                     SUPREME COURT OF ARIZONA
                              En Banc

TOWN OF GILBERT PROSECUTOR’S        )   Arizona Supreme Court
OFFICE,                             )   No. CV-07-0300-PR
                                    )
                      Petitioner,   )   Court of Appeals
                                    )   Division One
                v.                  )   No. 1 CA-SA 07-0078
                                    )
THE HONORABLE MARGARET H. DOWNIE,   )   Maricopa County
JUDGE OF THE SUPERIOR COURT OF      )   Superior Court
THE STATE OF ARIZONA, in and for    )   No. LC2006-000817-001DT
the County of Maricopa,             )
                                    )   Gilbert Municipal Court
               Respondent Judge,    )   No. 05TR192310C
                                    )
MITCHELL MICHAEL MATYKIEWICZ,       )
                                    )   O P I N I O N
          Real Party in Interest.   )
_________________________________   )

         Appeal from the Town of Gilbert Municipal Court
               The Honorable John E. Hudson, Judge

                            REMANDED
________________________________________________________________

    Special Action from the Superior Court in Maricopa County
             The Honorable Margaret H. Downie, Judge

                            AFFIRMED
________________________________________________________________

          Opinion of the Court of Appeals, Division One
                216 Ariz. 30, 162 P.3d 669 (2007)

                            REVERSED
________________________________________________________________

LYNN R. AROUH, GILBERT TOWN PROSECUTOR                        Gilbert
     By   Denise E. Boode, Assistant Town Prosecutor
Attorneys for Town of Gilbert Prosecutor’s Office
LAW OFFICES OF MICHAEL J. DEW                                      Phoenix
     By   Michael J. Dew
Attorneys for Mitchell Michael Matykiewicz

CARON L.B. CLOSE, SCOTTSDALE CITY PROSECUTOR          Scottsdale
     By   Anna C. Johnston, Assistant City Prosecutor
Attorneys for Amicus Curiae City of Scottsdale

AARON J. CARREON-AINSA, PHOENIX CITY PROSECUTOR          Phoenix
     By   Rebecca M. Gore, Assistant City Prosecutor
Attorneys for Amicus Curiae City of Phoenix
________________________________________________________________

B E R C H, Vice Chief Justice

¶1         We have been asked to decide whether the amount of

restitution to be paid by a defendant convicted of contracting

without a license may be reduced by any value conferred on the

homeowner.      We hold that such a reduction is appropriate.

                    I.    FACTS AND PROCEDURAL HISTORY

¶2         In    January    2005,    Richard   and   Felicita   Rada   hired

Mitchell Matykiewicz to perform remodeling work on their home in

Gilbert, Arizona.        Over the course of nine months the Radas paid

$52,784.22 to Matykiewicz.           Matykiewicz claims to have hired

licensed     subcontractors     to    do     the   work,   which   included

installing a pool, barbeque, and fire pit; moving the hot tub

from one location to another; removing bushes, tree stumps, and

gravel from the back yard; raising and painting the walls all

around the house; performing interior remodeling work, such as

moving sinks and installing doors; and obtaining the required

permits from the Town of Gilbert.
                                     - 2 -
¶3                          Mr. Rada discovered that Matykiewicz was not properly

licensed                       and             filed             a     complaint          with   the     Registrar     of

Contractors.                                 The              Town    of    Gilbert        charged    Matykiewicz    with

contracting without a license in violation of Arizona Revised

Statutes (“A.R.S.”) section 32-1151 (2008).1                                                     The municipal court

convicted Matykiewicz and, based on its reading of                                                               State v.

Wilkinson, 202 Ariz. 27, 39 P.3d 1131 (2002), ordered him to pay

restitution of $52,784.22, the entire amount the Radas had paid.

The court also placed Matykiewicz on probation and imposed a

fine of $1855.

¶4                          On appeal, the superior court vacated the restitution

order.                   Concluding that Wilkinson decided only whether damages

for incomplete or faulty work were recoverable as restitution,

the superior court remanded the case for a determination of the

Radas’ economic loss.

¶5                          The court of appeals accepted jurisdiction of the Town

of          Gilbert’s                       petition                 for        special    action,     granted    relief,

reversed,                        and,               over         a     dissent,           reimposed    the   $52,784.22

restitution                          order.                     Town       of    Gilbert     Prosecutor’s    Office    v.

Downie, 216 Ariz. 30, 35, ¶ 19, 162 P.3d 669, 674 (App. 2007).

The majority held that Wilkinson requires disgorgement of “all
                                                           
1
     Unless otherwise indicated, we cite the current version of
the applicable statutes, as they have not been changed since the
criminal conduct occurred.

                                                                            - 3 -
payments made by victims to an unlicensed contractor under a

contract.”     Id. at 34, ¶ 14, 162 P.3d at 673.                     This amount, it

concluded, “constitute[s] economic loss subject to restitution.”

Id.    The majority noted that, while the result seems harsh, such

a    restitution     order   would    help    deter       unlicensed     contractors.

