OPINION
Kеnneth Douglas Lopez (“defendant”) appeals the manner in which the trial court ordered him to pay fines and costs of prosecution. Because we find that the order to pay 25% of defendant’s net income is a “specified installment” within the trial court’s statutory power, we partially affirm the trial court’s sentence. Because the trial court failed to make necessary specific findings as to imposition of “costs of prosecution,” we remand for further findings.
FACTS AND PROCEDURAL HISTORY
Pursuant to a plea agreement, defendant pled guilty to possession of marijuana having a weight between one and eight рounds. The plea agreement provided that sentencing was left to the judge’s discretion. On June 9, 1992, the trial court sentenced defendant to three years probation, including a ninety-day jail sentencе. In addition, the trial court ordered defendant to pay a fine of $2,400, $2,000 for “cost of prosecution,” a $100 victim’s compensation fund fee, and a $8 time payment fee. According to the presentеnce report, defendant’s self-reported income was $1,500 per month and his monthly expenses were $1,520.
The trial court ordered that defendant meet these monetary obligations by paying 25% of his net inсome to the probation department until the obligations were met. The court made this order a condition of probation. Defendant appeals the trial court’s order claiming both that thе order is imprecise and that the amount of payment is excessive.
DISCUSSION
A. Percentage as a Manner of Payment
Defendant claims that the trial court is required to set forth precise amounts of monthly payments for fines. Defendant relies on Ariz.Rеv.Stat.Ann. (“A.R.S.”) section 13-808(A) (Supp.1992) and
State v. O’Guin,
In
O’Guin,
“the trial court erred in not setting the precise amount and number of monthly payments by which [defendant’s] fine is to be paid.”
Section 13-808(A) doеs not require “precise amounts”; it requires that payment be made in “a specified period of time or in specific installments.” By ordering defendant to pay 25% of his net income, the trial court clеarly sets forth the necessary information for defendant to calculate his obligation. The difference between a trial
B. Necessity to Consider Ability to Pay Fine
Defendant also claims that the manner in which the fine was imposed does not adequately account for his ability to pay. He argues that A.R.S. section 13-804(D) requires the trial judge to consider his ability to pay when imposing a fine.
The statute defendant cites states in pertinent part: “After the court determines the amount of restitutiоn, the court shall specify the manner in which the restitution is to be paid. In deciding the manner in which the restitution is to be paid, the court shall consider the economic circumstances of the defendant.” A.R.S. § 13-804(D) (emphasis added). Defendant argues that this statute should apply, not only when considering the manner of payment of restitution, but also when considering the manner of payment of fines. Defendant admits that he can find no case law supporting this assertion. Neither can we. The statute, by its own terms, applies to restitution, not fines. Although restitution can be assessed as part of a fine, see A.R.S. § 13-804(A), the fines in the present case are not restitutionary. Section 13-804(D) does not apply.
Defendant cites
State v. Wise,
C. Necessity to Consider Ability to Pay Reimbursement
At the sentencing hearing, the trial court ordered defendant to pay $2,000 for “cost of prosecution.” The following is the discussion on this reimbursement at the sentencing hearing:
THE COURT: For cost of prosecution I’m going to add $2000 [to the fine]. I think if you had to go to go get an attorney of your own, you’re looking at 5- or $10,000. I think Coconino County is certainly entitled to cost of prosecution.
This language indicates that this imposition was, in fact, reimbursement for costs of providing legal services, not cost of prosecution. 2 Reimbursement to the court for рrovision of legal services will be upheld only after the trial court has made the necessary findings.
1. Authority for Reimbursement
Rule 6.7(d), Arizona Rules of Criminal Procedure, provides the trial court’s authority for reimbursement for provision of legal services. Rule 6.7(d) provides that:
If in determining that a person is indigent under Rule 6.4(a), the court finds that such person has financial resources which enable him to offset in part thecosts of the legal services to he provided, the court shall order him to pay the appointed attorney or the county, through the clerk of the court, such amount as it finds he is able to pay without incurring substantial hardship tо him or his family.
The Arizona Supreme Court upheld this rule in
State v. Miller,
The required contribution by the defendants is in accord with Rule 6.7(d) ... and with Fuller v. Oregon,417 U.S. 40 [94 S.Ct. 2116 ,40 L.Ed.2d 642 ] (1974).... Like the Oregon statute before the United States Supreme Court, our rule insures that only those whom the court finds to have the requisite financial resources to offset the costs of legal services become obligated. The obligation cannot be incurred if it would mean “substantial hardship” to the defendant or his family.
Id.
at 558-59,
At the sentencing hearing the trial court simply ordered that defendant reimburse the county. No finding was made, as is required, that the defendant in fact has the financial resources to offset thе costs of legal services, nor what actual costs were incurred by the county in rendering the services.
2. Trial Court Failed to Make Any Findings
The trial court did not make a factual finding as to either defendant’s ability to pay or to the impact that this imposition would have on him. In its minute entry, the trial court noted that “[i]f the Defendant is obligated to pay this sum, it will probably be a hardship, with the Court feeling that it is a hardship that must be endured until everything has been paid in the case.” This comment is contrary to the type of finding necessary to justify requiring reimbursement for provision of legal services.
The trial court also noted at the sentencing heаring that it based its fine on a rough guess of what a privately-retained attorney would charge. According to Keswick, the trial court must make a finding as to the actual costs of providing legal services. The trial сourt failed to do so.
3. Failure to Make Findings Would Constitute Fundamental Error
The right to counsel is a fundamental right under the United States and Arizona Constitution.
See
U.S. Const. amend. VI; Ariz. Const. art. 2, § 24;
Espinoza v. Superior Court,
Although defendant does not expressly argue Rule 6.7(d), he cites Oehlerking in connection with his claim that the trial court’s failure to consider defendant’s ability to pay violated A.R.S. section 13-804(D). Defendant never cites Rule 6.7(d) or any constitutiоnal concerns stemming from the omission. Nevertheless, under A.R.S. section 13-4035, this court has jurisdiction to raise issues concerning possible fundamental errors sua sponte and we do so in this case.
Because we find that requiring a fine to be paid by ordering a defendant to remit 25% of his net income is a “specified installment,” we affirm the trial court in part. Because we find that the trial court failed to make necessary factual findings before requiring reimbursement for provision of legal services, we remand for these findings as to defendant’s ability to pay for those legal services or further clarification.