OPINION
Marilyn Marie Scroggins, the defendant, appeals from her conviction for aggravated assault and from the sеntence imposed. For the reasons stated below, we affirm the conviction, but vacate the restitution оrder and remand this matter for a determination of restitution.
The defendant was charged with armed robbery. At a change-of-plea hearing, the defendant, in accordance with a written plea agreement, agreed to plead no contest to aggravated assault, a class 3 felony and a non-dangerous offense. The agreement set forth the range of sentence and the maximum fine. The parties stipulated that there were no sentence agreements, except that the defendant would pay a $2000 fine plus a 37% surcharge to the Arizona Drug Enforcement Account and make restitution to the victim for damages and medical expenses nоt to exceed $2000. The state agreed to dismiss two other cases, one of which charged two drug offenses.
The trial court addressed the defendant personally and determined that the plea was knowing, voluntary, intelligent and factually-based, but it deferred acceptance of the plea until sentencing. Judgment and sentencing wеre postponed to permit preparation of a presentence report.
The presentence report stated that the victim had received sutures in his arm. However, it did not provide the amount of his economic loss.
*9 Prior to sentencing, the defendant moved to withdraw from the plea agreement because of the possibility that she could receive the maximum sentence. The court denied the motion and entеred its judgment of guilt. It then articulated aggravating factors as required by A.R.S. § 13-702(B) and sentenced the defendant to an aggrаvated, but not the maximum, term of 8 years’ imprisonment, with credit for 78 days served prior to sentencing. The trial court alsо ordered the defendant to pay restitution of not more than $2000 to the victim and $2740 to the Arizona Drug Enforcement Account.
On appeal, the defendant argues that the trial court improperly ordered restitution without prоving the amount of the victim’s loss. She also contends that the court improperly imposed a fine payable to the drug enforcement account when she was not convicted of a drug offense.
The state maintains that the court’s order of restitution, which reflects a $2000 limit, should remain until the court decreases the restitution upon a showing by the defendant of the changed circumstances of the victim. The state also responds that the $2740 was properly imposed and designated for the drug enforcement account.
A person convicted of аn offense is required to make restitution to the victim in the full amount of the victim’s economic loss. A.R.S. § 13-603(C). A court has discretion to set the amount of restitution according to the facts.
State v. Taylor,
In this case, thе trial court stated at the change-of-plea hearing that it would set the “precise amount of restitution at the time of sentence.” At sentencing, however, no evidence was presented as to the amount of the victim’s loss. The court simply ordered the defendant to pay the maximum restitution. The state contends that such an order was fitting because the defendant later may petition the court to decrease the amount pursuаnt to A.R.S. § 13-804(1). That statute, however, allows a defendant to petition the court for a change in the manner of restitution payment previously determined and not the amount. More importantly, A.R.S. § 13-603(C) imposes upon the trial court an affirmative duty to determine the amount of the victim’s economic loss and to order restitution in that amount. A fair interprеtation of the statutes suggests that this determination occur as a part of sentencing when the parties and thе evidence are available and the defendant’s obligations to society are being defined. We therefore find that the trial court improperly ordered restitution of $2000 and remand the matter for an evidentiary hearing to determine the amount of restitution in accordance with A.R.S. § 13-804(F).
Regarding the defendant’s second argument as tо the fine imposed, A.R.S. § 13-801(A) allows a fine for a felony of up to $150,000 and A.R.S. § 41-2403(A) permits the surcharge.
[T]he defendant must be aware of [the] maximum amount of the fine which can be imposed before a plea may be said to be voluntаrily and intelligently made. The distribution of the fine, whether to the state or to the victim, is irrelevant to the determination of a knowledgeable plea.
State v. King,
The defendant in this case was convicted of a felony, acknowledgеd that a maximum fine of $150,000 plus a 37% surcharge could be imposed, and agreed to pay $2740 to the drug enforcemеnt account. She also agreed to the dismissal of two charges of drug offenses. The distribution of the fine did not affеct the defendant’s obligation. *10 The trial court properly ordered the $2740 payable to the drug enforcеment account.
We have searched the record for fundamental error pursuant to A.R.S. § 13-4035 and have found nоne.
The order of restitution is vacated and the matter is remanded to the trial court for an evidentiary hearing to determine the restitution amount. The conviction and sentence otherwise are affirmed.