Id.    at   34-35,    ¶¶   16-17,    162     P.3d    at    673-74.       The   dissent

countered     that    Wilkinson      did   not      create    a    per   se    rule    of

disgorgement of all proceeds.              Instead, Wilkinson held that the

trial court could not order as restitution additional sums for

consequential damages caused by faulty or incomplete work.                            Id.

at 35, ¶ 20, 162 P.3d at 674 (Hall, J., dissenting).                                  The

dissent concluded that the restitution inquiry should be guided

by general restitution principles.               Id. ¶¶ 20-21.

¶6           We granted Matykiewicz’s petition for review to decide

this issue of statewide importance and to clarify our holding in

Wilkinson.     We have jurisdiction pursuant to Article 6, Section

5(3) of the Arizona Constitution.

                               II.     DISCUSSION

¶7           The Victims’ Bill of Rights gives victims the right to

prompt restitution for any loss they incur as a result of a

crime.      Ariz. Const. art. 2, § 2.1(A)(8).                     Arizona’s criminal

code implements this constitutional guarantee by requiring “the

convicted person to make restitution to . . . the victim of the

                                       - 4 -
crime . . . in the full amount of the [victim’s] economic loss.”

A.R.S. § 13-603(C) (2001).

¶8           In     ascertaining              the   victim’s        “economic        loss,”   the

sentencing        court      must    “consider          all     losses       caused     by    the

criminal offense or offenses for which the defendant has been

convicted.”            Id.    §     13-804(B);          see    also        id.   §    13-105(14)

(defining economic loss).                     The court must then exclude “damages

for   pain    and      suffering,         punitive       damages       [and]     consequential

damages.”      Id. § 13-105(14).                The “economic loss” recoverable as

restitution thus includes all “losses” the victim incurred as a

result of the criminal offense that are not excluded by § 13-

105(14).

¶9           In     Wilkinson,           we    identified       a     three-part       test   for

determining which losses qualify for restitution under § 13-

603(C).      “First, the loss must be economic.                             Second, the loss

must be one that the victim would not have incurred but for the

defendant’s criminal offense.”                      Wilkinson, 202 Ariz. at 29, ¶ 7,

39 P.3d at 1133.              Third, “the criminal conduct must directly

cause the economic loss.”                     Id.   In Wilkinson, we focused on the

third   part      of    the       test    –     whether       the    defendant’s        criminal

actions      directly        caused           the   damages         that    arose     from    the

unlicensed contractor’s “shoddy and incomplete work.”                                    Id. at

28-30, ¶¶ 4, 7-13, 39 P.3d at 1132-34.                         In this case, we analyze

                                                - 5 -
the first part of the test – how to ascertain “economic loss.”

We must decide whether, in determining how much “economic loss”

a        victim                 has            suffered,             the   court    may   consider       any    value

conferred                      on         the          homeowner.          Resolution     of   this     issue    is   a

question of law, which we review de novo.                                                    See State v. Getz,

189 Ariz. 561, 563, 944 P.2d 503, 505 (1997).

A.            The meaning of “loss”

¶10                         Because statutory language is the best evidence of the

legislature’s intent, Mejak v. Granville, 212 Ariz. 555, 557,

¶ 8,             136           P.3d             874,          876    (2006),   we    begin     by    examining     the

criminal code to find the meaning of the term “loss.”                                                        Arizona’s

criminal code defines “economic loss” as “any” or “all” losses,

A.R.S. §§ 13-105(14), -804(B), but does not define the word

“loss” in the context of restitution.2                                                The code similarly does

not             specify                      whether            a     determination       of        “loss”     permits

consideration of any benefits conferred on the victim.

¶11                            “Loss” is commonly defined as the difference between

what             was            had           before           and    after    a    specified       event.       E.g.,
                                                           
2
     The only definition of “loss” in Arizona’s criminal code
appears in a provision establishing crime victim accounts if
defendants sell media rights.     See A.R.S. § 13-4202 (2001).
This definition, which “includes the value of any property
damaged, destroyed or taken, the cost of medical treatment or
counseling, lost wages and any other damage suffered as a result
of the crime,” applies only to media rights cases.     Id. § 13-
4202(M).


                                                                       - 6 -
Webster’s College Dictionary 778 (2d ed. 1997) (defining “loss”

to    mean     “the    act   of    losing       possession      of    something”       or    “an

amount       or    number    lost”);          see     also   A.R.S.     §     1-213     (2002)

(requiring that words be given their ordinary meaning).                                      The

restitution provisions of the criminal code confirm that the

legislature contemplated a similar definition of “loss” as being

“out” something as a result of a crime.                        Section 13-804(E), for

example, provides that if a victim receives compensation from a

collateral         source    to    cover      economic       loss    caused      by   criminal

conduct, the court must reduce the victim’s recovery by that

amount.           Requiring reduction of a victim’s recovery for sums

already received demonstrates the legislature’s intent that the

victim’s       “loss”     reflect        benefits      conferred.           See   Moreno      v.

Jones, 213 Ariz. 94, 99, ¶ 28, 139 P.3d 612, 617 (2006) (looking

to     other       provisions      in     a     statutory      scheme       to    assist      in

determining meaning).

