(Cite as: 180
Ariz. 450, 885 P.2d 138)
STATE of Arizona, Appellee,
Joseph Michael CONTRERAS, Appellant.
No. 1 CA-CR 92-1857.
Court of Appeals of Arizona,
Division 1, Department C.
May 17, 1994.
Review Denied Dec. 20, 1994.
Joseph Michael Contreras ("defendant") pled guilty to first-degree criminal
trespass, a class 6 undesignated offense, for which two years of probation
were ordered. He has appealed from the trial court's later modification of
the terms of probation to add a condition that he pay restitution to the
victims of his crime. The sole issue presented is **140 *452 whether a
trial court may modify a defendant's conditions of probation to impose
restitution after probation has been ordered and in the absence of any
grounds supporting its revocation. For the reasons which follow, we affirm
the trial court's order.
FACTUAL AND PROCEDURAL HISTORY
On June 16, 1992, the defendant entered a written plea of guilty to first-
degree criminal trespass. The charge arose from an incident occurring on
March 22, 1991, when the defendant went in a window of a neighbor's home and
several items of electronic equipment later were found to be missing. The
plea agreement provided that "[r]estitution of economic loss to the victim
... [is] required" and stipulated that "[r]estitution, if any, [is] not to
exceed $1000.00." The defendant further stipulated that he fully understood
that, if he were "granted probation by the court, the terms and conditions
thereof are subject to modification at any time during the period of
probation." At the change-of-plea hearing, the following exchange also took
The Court: If there was any economic loss suffered by the victims, I will
be requiring you to pay restitution. I see you are agreeing to pay up to
$1,000 for that economic loss. Is that your understanding?
The defendant: Yes, sir.
The trial court found that the defendant's guilty plea was knowingly,
intelligently and voluntarily made, that he understood the nature and range
of sentences and other penalties, and that there was an appropriate factual
basis for the plea.
The presentence report stated that one of the victims had told the police
at the time of the incident that a VCR and cable box were missing and had to
be replaced. This victim also had said that her son was missing an
electronic mixer board and an 800-watt power amplifier. However, since the
victim had not responded to inquiries concerning the value of the missing
items, no probationary term regarding the payment of restitution was
recommended to the court.
On July 15, 1992, the trial court suspended the defendant's sentence and
imposed a two-year term of probation with certain terms and conditions. No
restitution payments to the victims were ordered as a condition of probation
at that time.
Two months later, the defendant's probation officer petitioned the trial
court to modify the conditions of probation to add a term ordering the
defendant to pay restitution. [FN1] The defendant objected, arguing that
the victims had waived any right to restitution by neglecting to answer a
letter from the Maricopa County Attorney's Office requesting a list of
expenses covering the missing items prior to his sentencing. The defendant
also contended that the court lacked jurisdiction to modify the probationary
terms absent some showing of grounds to revoke probation or other changed
FN1. While the actual petition to modify was not made part of the record on
appeal, the trial court's minute entry noting receipt of it, as well as the
defendant's response, are part of the record and its contents are not
The trial court held restitution hearings on November 18 and December 1,
1992, during which one victim testified to economic losses of $220 for a
VCR, $110 for a cable box and $200 for wages lost in attending court
hearings. Her son reported that the value of his missing equipment totalled
$1950. The mother acknowledged having received a letter dated June 22,
1992, from the County Attorney's Office informing her of the defendant's
guilty plea and sentencing date, and stating that it would be "helpful" if
she could provide a written list and substantiation for all of her losses,
that she "probably" would be contacted by an investigator from the probation
department, and that it was "very important" that the trial court receive
this information prior to sentencing. She could not recall why she had not
responded to the letter, but denied having received any subsequent calls
from the probation department concerning her losses.
 The trial court found that principles of fundamental fairness required
the imposition of restitution and that the plea agreement itself
demonstrated the parties' intention that restitution be ordered. It
modified **141 *453 the probationary terms to add a condition requiring
payment of restitution but felt bound by the $1000 maximum specified in the
plea agreement and therefore awarded only $330 to the victim and $670 to her
son. [FN2] The court again suspended sentence and imposed a two-year term
of probation to begin on the date of the original judgment, modifying as was
necessary the previously-ordered hours of community service to reflect
credit for time served and rearranging the defendant's financial obligations
on probation so that the restitution payments became first priority. The
defendant timely appealed.
FN2. Although the transcript of the restitution hearing states that the
victim was awarded $300 rather than $330 as noted in the minute entry, a
previous discussion on the record, as well as the modified terms of
probation, indicate that the trial court intended to award her $330. When
we are able to ascertain the trial court's intention by reference to the
record, remand for clarification is unnecessary. State v. Bowles, 173 Ariz.
214, 216, 841 P.2d 209, 211 (App.1992). We therefore clarify this
discrepancy on appeal pursuant to Arizona Revised Statutes Annotated section
 The defendant argues that the trial court lacked jurisdiction to modify
his terms of probation to add a condition that he pay restitution. He
claims that the victims waived their right to restitution by not coming
forward prior to sentencing and that the state's failure to appeal the lack
of restitution in the original disposition barred the court from disturbing
that final judgment. In the alternative, the defendant contends that the
trial court abused its discretion in allowing the modification because it
imposed a greater burden upon him than the original terms of probation
without a reasonable basis. Finally, he claims that the trial court's
restitution order was an illegal sentence that violated his right to
procedural due process.
