State v. Laycock

2009 UT 53
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20070503
Petitioner,
v.
Claudia Laycock, Judge, Fourth
Judicial District Court,
Utah County, State of Utah,
Respondent,
F I L E D
Trenton Jones,
Real Party in Interest. 	August 4, 2009
---
Fourth District, Provo Dep’t
The Honorable Claudia Laycock
No. 041401835
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Brett J. Delporto,
Asst. Att’y Gen., Salt Lake City, Jason Sant, Provo,
for petitioner
Brent M. Johnson, Salt Lake City, for respondent
Michael D. Esplin, Provo, for real party in interest
---
On Certification from the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 	In this case, we agreed to consider a petition for
extraordinary writ filed by the State challenging a restitution
ruling made by Judge Claudia Laycock in the Fourth District
Court. 	Judge Laycock ordered Trenton Jones to pay approximately
$3000 in restitution but declined to order Mr. Jones to pay
almost $600,000 for lost wages that had been sought by the State.
The State argues that Judge Laycock’s ruling was at odds with the
provisions of Utah Code sections 77-38a-101 through -601, Utah’s
Crime Victims Restitution Act. 	We hold that Judge Laycock erred
when she did not determine complete restitution as required by
the Act, but her order for court-ordered restitution was lawful.

No. 20070503 	2
We therefore grant the State’s application for extraordinary
relief for the limited purpose of instructing Judge Laycock to
determine complete restitution.
BACKGROUND
¶2 	Mr. Jones was involved in an automobile accident with
Larry Beach. 	We know little about the accident and rely on Judge
Laycock’s Findings of Fact, which were not challenged, to shed
some light on the incident.
¶3 	On an early February morning in 2004, Mr. Jones was
driving east on state road 73 when he fell asleep. 	Mr. Jones’s
vehicle swerved into the westbound lane and struck Mr. Beach’s
vehicle head-on. 	Mr. Beach was pronounced dead at the scene of
the accident. 	Mr. Jones was originally charged with automobile
homicide, but he later pled guilty to negligent homicide as
described in Utah Code section 76-5-206 (2008). 	Mr. Jones was
sentenced in October 2004 to 365 days in jail, a fine, and
community service. 	The court reserved the issue of restitution
for a future date.
¶4 	In April 2007, the district court ruled on restitution.
Judge Claudia Laycock awarded $3355.68 in restitution for medical
and funeral expenses and the cost of damage to Mr. Beach’s car.
Judge Laycock denied the State’s restitution request that Mr.
Jones be ordered to pay $572,769.60 for Mr. Beach’s lost future
wages.
¶5 	Concurrently with the criminal proceedings, Corrine
Beach, Mr. Beach’s widow, filed a civil action against Mr. Jones
for wrongful death. 	Mr. Jones and Mrs. Beach later settled the
civil lawsuit. 	As part of the settlement, Mrs. Beach executed a
Release of All Claims that released Mr. Jones from any past,
present, or future claims.
¶6 	The State challenges Judge Laycock’s ruling, claiming
that the judge abused her discretion. 	It filed a petition for
extraordinary writ pursuant to rule 65B(d) of the Utah Rules of
Civil Procedure and rule 19 of the Utah Rules of Appellate
Procedure. 	“The State seeks an order directing Judge Laycock to
hold an evidentiary hearing, determine complete restitution, and
order defendant to pay restitution, including lost future wages,
and otherwise comply with the requirements of State law.” 	Prior
to oral arguments, Mr. Jones, as the real party in interest,
filed a suggestion of mootness based on Mrs. Beach’s settlement
of her civil suit. 	The court of appeals certified the appeal to