¶12            Consistent         with    this      understanding,          Arizona     courts

credit       victims     with      the        value    of    returned       property        when

considering restitution.                  E.g., State v. Ferguson, 165 Ariz.

275, 277-78, 798 P.2d 413, 415-16 (App. 1990) (concluding that

the trial court erred by failing to take into account evidence

that    stolen        property     had    been      returned).        The     concept       that

restitution compensates victims only for loss actually suffered

                                               - 7 -
is well established.              See, e.g., ABA Standards for Criminal

Justice § 18-3.15(c)(i) (3d ed. 1994) (limiting restitution “to

the greater of the benefit to an offender or actual loss to

identified persons or entities”).

¶13         Reducing “loss” by any benefits conferred furthers the

restitutory    purposes       of    making       the    victim   whole,    State   v.

Guilliams, 208 Ariz. 48, 52, ¶ 12, 90 P.3d 785, 789 (App. 2004);

In re Kory L., 194 Ariz. 215, 219, ¶ 10, 979 P.2d 543, 547 (App.

1999), and rehabilitating the offender, Wilkinson, 202 Ariz. at

30, ¶ 13, 39 P.3d at 1134; State v. Iniguez, 169 Ariz. 533, 536,

821 P.2d 194, 197 (App. 1991).                    Restitution is not meant to

penalize      the        defendant;       that     function       is    served     by

incarceration, fines, or probation.                    See Kory L., 194 Ariz. at

219, ¶ 10, 979 P.2d at 547.                Restitution therefore should not

compensate    victims       for    more    than        their   actual   loss.      See

generally George Blum, Measure and Elements of Restitution to

Which    Victim     is    Entitled    Under       State     Criminal    Statute,   15

A.L.R.5th 391, § 2(b) (1993).                 Courts in other jurisdictions

agree.     See, e.g., People v. Fortune, 28 Cal. Rptr. 3d 872, 874-

75 (Cal. Ct. App. 2005); Maurer v. State, 939 So. 2d 234, 235

(Fla. Dist. Ct. App. 2006); State v. Baxter, 118 P.3d 1291, 1293

(Kan. Ct. App. 2005); State v. Beavers, 3 P.3d 614, 616 (Mont.

2000), overruled on other grounds by State v. Herman, ___ P.3d

                                          - 8 -
___,     2008        WL     2221908        (Mont.       May    29,        2008);          People     v.

Tzitzikalakis, 864 N.E.2d 44, 46 (N.Y. 2007).

¶14               Limiting       the      victim’s      restitution             to    the     amount

necessary to recompense direct losses comports with the language

of     the        restitution          statutes,       makes     practical            sense,        and

preserves         the     proper    place       and   function        of    a    civil      jury     to

determine a victim’s actual damages, including damages for pain

and suffering, punitive damages, and consequential damages.                                         See

A.R.S.       §§    13-807        (2001)    (providing         that    a    restitution           order

“does not preclude [a victim] from bringing a separate civil

action       and    proving       in    that    action       damages       in    excess      of     the

amount of the restitution order”); 13-804(G) (recognizing that

restitution is not a substitute for civil litigation because

“[t]he       state        does    not     represent      persons          who    have       suffered

economic loss”); Wilkinson, 202 Ariz. at 29-30, ¶ 11, 39 P.3d at

1133-34       (interpreting             the     restitution          statute         to     avoid     a

conflict          with    Arizona’s        civil      jury    trial        right).          To     hold

otherwise          would       upset      the      relationship            among      reparation,

retribution,             and     rehabilitation,         and     blur        the      distinction

between criminal restitution and recovery for ancillary damages

protected by the civil jury trial.                             It might also provide a

windfall to the victim and encroach into punishment for the

defendant.

                                                - 9 -
¶15         Several jurisdictions permit reductions in restitution

for value conferred on the victim.               E.g., Beavers, 3 P.3d at 616

(citing Bowman v. State, 698 So. 2d 615, 616 (Fla. Dist. Ct.

App. 1997)); Tzitzikalakis, 864 N.E.2d at 46.                    In Tzitzikalakis,

for example, the defendant owned a construction company that

contracted with the City of New York.                  864 N.E.2d at 44-45.       He

pled guilty to crimes stemming from the submission of falsified

invoices.      Id. at 45.        The trial court ordered restitution in

the face amount of the falsified invoices and excluded evidence

showing    that    the    defendant     completed      some   construction      work.

Id.   The New York Court of Appeals held that the trial court

erred by excluding evidence of “the fair market value of the

goods and services [the defendant] provided to the city under

the contract.”        Id. at 45-46.          The court observed that trial

courts     “must   consider      not    only     the    amount    taken    by   [the

contractor,] but also the value of any benefit received by the

victim.”      Id. at 46; see also People v. Kom, 467 N.Y.S.2d 495,

495   (N.Y.    App.      Term   1983)    (requiring      reductions       for   value

victims received when determining restitution to be paid by one

convicted     of    performing        home     improvement       work   without     a

license).     We find the reasoning in Tzitzikalakis persuasive.

¶16         We also find guidance in decisions interpreting the

Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C.

