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State v. Dustin

Court of Appeals of Arizona, First Division

August 27, 2019

STATE OF ARIZONA, Appellee,
v.
JOSEPH E. DUSTIN, Appellant.

          Appeal from the Superior Court in Yavapai County No. P1300CR201701095 The Honorable Patricia A. Trebesch, Judge, Retired

          Arizona Attorney General's Office, Phoenix By Eric Knobloch Counsel for Appellee

          M. Alex Harris PC, Chino Valley By M. Alex Harris Counsel for Appellant

          Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.

          OPINION

          BROWN, JUDGE.

         ¶1 We address here whether the superior court lawfully imposed a "time payment fee" and a "criminal restitution order" at sentencing following Joseph E. Dustin's conviction for unlawful flight from a pursuing law enforcement vehicle. We consider other issues Dustin raises in a separate memorandum decision. See Ariz. R. Sup. Ct. 111(a)(2), (h); Ariz. R. Crim. P. 31.19(f). For the following reasons, we affirm the court's imposition of the time payment fee but vacate the criminal restitution order.

         BACKGROUND

         ¶2 The State charged Dustin with one count of unlawful flight from a pursuing law enforcement vehicle, a class 5 felony. After the jury returned a guilty verdict, the superior court sentenced Dustin to prison. The court imposed no fine authorized by A.R.S. § 13-801, but it ordered Dustin to pay the following: a time payment fee of $20; a public defender assessment fee of $25; a probation assessment (formerly known as a probation surcharge) of $20; a penalty assessment of $13; and a victim rights enforcement assessment of $2. The court then reduced the monetary obligations to a criminal restitution order ("CRO"). Dustin timely appealed.

         DISCUSSION

         A. Time Payment Fee

         ¶3 Dustin argues the superior court erred by imposing a time payment fee because there was no corresponding penalty, fine or sanction that triggered statutory authorization of the fee. See A.R.S. § 12-116. Because Dustin did not object at sentencing, we review for fundamental error. State v. McDonagh, 232 Ariz. 247, 248, ¶ 7 (App. 2013). If the time payment fee was not authorized by statute, it constitutes an illegal sentence, and the court fundamentally erred in imposing it. Id. at 248-49 (concluding that imposing "an unauthorized fine renders a criminal sentence illegal," which "constitutes fundamental error").

         ¶4 We review the interpretation of statutes de novo. State v. Francis, 243 Ariz. 434, 435, ¶ 6 (2018). "When the statutory language is clear and has only one reasonable construction, we apply it according to its plain meaning." Id. We construe related statutes together, "seeking to give meaning to all provisions." Id.

         ¶5 Our legislature has mandated that trial courts impose a time payment fee under the following circumstances:

In addition to any other assessment authorized by law, a fee of twenty dollars shall be assessed on each person who pays a court ordered penalty, fine or sanction on a time payment basis, including parking penalties, restitution and juvenile monetary assessments. A time payment basis shall be any penalty, fine or sanction not paid in full on the date the court imposed the fine, penalty or sanction. Notwithstanding any other law, the time ...

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