial court sentenced Nuckols to a combination of

concurrent and consecutive terms of imprisonment and ordered that “the issue of

restitution shall remain open for 30 days.”1 The state filed its restitution claim form and

supporting documents over two months later, on July 11, requesting $540.56 in

restitution to Pima County for its costs in repairing a vehicle that Nuckols had shot. The

court initially granted the state’s request but later sustained Nuckols’s objection to it and

denied restitution after a hearing in August 2011. We have jurisdiction over the state’s

appeal from this ruling pursuant to A.R.S. § 13-4032(4).

                                        Discussion

¶4            The state maintains Pima County “was entitled to restitution after the trial

court’s restitution deadline.”   In support of this position, the state cites article II,

§ 2.1(A)(8) of the Arizona Constitution and A.R.S. § 13-603(C), which require restitution


       1
        The state has not provided this court with a transcript of the sentencing hearing
where the trial court deferred ruling on restitution. “Where matters are not included in
the record on appeal, the missing portions of the record will be presumed to support the
action of the trial court.” State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982).
                                             2
awards for eligible crime victims, generally.      The state maintains the court had an

“affirmative duty to require . . . restitution” by law and by the terms of the plea

agreement. The state has offered no excuse for its untimely request for restitution,

however, nor has it provided authority to support its implicit premise that it may

disregard court-imposed deadlines for requesting restitution.2 Moreover, the state has not

argued expressly, much less established, that the trial court was without authority to set

the deadline it did, or that the thirty-day deadline imposed somehow was unreasonable

under the circumstances of this case.

¶5            Despite the constitutional nature of a crime victim’s right to receive

restitution, a trial court is obligated to determine, by sufficient evidence, the amount of

restitution owed by a defendant, unless he or she agrees to pay a specific amount. See

A.R.S. §§ 13-603(C), 13-804(E), (G); State v. West, 173 Ariz. 602, 609, 845 P.2d 1097,

1104 (App. 1992); State v. Scroggins, 168 Ariz. 8, 9, 810 P.2d 631, 632 (App. 1991). In

an adult criminal prosecution, as in a juvenile delinquency proceeding, a trial court thus

may “requir[e] the timely assertion of [the] right to avoid waiver.” In re Alton D., 196

Ariz. 195, ¶ 17, 994 P.2d 402, 406 (2000); see State v. Barrs, 172 Ariz. 42, 43, 833 P.2d

713, 714 (App. 1992) (noting “right to restitution belongs to the victim” and may be

       2
        Although the state had argued below that the negligent actions of the Pima
County attorney should not be attributed to Pima County, it has abandoned this argument
on appeal. We therefore need not address the issue. See State v. Carver, 160 Ariz. 167,
175, 771 P.2d 1382, 1390 (1989). For clarification, however, we note the county attorney
played a dual role in this case, representing both the state in the general criminal
prosecution as well as the county in regard to the criminal restitution that it was owed.
See A.R.S. § 11-532(A)(1), (4) (county attorney must “conduct, on behalf of the state, all
prosecutions for public offenses” and “prosecute . . . actions for recovery of debts, fines,
penalties and forfeitures accruing to the state or county”).
                                             3
“waive[d] by the victim”); see also Ariz. R. Crim. P. 39(b)(16) (requiring victims be

informed of “procedures for invoking the right” to restitution). “[A] trial court may

impose a reasonable deadline within which restitution claims must be filed.” Alton D.,

196 Ariz. 195, ¶ 6, 994 P.2d at 403; see State v. Zaputil, 220 Ariz. 425, n.2, 207 P.3d 678,

682 n.2 (App. 2008) (observing “both the trial court and the State have a concurrent

obligation to see that restitution claims are not only preserved but adjudicated in a timely

fashion”). Victims who fail to “present their restitution claims and supporting evidence”

by such a deadline waive their rights to receive restitution. Alton D., 196 Ariz. 195, ¶ 19,

994 P.2d at 407.

¶6            Here, the untimeliness of the request waived the restitution to which Pima

County otherwise was constitutionally and statutorily entitled. We therefore find no

abuse of discretion in the trial court’s denial of restitution. See State v. Lewis, 222 Ariz.

321, ¶ 5, 214 P.3d 409, 411 (App. 2009).

¶7            In a different line of argument, the state contends the trial court retained

jurisdiction to order restitution past the thirty-day deadline. A lack of jurisdiction was

one of two grounds on which Nuckols objected below; the other ground was the

“untimel[iness]” of the state’s request. The trial court did not make any express findings

in support of its ruling, nor did the state ask it to do so. We may affirm a court’s ruling

on any basis supported by the record. State v. Wassenaar, 215 Ariz. 565, ¶ 50, 161 P.3d

608, 620 (App. 2007). Accordingly, we need not decide any issue relating to the court’s

jurisdiction to order restitution past the thirty-day deadline, because the untimeliness of

the state’s request provides a sufficient basis to uphold the court’s ruling.

                                              4
¶8            To the extent the state maintains its request “for a specific restitution

amount was . . . timely because the court retained jurisdiction over restitution,” the state

conflates the issues of timeliness and jurisdiction. Although these issues sometimes

overlap, they are distinct nonetheless. And, contrary to the state’s suggestion, a request

for restitution is not timely simply because the superior court retains jurisdiction to order

it.

¶9            The state also claims Pima County was entitled to receive restitution here

because the circumstances are analogous to those in State v. Zaputil. That case, however,

is readily distinguishable. In Zaputil, the trial court continued a restitution hearing

numerous times and, upon vacating the hearing, expressly “stated that it retained

jurisdiction over the matter of restitution.” 220 Ariz. 425, ¶¶ 3-4, 207 P.3d at 679-80.

Here, in contrast, the court did not order any continuance, and the matter of restitution

was closed after the court’s thirty-day deadline for submitting supporting documentation

expired.

                                        Disposition

¶10           Accordingly, the trial court’s order denying restitution is affirmed.

                                              /s/ Peter J. Eckerstrom
                                              PETER J. ECKERSTROM, Presiding Judge
CONCURRING:

/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge

/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge

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