The defendant relies on Burton v. Superior Court, 27 Ariz.App. 797, 558
P.2d 992 (App.1977), in support of his claims. In Burton, the defendant
pled guilty to theft of a cement mixer and received a two-year term of
probation. The trial court did not impose any restitution as a condition of
probation. Fifteen months later, a petition to modify the terms of
probation was filed to add a condition that the victim be paid restitution.
The trial court granted the modification and extended the defendant's term
of probation so that he could make the restitution payments. This court
reversed, finding no reasonable basis to justify the additional condition
and held that, when additional burdens are imposed on probation, the record
must demonstrate that the petitioner violated a term of probation or other
changed circumstances. Id. at 800, 558 P.2d at 995.
Burton is distinguishable from the present case. Initially, Burton does
not indicate whether the defendant had agreed as part of his plea agreement
to pay restitution. Also, Burton's term of probation was extended whereas
this defendant's term of probation remained unchanged. Finally, recent
decisions of this court and a constitutional amendment on the subject of
restitution have called the holding of Burton into question.
 A trial court is required by Arizona Revised Statutes Annotated ("A.R.S.")
section 13-603(C) to impose restitution to reimburse the victims of crime
for their full economic loss. State v. Foy, 176 Ariz. 166, 168, 859 P.2d
789, 791 (App.1993); State v. Holguin, 177 Ariz. 589, 870 P.2d 407
(App.1993); State v. Steffy, 173 Ariz. 90, 93, 839 P.2d 1135, 1138
(App.1992). Although restitution is generally ordered when the suspended
sentence is declared, the court must have sufficient evidence upon which to
base its restitution order. Holguin, 177 Ariz. at 591, 870 P.2d at 409.
 When the trial court suspends sentence and orders probation, the
sentence is not final. The court retains jurisdiction over the probationary
terms and the probationer until the term of probation is successfully
completed or until it is revoked and a prison sentence ordered. Id.; A.R.S.
§ 13- 603(B). As the defendant knew, A.R.S. section 13-901(C) provides that
the trial court may, in its discretion, modify or add to the conditions of
probation "at any time prior to the expiration or termination of the period
of probation," whether or not probation is revoked. Foy, 176 Ariz. at 168,
859 P.2d at 791. In light of this clear statutory statement to the **142
*454 contrary, the defendant's argument that his initial probationary terms
constituted a judgment which could not be disturbed fails.
 We next address whether a victim waives the right to mandatory
restitution by failing to respond to a letter requesting a valuation of
losses. In Arizona, victims of crime have a constitutional right "[t]o
receive prompt restitution from the person or persons convicted of the
criminal conduct that caused the victim's loss or injury." Ariz. Const.
art. 2, § 2.1(A)(8). The letter to the victim here was sent in accordance
with A.R.S. section 13-4410(B), which requires the state to inform a victim
of the right to make a statement and includes the right to describe the
extent of restitution sought. This notice did not, however, substitute for
the probation officer's independent duty to contact the victim to determine
the financial consequences of the crime as part of the presentence
investigation. Certainly this letter, in its precatory wording, was not
sufficient to serve as a waiver of the victim's rights should no response
from the victim be forthcoming. See A.R.S. § 13-4410(D), § 12-253. While
the victim admitted to having received a letter from the county attorney's
office, she denied having received any calls from the probation department
and demonstrated no appreciation that, by not responding to the letter, she
would relinquish her right to restitution.
 Further, this court has held that, even if a victim declines to request
restitution, the trial court's obligation to order it is not excused. Steffy,
173 Ariz. at 93, 839 P.2d at 1138. The objectives of mandatory restitution
include not only reparation to the victim, but also rehabilitation of the
defendant. Foy, 176 Ariz. at 169, 859 P.2d at 793; State v. Freeman, 174
Ariz. 303, 306, 848 P.2d 882, 885 (App.1993); State v. Iniguez, 169 Ariz.
533, 536, 821 P.2d 194, 197 (App.1991). "Restitution is not a claim which
belongs to the victim, but a remedial measure that the court is statutorily
obligated to employ." Iniguez, 169 Ariz. at 536, 821 P.2d at 197.
Accordingly, the modification of the terms of probation to increase
restitution does not constitute an increase in punishment "but rather an
increase in a non-punitive aspect of probation directed towards a proper
rehabilitative goal and to making the victim whole." Foy, 176 Ariz. at 169,
859 P.2d at 792.
 In this case, the defendant had notice of his obligation to pay
restitution from both the written plea agreement and his discussion with the
trial court at the change-of-plea hearing. Although the court did not order
restitution in the original disposition, nothing in the record precluded it
upon the court's subsequent receipt of a valuation of the victims' economic
losses. When the victims did come forward, the defendant was given notice
and allowed to contest the information they presented at two restitution
hearings, satisfying any due process concerns. The trial court found that,
despite a "breakdown in communications" in the victims making the amount of
their restitution claims known to the court, they were nonetheless entitled
to restitution. Given the trial court's continuing jurisdiction over
probationary terms until successful completion of probation, the mandatory
nature of restitution, and the procedure and facts of this case, the trial
court did not exceed its jurisdiction or abuse its discretion in granting
the modification of the defendant's terms of probation. We therefore affirm
the trial court's grant of the petition to modify the defendant's terms of
probation to add a condition that the defendant make restitution payments to
the victims of his crime.