                                        - 10 -
§ 3663A (2000 & Supp. 2007).               Much like Arizona law, the MVRA

requires defendants to pay restitution to their victims.                            See

id. § 3663A(a)(1).           The MVRA defines the amount of restitution

to be the value of property “loss” less the value “returned.”

Id. § 3663A(b)(1)(B).            Several federal circuits have interpreted

“returned”       to    require       reductions     in    restitution      for     value

conferred on victims.            E.g., United States v. Swanson, 394 F.3d

520, 528 (7th Cir. 2005); United States v. Matsumaru, 244 F.3d

1092, 1109 (9th Cir. 2001).

¶17         In United States v. Shepard, for example, the defendant

embezzled      funds    from     a   hospital     patient    under   the    guise     of

making improvements to the patient’s home.                      269 F.3d 884, 885

(7th    Cir.    2001).         The    Seventh     Circuit    concluded      that     the

starting       point   for     determining        restitution    was    the      amount

embezzled from the victim.              Id. at 887.         From this amount, the

court    subtracted      expenditures       made     on     improvements      to    the

victim’s home.         Id. at 887-88.           The court concluded that such

expenditures did not differ “in principle from taking the money

from one of [the victim’s] bank accounts and depositing it in

another.”       Id.    “[T]he change of the property’s form - from cash

to, say, central air conditioning –” does not mean the property

has not been “returned.”             Id. at 888.

¶18         We agree with the many courts that have concluded that,

                                         - 11 -
when determining the proper amount of restitution to be paid to

a victim, consideration should be made for value conferred on

the victim.3

B.            State v. Wilkinson

¶19                         The Town of Gilbert argues and the court of appeals

concluded that our decision in Wilkinson created a per se rule

that the entire amount of consideration paid by the victim in an

unlicensed contractor case is the proper amount of restitution,

regardless of any benefit conferred on the victim.                                              We disagree

that Wilkinson created such a rule.                                               Although Wilkinson also

involved the restitution due from an unlicensed contractor, it

decided an entirely different issue from the one now facing the

court.

¶20                         In Wilkinson, John Porter was convicted of contracting

without a license under § 32-1151.                                              202 Ariz. at 28, ¶ 3, 39

P.3d at 1132.                                  Porter had contracted with two homeowners, T.S.

and N.L., to perform remodeling work.                                            Id. ¶ 2.   T.S. and N.L.

paid             Porter                 $2854.77              and   $9040.27,   respectively.     Id.    At

Porter’s restitution hearing, the trial court awarded $22,429.11

to T.S. and $22,365.67 to N.L., which it calculated by “adding
                                                           
3
      The Town of Gilbert has cited no published opinion from any
other    jurisdiction  holding   that   the   entire  amount   of
consideration paid by homeowner-victims must be disgorged as
restitution, nor has our research revealed any such authority.


                                                                    - 12 -
the amounts each victim had paid to Porter to the estimated cost

of repairing Porter’s faulty work and finishing work he left

incomplete.”                            Id. ¶ 3.

¶21                         This Court concluded that the consideration paid by

T.S. and N.L. was the “loss” that flowed directly from Porter’s

illegal conduct.                                     Id. at 29, ¶ 9, 39 P.3d at 1133.          Any damages

for repairing T.S’s and N.L.’s homes or completing the work were

not “direct” because those damages required the occurrence of a

second causal event unrelated to the criminal activity itself -

that is, Porter’s faulty and unprofessional performance.                                                Id.

¶¶ 9-10.

¶22                         Although Wilkinson explored the extent to which “courts

can order restitution for victims of an unlicensed contractor

who performs incomplete and faulty work,” id. at 28, ¶ 1, 39

P.3d              at          1132,                and        more   specifically,   whether   losses   not

resulting from criminal conduct are subject to restitution, it

never addressed whether losses incurred by victim-homeowners may

be reduced by benefits conferred upon them.4                                           Because it did not

                                                           
4
     By focusing on payments made by the victim to the
defendant, Wilkinson did not adopt a per se rule for all
unlicensed contractor cases, but instead recognized that a
victim must incur a loss to recover any restitution.           A
defendant can violate § 32-1151 without receiving any payments.
See A.R.S. § 32-1151 (making it unlawful for an unlicensed
contractor to engage in the business of contracting without a
license, to submit bids or proposals, to respond to requests for

                                                                     - 13 -
address the issue before us, Wilkinson is not dispositive.5

¶23           We    recognize       the     legislature’s      strong    interest         in

protecting     the        public    from    unlicensed    contractors,           which    is

evidenced      by    the     onerous       requirements     for      licensure.          The

applicant seeking a license must post a bond, obtain experience

or    train   at     an     accredited      institution,       and    pass   a    written

examination;        he    may   also      have   to   submit    fingerprints        for    a

background         check.          A.R.S.    §   32-1122(B)(2),         (F).        Harsh