3 	No. 20070503
us, and we have jurisdiction pursuant to Utah Code section 78A-3-
102(3)(b).
STANDARD OF REVIEW
¶7 	By filing a petition for extraordinary writ pursuant to
rule 65B(d) of the Utah Rules of Civil Procedure, the State
recognizes that it “has no right to receive a remedy that
corrects a lower court’s mishandling of a particular case.”
State v. Barrett, 2005 UT 88, ¶ 23, 127 P.3d 682. 	Because the
State has no right to appeal restitution judgments by a district
court, it must file a petition under rule 65B. 	See Utah Code
Ann. § 77-18a-1(3) (2008) (limiting the State’s right of appeal
to those instances expressly provided in that statute); see also
State v. Kelbach, 569 P.2d 1100, 1102 (Utah 1977) (“[T]he state
has no right to appeal except as expressly provided in the . . .
statute.”). 	Pursuant to rule 65B, a party with “no other plain,
speedy and adequate remedy” available to it, may petition for
extraordinary relief upon any of the grounds listed in that rule.
Utah R. Civ. P. 65B(a). 	The State has based its petition upon
subsection (d)(2), which states, “Appropriate relief may be
granted: 	(A) where an inferior court, administrative agency, or
officer exercising judicial functions has exceeded its
jurisdiction or abused its discretion.” 	Id. at 65B(d)(2).
Specifically, the State has asked us to address whether Judge
Laycock abused her discretion when she made her restitution
determination and ruling.
¶8 	Relief under rule 65B(d)(2) is completely at the
discretion of the reviewing court. 	In particular, the rule
provides that “relief may be granted . . . where an inferior
court . . . abused its discretion.” 	Id. (emphasis added). 	In
Barrett, we acknowledged the difficulty a party faces in
obtaining such relief when we stated that “a party petitioning
for rule 65B(d) extraordinary relief is not entitled to receive
relief, even if that party successfully establishes that a lower
court abused its discretion.” 	2005 UT 88, ¶ 23. 	In other words,
a party may prove that a district court abused its discretion and
still not be entitled to relief.
¶9 	In Barrett, we clarified the considerations a court
must take into account when reviewing a petition for
extraordinary relief. 	We stated that a court will consider
multiple factors, including the “egregiousness of the alleged
error, the significance of the legal issue presented by the
petition, the severity of the consequences occasioned by the
alleged error,” and any additional factors that may be regarded
as important to the case’s outcome. 	Id. ¶ 24.

No. 20070503 	4
¶10 	Additionally, in the case of restitution, a reviewing
court will not disturb a district court’s determination unless
the court exceeds the authority prescribed by law or abuses its
discretion. 	State v. Twitchell, 832 P.2d 866, 868-69 (Utah Ct.
App. 1992). 	With the appropriate standard of review set forth,
we turn now to the merits of the case.
DISCUSSION
¶11 	We begin our analysis by taking up the issue of
mootness raised by Mr. Jones. 	We will then turn to the State’s
petition for extraordinary relief in which it asked us to address
three issues. 	These are the following: 	(1) Did the district
court abuse its discretion in failing to properly determine
complete and court-ordered restitution as required by law?
(2) Did the district court abuse its discretion in assuming that
comparative negligence principles would apply in determining
restitution and that there was evidence that the defendant was
not solely at fault in the fatal accident? and (3) Did the
district court abuse its discretion in declining to compensate
the widow and children of Mr. Beach for their loss of the income
he would have earned if he had not been killed in the accident?
In asking us to address these issues, the State is seeking, as
its ultimate judicial relief, that we order Judge Laycock to
redetermine restitution and order Mr. Jones to pay $572,769.60 in
restitution for Mr. Beach’s lost wages. 	We begin first with the
issue of mootness.
I. 	THIS CASE IS NOT MOOT BECAUSE THE CONTROVERSY BETWEEN THE
PARTIES HAS NOT ENDED AND THE PURPOSES OF RESTITUTION HAVE NOT
BEEN FULFILLED
¶12 	Mr. Jones argues that the issue of restitution is moot
because Mrs. Beach has settled her civil suit against Mr. Jones.
“An appeal is moot if during the pendency of the appeal
circumstances change so that the controversy is eliminated,
thereby rendering the relief requested impossible or of no legal
effect.” 	Baker v. Stevens, 2005 UT 32, ¶ 9, 114 P.3d 580
(internal quotation marks omitted). 	The underlying issue that is
raised by the suggestion of mootness is whether a civil
settlement between a defendant and a victim, which includes a
release of all claims by the victim, may bar a district court
from imposing restitution in a criminal action involving the same
incident. 	This is an issue of first impression.
¶13 	Mr. Jones first argues that the controversy between the
parties has ended and that the purposes of restitution have been

