Opinion
Case No. 20000942-CA.
Filed October 12, 2001. (Not For Official Publication)
Appeal from the Seventh District, Moab Department, The Honorable Lyle R. Anderson.
William L. Schultz, Moab, for Appellant.
Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee.
Before Judges Bench, Billings, and Davis.
MEMORANDUM DECISION
Defendant appeals the trial court's restitution award of $7,350.80 to the Moab Valley Fire Protection District for fire equipment. Defendant asserted below, and renews his argument on appeal, that the amount does not constitute pecuniary damages as defined by Utah Code Ann. § 76-3-201(1)(c) (Supp. 2001) and interpreted by our supreme court in State v. Depaoli, 835 P.2d 162 (Utah 1992).
Section 76-3-201 provides that "[w]hen a person is convicted of criminal activity that has resulted in pecuniary damages, in addition to any other sentence it may impose, the court shall order that the defendant make restitution to victims of crime." Utah Code Ann. § 76-3-201(4)(a)(i). The statute defines victim as "any person whom the court determines has suffered pecuniary damages as a result of the defendant's criminal activities." Id. § 76-3-201(1)(e). The statutory definition of pecuniary damages is
all special damages, but not general damages, which a person could recover against the defendant in a civil action arising out of the facts or events constituting the defendant's criminal activities and includes the money equivalent of property taken, destroyed, broken, or otherwise harmed, and losses including earnings and medical expenses.
Id. § 76-3-201(1)(c).
In Depaoli, the supreme court vacated a restitution order requiring the defendant to reimburse the State for the expense of a victim's medical examination. 835 P.2d at 165. The court concluded that the expense did not qualify as pecuniary damage because it could not be recovered in a civil action against the defendant. See id. at 164. Central to the court's conclusion was the State's failure to "explain or suggest a legal basis or theory" on which it could recover the expenditure in a civil action against the defendant. Id.; accord State v. Garcia, 866 P.2d 5, 6 (Utah Ct.App. 1993).
Here, the State likewise failed to articulate a legal basis for restitution. During the restitution hearing, the trial court questioned whether the State could recover fire equipment expenses in a civil action against Defendant. In response, the State merely argued that it could recover the expenses just as it routinely recovers for equipment expenses in search and rescue operations. The State's response was inadequate because it failed to articulate a legal basis for recovery. "[B]ecause the State did not explain or advance any such theory or basis for recovery, . . . [it has] `not sustained pecuniary damages as defined by [section 76-3-201(1)(c)].'" Garcia, 866 P.2d at 6 (quoting Depaoli, 835 P.2d at 164). Inasmuch as the State failed to establish that the fire equipment expenses are pecuniary damages, the trial court erred in awarding restitution for them.
Accordingly, we vacate the restitution award and remand for a new award consistent with this decision.
WE CONCUR: Judith M. Billings, Judge James Z. Davis, Judge.