TOCI, P.J., concurs.
NOYES, Judge, dissenting.
I respectfully dissent for two reasons: waiver of rights and lack of
Waiver of Rights
These victims waived their restitution rights by failing to act despite
having notice of the need for action. They received and ignored letters from
both the county attorney and the probation office requesting them to contact
the probation officer and give information about their losses and their
sentencing recommendation. The victims admitted to the court that they
received the notice, did **143 *455 nothing, and had no explanation for why
they did nothing.
A.R.S. section 13-804(D) (Supp.1993) requires the probation office to "make
reasonable efforts to contact any victim." The victims were in fact contacted
in this case, by mail, but they did not respond. The presentence report
advises: "As the victim has failed to respond to this officer's request for
restitution, no restitution will be recommended to the court." If the court
or the county attorney had a problem with the sufficiency of the probation
officer's investigation or report, the time to do something about it was prior
to sentencing. See A.R.S. § 13-804(F) ("If the court does not have sufficient
evidence to support a finding of the amount of restitution or the manner in
which the restitution should be paid, it may conduct a hearing upon the
issue...."); see also A.R.S. § 13-804(G) (providing that the restitution
order "may be supported by evidence or information introduced or submitted to
the court before sentencing or any evidence previously heard by the judge
during the proceedings") (emphasis supplied).
Lack of Jurisdiction
Rule 26.16(a), Arizona Rules of Criminal Procedure, provides: "The judgment
of conviction and the sentence thereon are complete and valid as of the time
of their oral pronouncement in open court." Similarly, the suspension of
sentence and imposition of probation is final and complete at the time of
pronouncement by the court. Burton v. Superior Ct., 27 Ariz.App. 797, 800,
558 P.2d 992, 995 (App.1977) (citing Ariz.R.Crim.P. 16 and State v. Fuentes,
26 Ariz.App. 444, 549 P.2d 224, approved, 113 Ariz. 285, 551 P.2d 554
(1976)). Although the court can modify or add to the conditions of probation
during the term of probation, A.R.S. § 13-901(C) (Supp.1993), it cannot
increase the amount of court-ordered payments unless defendant has violated
probation. Burton, 27 Ariz.App. at 800, 558 P.2d at 995.
The majority distinguishes Burton on its facts and on grounds that its
correctness has been called into question by State v. Foy, 176 Ariz. 166, 859
P.2d 789 (App.1993), State v. Holguin, 870 P.2d 407 (App.1993), and State v.
Steffy, 173 Ariz. 90, 839 P.2d 1135 (App.1992). Although none of these cases
discusses Burton, I respectfully suggest that two are distinguishable from
Burton and the other is consistent with it. Steffy addresses an insurance
reimbursement issue and does nothing to suggest that the court has
jurisdiction to order a post-judgment increase in restitution. Foy reaches a
different result than Burton, but Foy did not have to reach the jurisdictional
issue; it struck a post-judgment increase in restitution on the facts.
Holguin is consistent with Burton. In Holguin, restitution was not ordered
at sentencing because the victim was out of contact in Saudi Arabia. 870 P.2d
at 409. By the time the defendant was back in court on a petition to revoke
probation, the victim was in contact with the court. Id. At resentencing,
the court imposed restitution and was affirmed on appeal. Id., 870 P.2d at
409. Holguin holds that "the assessment of restitution at a sentencing
proceeding after the failure to complete a suspended sentence is
appropriate." 870 P.2d at 410. Burton holds that "[w]here additional burdens
are imposed on the probationer, such as additional restitution, as in this
case, the record must contain evidence that the probationer violated a
condition of probation upon which to base the burden." 27 Ariz.App. at 800,
558 P.2d at 995.
The majority also implies that Burton has been called into question by Ariz.
Const. art. 2, § 2.1 ("Victims' Bill of Rights"). The Victims' Bill of Rights
does many things, but I respectfully suggest that it cannot be fairly
construed to change existing law regarding a trial court's jurisdiction on
post-sentence restitution issues. A.R.S. section 13-805(A) (Supp.1993), which
defines the trial court's post-sentence jurisdiction regarding restitution and
other court-ordered payments, provides that "[t]he trial court shall retain
jurisdiction of the case for purposes of modifying the manner in which
court-ordered payments are made until paid in full, or until the defendant's
sentence expires." (Emphasis supplied.) Nothing in that statute confers
jurisdiction on the court for a post-sentence increase in the amount of a
**144 *456 I respectfully suggest that we should follow the reasoning and
policy expressed in Burton. If Appellant is ever resentenced following
probation violation proceedings, the trial court can at that time revisit the
END OF DOCUMENT