5 	No. 20070503
fulfilled. 	As a result, Mr. Jones concludes that there are no
claims of damages for the district court to adjudicate. 	We will
address each of Mr. Jones’s arguments in turn.
¶14 	First, Mr. Jones argues that the controversy between
himself and Mrs. Beach ended when Mrs. Beach signed the Release
of All Claims. 	By signing the release, Mrs. Beach released Mr.
Jones and his insurance company “from any and all past, present,
or future claims and demands” relating to the death of Mr. Beach.
The release effectively extinguished all of Mrs. Beach’s claims
against Mr. Jones. 	Mr. Jones argues that because there are no
further claims against him by Mrs. Beach, there is no further
controversy between the parties.
¶15 	Mr. Jones misapprehends the operation of the release in
the context of Utah’s restitution scheme. 	We agree that the
release ended the controversy between Mr. Jones and Mrs. Beach.
Mrs. Beach is, however, not a party to the petition before us.
The parties involved in the case on appeal are the State of Utah
and Mr. Jones. 	Thus, by resolving her claims against Mr. Jones,
Mrs. Beach did not affect the criminal proceedings between the
State and Mr. Jones. 	We agree with the Florida Supreme Court’s
statement on this matter.
“While a settlement agreement with, and
release of, a defendant’s insurance company
may reflect a victim’s willingness to accept
the amount paid in full satisfaction for all
civil liability, it does not reflect the
willingness of the People to accept that sum
in satisfaction of the defendant’s
rehabilitative and deterrent debt to society.
A restitution order pursuant to a defendant’s
plea is an agreement between the defendant
and the state. 	The victim is not party to
the agreement, and a release by the victim
cannot act to release a defendant from his
financial debt to the state any more than it
could terminate his prison sentence.”
Kirby v. State, 863 So. 2d 238, 243 (Fla. 2003) (quoting People
v. Bernal, 123 Cal. Rptr. 2d 622, 627 (Cal. Ct. App. 2002)). 	It
is a well-established principle in other jurisdictions that a
civil settlement releasing a defendant from liability does not
foreclose the State from seeking restitution in a criminal case.
See State v. Iniguez, 821 P.2d 194, 197 (Ariz. Ct. App. 1991)
(“[T]he distinction between civil damages and restitution means
that the victim’s release of civil liability does not prevent the

1 We recognize that we have stated that “restitution is not
(continued...)
No. 20070503 	6
state from ordering the criminal law remedy of restitution.”
(emphasis omitted)); People v. Maxich, 971 P.2d 268, 270 (Colo.
Ct. App. 1998) (“[A] release from liability obtained in a civil
settlement cannot limit a criminal court’s authority to order
restitution equivalent to actual pecuniary damages.”); State v.
Applegate, 976 P.2d 936, 938 (Kan. 1999) (holding that because
the state was not a party to a settlement agreement, “[a] civil
release of claims does not and cannot specifically preclude
court-ordered restitution in a criminal case”); State v. Belfry,
416 N.W.2d 811, 813 (Minn. Ct. App. 1987) (holding that even
though the victim has settled a civil claim and signed a release,
“the state is not barred from seeking, or the court from
imposing, reasonable restitution”); Urias v. State, 987 S.W.2d
613, 614 (Tex. App. 1999) (“[T]he settlement on behalf of the
injured party with the insurance company was not a bar to the
trial court ordering restitution . . . .”).
¶16 	The controversy between the parties to the petition
before us did not end with the settlement of the civil action.
The State is a party only to the criminal case, which has not yet
been fully resolved. 	Because the controversy between the parties
to this petition has not yet ended, the case is not moot.
¶17 	Mr. Jones also argues that the case is moot because the
purpose for restitution has been fulfilled by the release.
According to Mr. Jones, the purpose of restitution is to
compensate the victim for all pecuniary damages caused by the
defendant. 	For support of this proposition, he looks to section
77-38a-102(11), which states that “‘[r]estitution’ means full,
partial, or nominal payment for pecuniary damages to a victim
. . . .” 	Utah Code Ann. § 77-38a-102(11) (2008).
¶18 	We note, however, that the fact that restitution may
compensate a victim for his loss does not mean that, from the
defendant’s or the State’s perspective, the only purpose for
restitution is to pay a debt to the victim. 	Instead, as we noted
above, restitution is mandated by statute and is a part of a
criminal sanction imposed by the State. 	Thus, unlike an award of
civil damages, which is the product of an orderly method of
resolving a dispute between a victim and a defendant, an award of
restitution has a two-fold purpose. 	One purpose is to compensate
the victim for pecuniary damages. 	The other purpose, as a part
of a criminal sanction, is to rehabilitate and deter the
defendant, and others, from future illegal behavior. 	See Kirby,
863 So. 2d at 242. 1 	We agree with the Florida Supreme Court’s