qualification or proposals for construction services, to act or
offer to act as a licensed contractor, or to purport to have the
capacity of a licensed contractor). Because the fact of payment
is not determinative as to the commission of the offense, it
would be anomalous to treat such payments as conclusively
establishing a right to restitution in the amount paid.
5
     Our dissenting colleague asserts that Wilkinson governs the
result in this case and that principles of stare decisis dictate
adherence to it. We disagree.
     Before applying the doctrine of stare decisis, a court must
first identify the legal principle entitled to respect.    E.g.,
Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan.
L. Rev. 953, 957 (2005) (noting that before applying stare
decisis, a court “must first determine just what that case
purports to establish”).   As we explained in paragraphs 19-22,
Wilkinson simply did not address the issue presented here.
     There are good reasons not to over-read Wilkinson as
holding that a homeowner is entitled to restitution for all
amounts paid to an unlicensed contractor regardless of any
benefits the homeowner received. Over-reading a decision can be
corrosive to the rule of law because it may lead a court to
ignore concerns not present in the earlier case and to embrace
conclusions that are contrary to common sense or experience.
This case illustrates this point; treating Wilkinson as
dispositive could lead to results that are contrary to the
language of the restitution statute, which contemplates that
victims will recover their losses, not a windfall.

                                            - 14 -
consequences                            await                 the   unlicensed    contractor.      Violation     of

§ 32-1151 is a class one misdemeanor, A.R.S. § 32-1164(A)(2),

for which incarceration, probation, and statutory fines serve as

punishment,                          id.           §§         13-707,   32-1164(B).        Conviction   may     also

disqualify the defendant from obtaining a license, § 32-1122(D),

(E).6

¶24                         The State thus already has many tools with which to

punish                 unlicensed                         contractors.           Reading   Wilkinson    to    forge

another tool - a rule of total disgorgement regardless of any

benefit conferred on the victim – would unnecessarily strain

Arizona’s restitution scheme and may lead to absurd or troubling

results.

¶25                         Consider,                         for   example,     the   situation   in   which    an

unlicensed contractor obtained $5000 from a homeowner to perform

construction work.                                            Under the Town’s reading of Wilkinson, the

unlicensed contractor has committed a crime under § 32-1151 and

the homeowner has incurred a $5000 “loss.”                                                 See 202 Ariz. at 29,

¶ 9, 39 P.3d at 1133.                                               Assume further, however, that one day


                                                           
6
     After Matykiewicz was convicted, the legislature amended
A.R.S. § 32-1164 to require unlicensed contractors to pay
transaction privilege taxes as a condition of probation. 2007
Ariz. Sess. Laws, ch. 174, § 1 (1st Reg. Sess.). This statute
also demonstrates the legislature’s understanding that one
convicted of contracting without a license may retain some
compensation, but must pay appropriate taxes on it.


                                                                        - 15 -
later the unlicensed contractor decided not to do the job and

returned                    the            $5000.              To    be    sure,   a    crime   has      still   been

committed under § 32-1151, but the homeowner has suffered no

loss.                No reasonable jurist would conclude, and the legislature

could not have intended, that the unlicensed contractor must pay

$5000 in restitution in addition to the $5000 already returned.

Such an outcome would result in a windfall for the victim.                                                        The

victim                would                similarly               receive    a   windfall    if    an   unlicensed

contractor flawlessly performed all work for which the victim

contracted, but then was required to disgorge all payments.7                                                       We

find no significant difference between returning cash, one form

of value, and returning other forms of value, such as permits,

chattels, services, or other property.                                                 See Shepard, 269 F.3d at

887-88.                    “Loss” is a concept rooted in value, not solely in the

exchange                    of          money.                We    thus     decline    to   read   Wilkinson      as

creating an inflexible rule of total disgorgement regardless of
                                                           
7
      The concern has been raised that requiring defendants to
pay as restitution the full amount of consideration received for
their services may encourage homeowners to knowingly hire
unlicensed contractors because upon conviction for contracting
without a license, the defendant must refund all payments. See
A.R.S. § 32-1153 (preventing unlicensed contractors from
bringing civil action to recover payment).        Such conduct,
however, might render the homeowner an accomplice and forfeit
the right to restitution.    See State v. Wilkinson, 198 Ariz.
376, 383, ¶ 36, 10 P.3d 634, 641 (App. 2000) (Ryan, J.,
dissenting), overruled by Wilkinson, 202 Ariz. at 31, 39 P.3d at
1135.


                                                                      - 16 -
value conferred.

¶26         We are persuaded that determining a victim’s “loss”

requires consideration of any benefits conferred on the victim.

“Most often there will be no reductions, as criminals rarely

confer a benefit on their victims.”        Tzitzikalakis, 864 N.E.2d

at 47.      If value is conferred, however, courts must consider

such benefits in determining a victim’s loss.

C.      Remand

¶27         On remand, the trial court must determine the amount of

the Radas’ loss.     While determination of a victim’s loss will

depend upon the unique facts of each case, the Radas’ payments

to Matykiewicz constitute prima facie evidence of their loss.

Wilkinson, 202 Ariz. at 29, ¶ 9, 39 P.3d at 1133.         The court

must then subtract from this sum any value Matykiewicz conferred

on the Radas.      This difference will usually be the victim’s

loss.     To this figure, the court must apply the remaining parts

of Wilkinson’s three-part test – that is, it may not compensate

the Radas for “expenses [they] incurred because [the unlicensed

contractor] failed to complete the work he contracted to do or

did so in a faulty manner.”    Id. ¶ 10.

