OPINION
This appeal challenges the act of the trial court in requiring appellant, as a condition of probation, to make installment payments totaling $6,000 to the victim of the crime.
The record before us shows that appellant discharged an air rifle and that the bullet so discharged struck Everett Deemer and lodged in his neck. The incident occurred while a grоup of youths, including appellant, were verbally and otherwise abusing Deemer. There are indications in the record that had the shot been a fraction of an inch to either side Deemer would have been killed or paralyzed. As it is, the bullet remains in Deemer’s neck because it cannot be safely removed and Deemer is significantly incapacitated.
Appellant was charged in an information with assault with a deadly weapon (ARS § 13-249). He entered a plea of not guilty to that offense. Appellant subsequently waived his right to a trial by jury and his сase was submitted to the trial court for decision on the police departmental report and what apparently may have been an understanding that the charge would bе amended to aggravated battery, open end (ARS § 13-245). The trial court immediately found appellant guilty of the latter crime and the case was set for sentencing before another judge. The sentencing judge placed appellant on probation for five years and required him to pay $6,000 to Deemer at the rate of $125 per month until paid in full. The only monеtary damage referred to in the record before us is the sum of $2,600 which an insurance company had paid to Deemer for medical expenses at the time of the presentence report. The probation officer recommended in the probation report that appellant be required to repay the sum of $1,800 to the insurance cоmpany.
The Arizona Supreme Court first addressed the question of reparations in the case of
Redewill v. Superior Court,
After
Redewill
the supreme court next dealt extensively with the subject of restitution or reparations as a condition of probation in
Shenah v. Henderson,
There is no indication in Shenah of the amount of insurance available or whether the reparаtion bore any relationship to any specific element or elements of resulting loss. Thus, we do not know whether the reparation together with the insurance exceeded exactly calculable damages or what in our civil litigation would be referred to as “special” damages. Language in the *581 opinion, however, seems susceptible of the inference that the reparation was arbitrarily fixed and that it and the insurance exceeded the readily calculable monetary loss. It seems likely that the opinion would havе reflected a contrary showing.
We refer to this aspect of
Shenah
in detail because it has been held in another jurisdiction that a “reparation” should be limited to “liquidated or easily measurable damages.”
State v. Stalheim,
If reparations as a condition of probation are tо 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 negligence case. Both parties are deprived of a jury; the defendant may be limited in showing causation or developing a defense of cоntributory negligence or assumption of risk. As a practical problem a criminal defendant’s testimony is somewhat diluted when weighed against that of the victim. Great constitutional problеms develop if the amount of reparations is an amount larger than the defendant can pay. When this occurs, and the defendant is later incarcerated for his failure to рay, we have what may be an imprisonment for debt problem. Further complications develop if the victim later brings a civil action against the criminal defendant for damages аrising out of the criminal act. Should the amount paid in the criminal court as a condition of probation be deducted from the civil judgment? If the civil judgment is less than the reparations ordered in the criminal case, must the amount of the criminal reparations be adjusted to conform to the amount of the civil judgment?
An order requiring payment of reparations should be within the means of the convicted person. This is to be inferred from
Shenah v. Henderson,
supra; see also, Annot.
Under the authority of
Shenah
we conclude that reparations are not necessarily confined to “liquidated,” “special,” or “easily measurable” damages. See
State v. Gunderson,
Appellant also suggests that restitution or reparations cannot exceed the amount hе could have been fined for the offense, in this case $2,000 under ARS § 13-245. A fine is a penal exaction payable to the public treasury and is generically distinct from restitution or reparations fixed as a condition of probation. State v. Gunderson, supra. 1
In regard to procedure, we think the following statement from
People v. Gallagher,
It seems desirable to have the defendant and his lawyer participate in the restitution decision. The matter might be discussed at the time of a plea of guilty. The recommended amount of restitution or reparation and the manner of its payment should be included in the presentence report and disclosed. The court might tell the defendant at the time of conviction that if probation is granted, *582 restitution may be required, and suggest that he and his lawyer propose a plan for restitution to the presentence investigator. In any event, the court could invite comment from defendant about the restitution the court is сonsidering before it is imposed as a part of the sentence.
55 Mich.App. at 620 ,223 N.W.2d at 96 .
The record in this case shows that at the time of sentencing the trial judge notified appellant and his attorney thаt the judge was considering placing appellant on probation under certain terms and conditions. During this procedure the judge, while addressing the appellant stated:
I have prepared terms of probation. I would like you to sit down with your lawyer at counsel table and go over the terms and tell me whether you want probation on that basis. Go over each of those terms, one by one, until you fully understand them.
The appellant and his attorney retired to the trial table and discussed the terms of probation, returned to the bench and without objection proceeded with the sentencing, which included the term of probation which required the appellant to pay restitution to the victim in the sum of $6,000, payable at the rаte of $125 a month. It appears the judge considered appellant’s ability to pay when he ordered such payment from the $500 per month salary earned by appellant.
Aftеr a review of the transcript we cannot logically distinguish this case from
She-nah.
In both cases the trial court gave the appellant an opportunity to go over the proposed terms of probation. It was then the burden of the appellant “[T]o bring to the attention of the court any factors which might bear upon the reasonableness of any reparation order and any factors which might bear upon petitioner’s ability to make reparation.”
Shenah v. Henderson,
supra,
We find no abuse of discretion under the facts of this case.
Affirmed.
Notes
. The thirty-third Legislature has just enacted a revised criminal code to be effective October 1, 1978, which has a specific section 13-1003 dealing with this matter.