1 (...continued)
a ‘punishment’ but a civil penalty whose purpose is entirely
remedial.” 	Monson v. Carver, 928 P.2d 1017, 1027 (Utah 1996).
The restitution ordered in Monson is distinguishable from the
case before us. 	In Monson, the Board of Pardons and Parole
ordered the defendant to pay restitution as an alternative to a
maximum life term. 	Id. at 1026. 	Monson argued that this order
violated double jeopardy. 	Id. 	We disagreed and held that when
restitution is ordered by the Board, it is not punishment but a
civil penalty with only the remedial purpose of compensating the
victim. 	Id. at 1027. 	In this case, restitution was ordered by a
judge as part of a criminal sentence. 	Furthermore,
rehabilitation and deterrence are not inconsistent with the
statement in Monson that restitution is entirely remedial.
7 	No. 20070503
statement that “while the victim’s wishes concerning restitution
are relevant, they are not dispositive--it is the judge, not the
victim, who must weigh society’s competing needs.” 	Id. at 243
(alteration omitted) (internal quotation marks omitted). 	The
Kirby court elaborated on restitution’s noncompensatory role by
stating,
“Restitution is an effective rehabilitative
penalty because it forces the defendant to
confront, in concrete terms, the harm his
actions have caused. 	Such a penalty will
affect the defendant differently than a
traditional fine, paid to the State as an
abstract and impersonal entity, and often
calculated without regard to the harm the
defendant has caused. 	Similarly, the direct
relation between the harm and the punishment
gives restitution a more precise deterrent
effect than a traditional fine.”
Id. (quoting Bernal, 123 Cal. Rptr. 2d at 627). 	Thus, despite
the civil settlement and release, if we were to grant the State’s
petition, Mr. Jones would still need to fulfill the
rehabilitative and deterrent purposes of restitution. 	We
therefore decline to grant Mr. Jones’s suggestion of mootness
because the controversy between the parties is not over and the
dual purposes of restitution have not been fulfilled. 	We turn
next to the issues raised by the State in its case against Judge
Laycock.
II. 	A COURT IS REQUIRED BY STATUTE TO CALCULATE COMPLETE
RESTITUTION, BUT HAS DISCRETION WHETHER TO IMPOSE COURT-ORDERED
RESTITUTION