¶28         We are aware that criminal restitution may not provide

victims the full benefit of their bargain because giving such

relief may require consideration of losses that do not flow

                               - 17 -
directly    from     the    crime       or   involve   losses      that   are   not

“economic.”        But we cautioned in Wilkinson that “[p]otential

problems arise if we too broadly combine civil liability with

criminal sentencing.”            Id. at 30, ¶ 12, 39 P.3d at 1134.              The

concern    remains       valid   today.       We   quoted   with    approval    the

following description of the problems that may arise in not

adhering    to     the     legislative       limitation     of    restitution    to

“economic loss”:

           If reparations as a condition of probation are to
      include elements beyond mere “special damages” we
      believe a trial court must use great caution.      The
      sentencing phase of a criminal case is not the ideal
      forum for the disposition of a [civil] case.      Both
      parties are deprived of a jury; the defendant may be
      limited in showing causation or developing a defense
      of contributory negligence or assumption of risk.

Id. (quoting State v. Garner, 115 Ariz. 579, 581, 566 P.2d 1055,

1057 (App. 1977)) (alteration in Wilkinson).                     Today’s decision

does not alter any rights a homeowner may have to recover any

indirect or non-economic damages in a subsequent civil action

against the unlicensed contractor.                 See A.R.S. § 13-807.         Nor

does our decision limit any defenses an unlicensed contractor

may have in such actions.           It preserves each party’s civil jury

trial right.

                                 III.    CONCLUSION

¶29        For the foregoing reasons, we reverse the opinion of

the court of appeals, affirm the judgment of the superior court,
                                        - 18 -
and remand the case to the Town of Gilbert Municipal Court for

proceedings consistent with this opinion.



                                  _______________________________________
                                  Rebecca White Berch, Vice Chief Justice


CONCURRING:


_______________________________________
Michael D. Ryan, Justice


_______________________________________
W. Scott Bales, Justice




H U R W I T Z, Justice, concurring in part and concurring in the
result

¶30           The term “economic loss” in A.R.S. §§ 13-603(C) and -

804   should       be   given   its     commonsense    meaning     when    the     case

involves contracting without a license.                Thus, the victim should

receive   the      difference     between     what    he    paid   the    unlicensed

contractor and the value of what he received in return.                      If the

restitution statutes are read to require that the amount paid is

invariably the measure of restitution, an untenable result would

obtain    –    a    homeowner     who     received    flawless     work    from     an

unlicensed contractor would be refunded the full amount paid but

would    nonetheless       also   retain     the     work   performed.        It    is

                                         - 19 -
impossible for me to view such a victim as having suffered any

loss, economic or otherwise, and I therefore concur in ¶¶ 1-18

of the majority opinion.

¶31            I write briefly, however, to address the subject that

divides the majority and the dissent – the effect to be given to

State v. Wilkinson, 202 Ariz. 27, 39 P.3d 1131 (2002).                           The

majority        correctly      notes    that      Wilkinson        is     factually

distinguishable.          The issue in that case was whether the victim

could     recover     restitution      above     the   amount      paid    to    the

unlicensed contractor; the issue here is whether the amount paid

is the appropriate amount of restitution when the homeowner has

received value in return.           Thus, the narrow holding in Wilkinson

does not control the case before us.

¶32            But it is not just the narrow holdings of our prior

cases that are entitled to respect under the doctrine of stare

decisis.       Rather, deference should also properly extend to the

Court’s core rationale, the reasoning essential to the result in

the prior case.           See Seminole Tribe of Florida v. Florida, 517

U.S. 44, 66-67 (1996); Miller v. Gammie, 335 F.3d 889, 900 (9th

Cir. 2003) (en banc).

¶33            As   the    Chief   Justice     notes   in    her    dissent,     the

essential premise of Wilkinson was that the crime of contracting

without    a    license     was    complete     when   the   victims      paid   the

                                       - 20 -
unlicensed contractor.          See Wilkinson, 202 Ariz. at 29 ¶¶ 9, 39

P.3d at 1133.        Wilkinson therefore held that the quality of any

work performed under the contract was irrelevant to the issue of

criminal restitution.        Id. ¶ 10.       Rather, because the crime was

complete before any work was done, Wilkinson reasoned that the

appropriate measure of “economic loss” suffered by a victim of

unlicensed contracting is the amount paid to the contractor.

Id.   at    29-30    ¶¶ 8-14,   39    P.3d   at   1133-34.         Applying    this

rationale, the victims in this case would receive restitution of

their total payments to Matykiewicz, regardless of the value of

any completed work.

¶34           This, however, does not end the inquiry.                  Although

stare      decisis   has   powerful    force,     “[i]t   is   a    doctrine    of

persuasion . . . and not an ironclad rule.”               Lowing v. Allstate

Ins. Co., 176 Ariz. 101, 107, 859 P.2d 724, 730 (1993).                  Even in

cases involving statutory construction, “we are not prisoners of

the past,” particularly when the language of the statute at

issue “does not compel the interpretation reached in previous

cases.”      Id.

