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Constitution—Crime Victim Right to Be Heard re Restitution

Posted by Ted A. Schmidt | Sep 20, 2021 | 0 Comments

Constitution—Crime Victim Right to Be Heard re Restitution

State v. Fox, No. CR-20-036-PR  (September 20, 2021) (J. Bolick)


Defendant shot and killed a man in his home and was convicted of second degree murder. The mother of the murder victim sought $570,159.45 in restitution as a crime victim under the Victim's Bill of Rights. See Ariz. Const. art. 2, § 2.1(C). In a Joint Report Regarding Remaining Restitution Issues the parties agreed to $558, 117.45 in restitution but the court awarded $562,980.45.

Eight months later the defendant filed a Petition for Post-Conviction Relief based primarily upon the claim of ineffective assistance of counsel, but asked for an expedited ruling on his petition to delay the appeal of the restitution order—the Limited Petition. Mom files a Response to the Limited Petition and defendant moves to strike the response essentially claiming she lacked standing. The trial court agreed resulting in Mom bringing this Special Action.

The Arizona Court of Appeals  accepted jurisdiction but denied relief. The Arizona Supreme Court accepted jurisdiction and reversed the superior court while vacating and remanding the court of appeals decision.

The supreme court held: “In this case, we hold that a crime victim has a constitutional and statutory right to be heard on the merits of a defendant's motion for a delayed appeal of a restitution order.”

“The Victim's Bill of Rights is an intended baseline, not a ceiling.”

“The  determination  of  whether  [defendant]  may  proceed  with  a 

delayed appeal of the restitution order will directly impact [the victim's} rights to

due process, prompt restitution, and finality.  The latter two are substantive

rights.  Should [Defendant] prevail in his effort to present a delayed appeal, it

will  have the inevitable effect of delaying restitution and postponing

finality. But for the pending motion, the issue of restitution would be settled. 

The victim's right to due process attaches to those substantive


About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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