No. 20070503 	8
¶19 	Having determined that this case is not moot, we turn
to the issues raised by the State in its petition for
extraordinary writ. 	We begin by exploring whether the district
court abused its discretion when it failed to determine complete
and court-ordered restitution as required by Utah Code section
77-38a-302. 	When examining a statute, we first look to its plain
language. 	Savage v. Utah Youth Vill., 2004 UT 102, ¶ 18, 104
P.3d 1242. 	Statutory language is presumed to reflect a
legislative process that “use[s] each word advisedly and give[s]
effect to each term according to its ordinary and accepted
meaning.” 	State v. Low, 2008 UT 58, ¶ 23, 192 P.3d 867 (internal
quotation marks omitted). 	“We read the plain language of the
statute as a whole[] and interpret its provisions in harmony with
other statutes in the same chapter and related chapters.” 	Miller
v. Weaver, 2003 UT 12, ¶ 17, 66 P.3d 592. 	“We [also] follow the
cardinal rule that the general purpose, intent or purport of the
whole act shall control, and that all the parts be interpreted as
subsidiary and harmonious to its manifest object.” 	Id. (internal
quotation marks omitted). 	We turn now to the statute at hand.
A. 	The District Court Erred in Not Determining Complete
Restitution
¶20 	Section 77-38a-302 establishes the criteria for
determining restitution. 	The State argues that the district
court abused its discretion by not determining complete
restitution. 	Section 77-38a-302(2) creates two categories of
restitution. 	This section states,
In determining restitution, the court shall
determine complete restitution and
court-ordered restitution.
(a) “Complete restitution” means
restitution necessary to compensate a
victim for all losses caused by the
defendant.
(b) “Court-ordered restitution” means
the restitution the court having
criminal jurisdiction orders the
defendant to pay as a part of the
criminal sentence at the time of
sentencing or within one year after
sentencing.
Utah Code Ann. § 77-38a-302(2)(a)-(b) (2008). 	The State argues
that the subsections require a district court to determine
complete restitution. 	It contends that Judge Laycock did not

9 	No. 20070503
comply with the statute when she made her restitution
determination because she did not include Mr. Beach’s lost wages
in her restitution order. 	We find the plain language of this
subsection to be a clear directive that district courts are to
make two separate restitution determinations, one for complete
restitution and a second for court-ordered restitution. 	In
making these determinations, a district court looks to section
77-38a-302(5) for the factors it must consider. 	Id. § 77-38a-
302(2)(c). 	In calculating complete restitution, subsection (5)
states,
(a) For the purpose of determining
restitution for an offense, the offense shall
include any criminal conduct admitted by the
defendant to the sentencing court or to which
the defendant agrees to pay restitution. 	A
victim of an offense that involves as an
element a scheme, a conspiracy, or a pattern
of criminal activity, includes any person
directly harmed by the defendant’s criminal
conduct in the course of the scheme,
conspiracy, or pattern.
(b) In determining the monetary sum and other
conditions for complete restitution, the
court shall consider all relevant facts,
including:
(i) the cost of the damage or loss if
the offense resulted in damage to or
loss or destruction of property of a
victim of the offense;
(ii) the cost of necessary medical and
related professional services and
devices relating to physical or mental
health care, including nonmedical care
and treatment rendered in accordance
with a method of healing recognized by
the law of the place of treatment;
(iii) the cost of necessary physical and
occupational therapy and rehabilitation;
(iv) the income lost by the victim as a
result of the offense if the offense
resulted in bodily injury to a victim;
(v) up to five days of the individual
victim’s determinable wages that are
lost due to theft of or damage to tools
or equipment items of a trade that were
owned by the victim and were essential