¶35           Applying the rationale of Wilkinson to the case before

us would lead to a conclusion that a victim has “economic loss”

under the restitution statutes even if he has none in reality.

Whatever its stare decisis effect, I cannot accept Wilkinson’s

                                      - 21 -
rationale      when      it    would   produce       a    result       at   odds    with    the

language of the restitution statutes.

¶36           The policy behind the doctrine of stare decisis is

that   the     public         should   be    able    to    rely    on       prior    judicial

opinions in conducting affairs.                     Lowing, 176 Ariz. at 107, 859

P.2d at 730.            That policy is not implicated in this case.                         No

victim    of       an    unlicensed         contractor         could    have       relied    on

Wilkinson.         As then-Judge Ryan once aptly noted, those with

knowledge that a contractor with whom they deal is unlicensed

are not victims at all, but rather accomplices to the offense

not entitled to restitution.                 State v. Wilkinson, 198 Ariz. 376,

383 ¶ 36, 10 P.3d 634, 641 (App. 2000) (Ryan, J., dissenting).

And it goes without saying that an unlicensed contractor could

not have relied to his detriment on Wilkinson, as that case

would impose broader liability on him than the Court’s decision

today.       See Benjamin N. Cardozo, The Nature of the Judicial

Process      151    (1921)       (“There      should      be    greater        readiness     to

abandon an untenable position when the rule to be discarded may

not reasonably be supposed to have determined the conduct of the

litigants.”).

¶37           In    short,       although       I    recognize          that     Wilkinson’s

rationale would produce a different result if applied to this

case, I find its reasoning contrary to the clear directive of

                                            - 22 -
the statute that a victim must suffer an actual loss before

receiving restitution.            In the case of unlicensed contracting,

loss is measured by the difference in value between what the

victim paid and what he received.                    I therefore concur in the

judgment of the Court.



                                          __________________________________
                                          Andrew D. Hurwitz, Justice




M c G R E G O R, Chief Justice, dissenting:

¶38        I    respectfully           dissent.      Today’s     decision,         without

compelling reason or justification, essentially overturns this

Court’s recent decision in State v. Wilkinson,                       202 Ariz. 27, 39

P.3d 1131 (2002).            Because I cannot join an approach that so

casually ignores the basic doctrine of stare decisis, I cannot

join today’s Opinion.

¶39        Despite the majority’s assertions otherwise, this case

fits   precisely        within    the     rule     of   law     we    established      in

Wilkinson.       The     action    against        Matykiewicz,       like    the   action

against   the    defendant        in    Wilkinson,      began    when       dissatisfied

homeowners      filed    a   complaint      against      a    contractor       with   the

Registrar of Contractors.                In both instances, the homeowners

                                         - 23 -
then learned that the person with whom they had contracted was

not licensed.           In both cases, the unlicensed contractor was

convicted of violating Arizona Revised Statutes (A.R.S.) section

32-1151 (2008).         In Wilkinson, we concluded:

        As a direct result of [the defendant’s] offer to act
        as a licensed contractor, [the victims] agreed to pay,
        and did pay, all or a portion of the amounts due under
        their   agreements   with  [the   defendant].     [The
        defendant’s] criminal actions directly caused those
        losses. . . . Under Arizona’s statutes, these victims
        are entitled to recover their payments to [the
        defendant] as restitution.

202 Ariz. at 29 ¶ 9, 39 P.3d at 1133.

¶40         The        doctrine     of     stare    decisis      thus     compels      that

Matykiewicz       be    ordered     to    return     all    monies      paid   under   the

agreement    as    restitution           because    his    criminal     actions     caused

those losses without the intervention of additional causative

factors.     See White v. Bateman, 89 Ariz. 110, 114, 358 P.2d 712,

714 (1961) (“The fact that the construction of the statute in

question rests on a single case does not render it any less the

duty of this court to utilize the doctrine of stare decisis

. . . .”).

¶41         The    rule       of   law    depends    to    a    great    extent    upon   a

healthy respect for precedent.                “The doctrine of stare decisis,

which     requires       us    to    give     weight       to    previous      decisions

addressing the same issue, seeks to promote reliability so that

parties can plan activities knowing what the law is.”                             Galloway
                                           - 24 -
v. Vanderpool, 205 Ariz. 252, 256 ¶ 16, 69 P.3d 23, 27 (2003)

(McGregor, J.).      “Stare decisis reflects a policy judgment that

in most matters it is more important that the applicable rule of

law be settled than that it be settled right.”               State Oil Co. v.

Khan, 522 U.S. 3, 20 (1997) (internal quotation omitted).                Stare

decisis “promotes the evenhanded, predictable, and consistent

development of legal principles, fosters reliance on judicial

decisions, and contributes to the actual and perceived integrity

of the judicial process.”       Payne v. Tennessee, 501 U.S. 808, 827

(1991).

¶42        Because    an   evenhanded,        predictable,    and    consistent

approach to applying the law is essential to the integrity of

the judicial process, we do not lightly overrule precedent; we

do so only for compelling reasons.              “[A]ny departure from the

doctrine   of   stare      decisis    demands     special     justification.”

Arizona v. Rumsey, 467 U.S. 203, 212 (1984); see also State v.

