Constitution—Crime Victim Right to Be Heard re Restitution

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

CRIME VICTIM HAS CONSTITUTIONAL RIGHT TO BE HEARD ON THE MERITS OF A DEFENDANT'S ATTEMPT TO DELAY APPEAL

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 rights.”

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