No. 20070503 	10
to the victim’s current employment at
the time of the offense; and
(vi) the cost of necessary funeral and
related services if the offense resulted
in the death of a victim.
Id. § 77-38a-302(5)(a)-(b). 	Court-ordered restitution may be
awarded only if the court complies with the mandate of subsection
77-38a-302(5)(c) which states,
In determining the monetary sum and other
conditions for court-ordered restitution, the
court shall consider the factors listed in
Subsections (5)(a) and (b) and:
(i) the financial resources of the
defendant and the burden that payment of
restitution will impose, with regard to
the other obligations of the defendant;
(ii) the ability of the defendant to pay
restitution on an installment basis or
on other conditions to be fixed by the
court;
(iii) the rehabilitative effect on the
defendant of the payment of restitution
and the method of payment; and
(iv) other circumstances which the court
determines may make restitution
inappropriate.
Id. § 77-38a-302(5)(c). 	Lost income is expressly enumerated as
an element of complete restitution. 	For the purposes of this
appeal it is critical to understand that while a court is
required to determine complete restitution, and to consider the
enumerated elements of loss, the statute does not require a court
to order the defendant to pay complete restitution.
¶21 	What the statute does not make clear, according to
Judge Laycock, is the definition of restitution. 	Section 77-38a-
102(11) defines restitution as the “full, partial, or nominal
payment for pecuniary damages to a victim.” 	Id. § 77-38a-
102(11). 	This definition does not make the distinctions and
definitional refinements, such as the distinction between
complete and court-ordered restitution, made elsewhere in the
statute. 	We do not read the two approaches to the definition of
restitution to inject substantive ambiguity into Utah’s
restitution scheme. 	Indeed, when read as a whole, the statute
unambiguously defines complete restitution as the full amount of
pecuniary damages necessary to compensate a victim for losses

2 We note that ambiguity infects the restitution statute’s
grant of discretion to trial courts. 	Section 77-38a-301 states
that “the court may require a convicted defendant to make
restitution” while section 77-38a-302(1) states that “the court
shall order that the defendant make restitution to victims.”
(Emphases added.) 	Additionally, section 77-38a-302(3) states,
“If the court determines that restitution is appropriate or
inappropriate under this part, the court shall make the reasons
for the decision part of the court record.” 	This provision
(continued...)
11 	No. 20070503
caused by a defendant based on the factors listed in section 77-
38a-302(5)(c).
¶22 	We recognize, as did Judge Laycock in her brief, that
the obligatory determination of complete restitution be reached
without the aid of facts sufficient to lawfully allocate fault or
support a damages award in a civil action. 	Indeed, in this case,
the facts relating to the collision that took the life of Mr.
Beach are scant, sufficient to support Mr. Jones’s guilty plea,
but otherwise unilluminating. 	Judge Laycock contends that making
a complete restitution determination without a strong foundation
of facts is inappropriate and is best left to a civil trial,
which is a better setting to perform this task. 	She observes
persuasively that the statute does not afford a defendant the
discovery opportunities, nor does it assign burdens of proof in
the same manner as a civil action. 	In particular, Judge Laycock
states that in civil litigation, a defendant can raise issues of
proximate cause and comparative negligence by using depositions
and interrogatories to gather relevant information. 	A criminal
restitution proceeding, on the other hand, does not provide these
safeguards.
¶23 	Judge Laycock is correct when she points out the
difficulty of ascertaining complete restitution based on
incomplete facts and speculation. 	The statute commands, however,
that complete restitution be determined. 	The statute even
requires a judge who has not received sufficient damages
information from a victim or prosecutor to nevertheless make a
complete restitution determination “based on the best information
available.” 	Id. § 77-38a-203(1)(c). 	Where facts do not provide
a full evidentiary foundation, the court must base its
determination on the best information available. 	Although the
court must determine complete restitution, it is not required to
order a defendant to pay complete restitution as part of the
criminal sentence. 	Id. § 77-38a-301 (“In a criminal action, the
court may require a convicted defendant to make restitution.”
(emphasis added)). 2 	A court’s “determination” of restitution is