Davis, 206 Ariz. 377, 384 n.4 ¶ 34, 79 P.3d 64, 71 n.4 (2003)

(Berch, J.) (A relatively recent decision of this Court is not

“lightly    overrule[d].”).            “While      the      phrase    ‘special

justification’ defies simple definition, it does require more

than that a prior case was wrongly decided.”             State v. Hickman,

205 Ariz. 192, 200 ¶ 37, 68 P.3d 418, 426 (2003) (Ryan, J.).

Even when this Court has doubted the wisdom of precedent, we

                                     - 25 -
have followed previous opinions based upon our respect for the

doctrine of stare decisis and our recognition of its importance.

See State v. Lara, 171 Ariz. 282, 285, 830 P.2d 803, 806 (1992)

(restating the holding of a previous case despite the fact that

if the Court had been “writing on a clean slate” it might have

taken another approach); Stewart v. Damron, 63 Ariz. 158, 165,

160    P.2d     321,     324   (1945)       (doubting      the   wisdom     of     prior

decisions, but finding the matter foreclosed by stare decisis).

¶43            Our failure to apply the doctrine of stare decisis in

this    case    is   especially         troubling    for   two   reasons.        First,

resolving the issue presented here and in Wilkinson required us

to    interpret      a   statute.        “When   a   court   proposes      to    abandon

precedent in a case involving . . . statutory interpretation[,]

the burden is highest.”             Hickman, 205 Ariz. at 201 ¶ 38, 68 P.3d

at 427; see also State v. Fell, 210 Ariz. 554, 561 ¶ 26, 115

P.3d    594,     601     (2005)     (Hurwitz,        J.)   (“[O]ur   deference        to

precedent is strongest when prior decisions construe a statute.”

(quoting Galloway, 205 Ariz. at 256 ¶ 16, 69 P.3d at 27)).                          The

reason we give the most deference when construing a statute is

because “if we have interpret[ed] the statute other than as the

legislature       intended,       the    legislature       retains   the    power    to

correct us.”         Hancock v. Bisnar, 212 Ariz. 344, 349 ¶ 22, 132

P.3d 283, 288 (2006) (Hurwitz, J.) (internal quotation omitted).

                                          - 26 -
In the six years since Wilkinson, the legislature has given no

indication whatsoever that we incorrectly construed Arizona’s

restitution statutes.          Today, the majority simply ignores the

legislature’s apparent approval of the statutory interpretation

of Wilkinson and adopts a new interpretation.

¶44           Second, the majority neither provides any compelling

reason   nor    points    to   any    change    in   the   law   that   justifies

overturning our prior decision.             That approach is inconsistent

with our insistence that some strong reason justify a departure

from prior decisions.          The doctrine of stare decisis “should be

adhered to unless the reasons of the prior decisions have ceased

to    exist    or   the   prior      decision   was    clearly    erroneous    or

manifestly wrong.”        White, 89 Ariz. at 113, 358 P.2d at 714; see

also Neal v. United States, 516 U.S. 284, 295 (1996) (finding

that once a court has determined a statute's meaning, the court

should adhere to that ruling absent “intervening development of

the law” or “compelling evidence bearing on [the legislature’s]

original intent”).        The ordinary reasons for failing to adhere

to the doctrine of stare decisis are not present in this case.

No intervening development in the law pertaining to criminal

restitution has occurred since Wilkinson was issued in 2002.

Also, the result directed by Wilkinson, that all monies paid

under the contract must be returned, is not clearly erroneous.

                                      - 27 -
It remains true that forcing a criminal to yield the fruits of

his crime to his victim furthers the original conception of

restitution.       See Wilkinson, 202 Ariz. at 29 ¶ 9, 39 P.3d at

1133.     It remains true that the rule of Wilkinson protects the

public from unlicensed contractors by rehabilitating offenders

and     thus    preventing     them    from    again    contracting         without    a

license.       Id. at 30 ¶ 13, 39 P.3d at 1134.              Further, the result

in    Wilkinson    prevents     the    problems    that     arise      when   we    “too

broadly combine civil liability with criminal sentencing.”                            See

id. at 30 ¶ 12, 39 P.3d at 1134 (“The sentencing phase of a

criminal case is not the ideal forum for the disposition of a

[civil] case.” (quoting State v. Garner, 115 Ariz. 579, 581, 566

P.2d 1055, 1057 (App. 1977))).                Today’s opinion will transform

restitution       hearings     into    the     equivalent       of    complex      civil

trials, held without benefit of a jury.

¶45            The doctrine of stare decisis ensures that a court’s

current    decisions        remain    tied    to   precedent,        not    simply    to

respect        precedent,     but     to      promote     the        continuity       and

predictability so essential to the rule of law.                            My greatest

concern with today’s decision is that it separates this Court’s

analytical framework from our long adherence to stare decisis.

When we ignore precedent without a compelling reason for doing

so, we undermine public trust in the integrity of the law.                         I do

                                       - 28 -
not   believe   this   case   justifies    undermining   such   trust   and

confidence, and therefore dissent.


                                  __________________________________
                                  Ruth V. McGregor, Chief Justice




                                  - 29 -