2 (...continued)
unambiguously cedes to trial courts the discretion to either
award or to decline to make an award so long as the court
explains its reasoning on the record.
3 We recognize that there is an additional safety mechanism
in place to protect defendants when complete restitution based on
supposition or incomplete facts is made. 	Section 77-38a-403
prevents evidence of an order or payment of restitution from
being used as evidence in a civil proceeding. 	We would extend
this to determinations of complete restitution, especially in
cases where the evidentiary basis for such a determination would
not stand up in a civil trial.
No. 20070503 	12
different from ordering a defendant to pay restitution. 	After
determining complete restitution, a district court judge may then
order court-ordered restitution as part of the criminal sentence
based on facts that would meet the same strict requirements as
found in a civil setting. 3
¶24 	Here, Judge Laycock failed to make a determination of
complete restitution. 	This was error. 	She was clearly required
to determine complete restitution, as set out in Utah Code
section 78-38a-302(2).
B. 	Issues of Comparative Negligence May Apply to Determinations
of Restitution
¶25 	The State next argues that Judge Laycock erred by
assuming that comparative negligence principles might apply in
this case. 	The State contends that the district court should
have found as a matter of law that no allocation of fault should
be assigned to Mr. Beach. 	When Mr. Jones pled guilty to
negligent homicide, he did not admit that Mr. Beach was not
negligent.
¶26 	As noted above, the established facts in this case are
very limited. 	With such a limited foundation of facts, it would
be difficult for a court to assume anything. 	The State would
have us sit as a finder of fact and hold that Mr. Beach was not
negligent. 	We decline to do this. 	Judge Laycock did not assume
that Mr. Beach was at fault; rather, she determined that given
the scant facts known about the collision that appeared in the
record, she could assume that a fact-finder in a civil action
could assign a measure of fault to Mr. Beach. 	This was not
error.

4 We further note that section 78-38a-302(2)(a) defines
complete restitution as that “necessary to compensate a victim
for all losses caused by the defendant.” 	(Emphasis added.) 	A
trial judge cannot decline to consider evidence that a victim’s
losses were caused, not by a defendant, but by the victim’s own
negligence, or indeed the negligence of some other person in its
determination of complete restitution.
13 	No. 20070503
¶27 	With such a limited factual basis, it would be
difficult for a judge to make decisions about court-ordered
restitution based on assumptions. 	The better course of action,
as Judge Laycock decided, was to allow the facts to be
established in a civil litigation setting. 	Such a determination
was properly within her discretion. 	We therefore hold that
issues of comparative negligence may be relevant in determining
restitution, and Judge Laycock was right to recognize the limited
factual basis and to therefore refuse to impose court-ordered
restitution based on it. 4
C. 	The Victim Was Not Entitled to an Award of Restitution
Compensating Her for the Loss of Her Deceased Husband’s Future
Earnings
¶28 	As we discussed above, Judge Laycock abused her
discretion when she did not determine complete restitution.
Judge Laycock, however, was under no obligation to impose court-
ordered restitution in an amount equal to complete restitution.
Utah Code Ann. § 77-38a-301. 	Because the imposition of court-
ordered restitution is discretionary, Judge Laycock properly
exercised her discretion when she made her determination of
court-ordered restitution. 	In making her court-ordered
restitution determination, Judge Laycock followed the statutory
criteria of explaining her reasoning for not including lost
wages. 	See id. § 77-38a-302(3) (“If the court determines that
restitution is appropriate or inappropriate under this part, the
court shall make the reasons for the decision part of the court
record.”). 	Her conclusion that the facts were too limited to
justify court-ordered restitution for an array of damages
including lost wages was well within her discretion.
¶29 	We find this reasoning persuasive and within Judge
Laycock’s discretion. 	In analyzing the imposition of
restitution, the court of appeals stated, “Matters of negligence,
proximate cause and the amount of resulting damages are best left
to civil litigation. 	Restitution should be ordered only in cases
where liability is clear as a matter of law and where commission
of the crime clearly establishes causality of the injury or
damages.” 	State v. Robinson, 860 P.2d 979, 983 (Utah Ct. App.

No. 20070503 	14
1993). 	As Judge Laycock noted, there are procedural safeguards
available to a litigant in a civil setting that are unavailable
in a criminal restitution proceeding. 	When the facts of a case
are limited or unclear, the civil setting is the best place for
them to be determined.
¶30 	The State takes issue with an interpretation of the
restitution scheme that does not require Judge Laycock to order
Mr. Jones to pay complete restitution. 	Were we to adopt the
State’s interpretation, we would read “court-ordered restitution”
out of the statute. 	Court-ordered restitution may be identical
in amount to complete restitution, but it need not be so. 	Unlike
complete restitution, court-ordered restitution may be adjusted
to take the defendant’s ability to pay into account. 	Utah Code
Ann. § 77-38a-302(5)(c). 	The clear distinction between complete
and court-ordered restitution is complicated, however, by section
77-38a-401. 	Section 77-38a-401(1) mandates a court to enter a
civil judgment for the amount of complete restitution upon a
determination that a defendant owes restitution. 	This statutory
provision clashes with the complete restitution/court-ordered
restitution scheme and casts doubt over the viability of court-
ordered restitution.
¶31 	The internal contradictions within the restitution
scheme are not ripe for our review in this appeal. 	It is
appropriate for us to discuss several of them--even if we do not
decide them--because they will bear directly on the future
proceedings in this case. 	We have held in this appeal that Mrs.
Beach’s release of Mr. Jones from all civil claims did not moot
Mrs. Beach’s claims to restitution, nor did it excuse Judge
Laycock from her statutory obligation to determine complete
restitution. 	Our reasoning borrows from the Florida Supreme
Court, which stated,
While a settlement agreement with, and
release of, a defendant’s insurance company
may reflect a victim’s willingness to accept
the amount in full satisfaction for all civil
liability, it does not reflect the
willingness of the People to accept that sum
in satisfaction of the defendant’s
rehabilitative and deterrent debt to society.
Kirby v. State, 863 So. 2d 238, 243 (Fla. 2003) (internal
quotation marks omitted).
¶32 	Utah Code section 77-38a-401(2) requires courts to
reduce all determinations of complete restitution to civil

15 	No. 20070503
judgments “enforceable under the Utah Rules of Civil Procedure.”
Presumably, a court may use its contempt power as well as other
coercive measures to compel a defendant to pay court-ordered
restitution. 	Section 77-38a-401 restricts the authority of a
court or crime victim to the remedies available to a judgment
creditor. 	The apparent trade-off made by the legislature in
enacting the restitution scheme was to, on the one hand, expand
the authority of the courts to see to it that defendants pay
court-ordered restitution, as evidenced by sections 77-38a-501
and 77-38a-502, while permitting courts to fix court-ordered
restitution at an amount less than complete restitution by taking
into account the financial resources of the defendant and the
burden that payment of restitution will impose with regard to the
other obligations of the defendant, as evidenced by section 77-
38a-302(5)(c)(i).
¶33 	In the context of this case, once Judge Laycock
completes the task assigned to her on remand--to determine
complete restitution--that sum will be reduced to a civil
judgment, a judgment that may only be enforced through the Utah
Rules of Civil Procedure. 	At that point, a serious question will
arise over whether Mrs. Beach may execute on her judgment when
she has released Mr. Jones from all of her claims against him.
While this question is one we need not answer today, we likely
will be required to answer it someday. 	It would appear that
under our statutory scheme, the rationale we used to reject Mr.
Jones’ mootness claim may lose much of its persuasive force after
a civil judgment is entered.
¶34 	Because Judge Laycock provided adequate reasoning for
her court-ordered restitution determination, we do not find that
she abused her discretion. 	As such, we will not disturb her
order.
CONCLUSION
¶35 	In conclusion, we grant the State’s petition to the
extent that Judge Laycock failed to determine complete
restitution and therefore remand for the sole purpose of
ascertaining complete restitution. 	We do not, however, disturb
Judge Laycock’s ruling requiring Mr. Jones to pay court-ordered
restitution in the amount of $3355.68.
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¶36 	Associate Chief Justice Durrant, Justice Wilkins, and
Justice Parrish concur in Justice Nehring’s opinion.

No. 20070503 	16
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DURHAM, Chief Justice, concurring:
¶37 	I write separately to note a degree of uneasiness with
the statute’s treatment of lost income. 	The statute provides for
lost income if the offense results in “bodily injury,” and
funeral expenses if the offense results “in death.” 	Utah Code
Ann. § 77-38a-302(5)(b) (2008). 	The majority opinion assumes
that the legislature intended death to be subsumed in the “bodily
injury” category, and that assumption is probably correct. 	If it
is not, however, I hope the point will be clarified by the
legislature.
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