IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JOSEPH E. DUSTIN, Appellant.

No. 1 CA-CR 18-0399

Appeal from the Superior Court in Yavapai County

No. P1300CR201701095

The Honorable Patricia A. Trebesch, Judge, Retired

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Eric Knobloch

Counsel for Appellee

M. Alex Harris PC, Chino Valley

By M. Alex Harris

Counsel for Appellant

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.

FILED 8-27-2019
STATE v. DUSTIN

Opinion of the Court

2

B R O W N, Judge:

¶1 We address here whether the superior court lawfully 

imposed a “time payment fee” and a “criminal restitution order” at 

sentencing following Joseph E. Dustin’s conviction for unlawful flight from 

a pursuing law enforcement vehicle. We consider other issues Dustin raises 

in a separate memorandum decision. See Ariz. R. Sup. Ct. 111(a)(2), (h); 

Ariz. R. Crim. P. 31.19(f). For the following reasons, we affirm the court’s 

imposition of the time payment fee but vacate the criminal restitution order. 

BACKGROUND

¶2 The State charged Dustin with one count of unlawful flight 

from a pursuing law enforcement vehicle, a class 5 felony. After the jury 

returned a guilty verdict, the superior court sentenced Dustin to prison. 

The court imposed no fine authorized by A.R.S. ' 13-801, but it ordered 

Dustin to pay the following: a time payment fee of $20; a public defender

assessment fee of $25; a probation assessment (formerly known as a 

probation surcharge) of $20; a penalty assessment of $13; and a victim rights 

enforcement assessment of $2. The court then reduced the monetary 

obligations to a criminal restitution order (“CRO”). Dustin timely 

appealed. 

DISCUSSION

A. Time Payment Fee

¶3 Dustin argues the superior court erred by imposing a time 

payment fee because there was no corresponding penalty, fine or sanction

that triggered statutory authorization of the fee. See A.R.S. § 12-116. 

Because Dustin did not object at sentencing, we review for fundamental 

error. State v. McDonagh, 232 Ariz. 247, 248, ¶ 7 (App. 2013). If the time 

payment fee was not authorized by statute, it constitutes an illegal sentence,

and the court fundamentally erred in imposing it. Id. at 248–49 (concluding 

that imposing “an unauthorized fine renders a criminal sentence illegal,”

which “constitutes fundamental error”).

¶4 We review the interpretation of statutes de novo. State v. 

Francis, 243 Ariz. 434, 435, ¶ 6 (2018). “When the statutory language is clear 

and has only one reasonable construction, we apply it according to its plain 

meaning.” Id. We construe related statutes together, “seeking to give 

meaning to all provisions.” Id.
STATE v. DUSTIN

Opinion of the Court

3

¶5 Our legislature has mandated that trial courts impose a time 

payment fee under the following circumstances:

In addition to any other assessment authorized by law, a fee of 

twenty dollars shall be assessed on each person who pays a court 

ordered penalty, fine or sanction on a time payment basis, 

including parking penalties, restitution and juvenile 

monetary assessments. A time payment basis shall be any 

penalty, fine or sanction not paid in full on the date the court 

imposed the fine, penalty or sanction. Notwithstanding any 

other law, the time payment fee shall be collected first after 

restitution. A judge may not waive or suspend a time 

payment fee.

A.R.S. § 12-116(A) (emphasis added). This case does not involve a parking 

penalty, restitution or juvenile monetary assessment. Instead, the propriety 

of the time payment fee turns solely on whether any of the following fees 

the court imposed constitutes a “penalty, fine or sanction”: the public 

defender assessment fee, the probation assessment, the penalty assessment 

or the victim rights enforcement assessment. Unless the superior court 

imposed a specific stand-alone penalty, fine or sanction that Dustin did not 

pay on the date of sentencing, the time payment fee was improper.

¶6 In State v. Connolly, 216 Ariz. 132, 132–33, ¶ 3 (App. 2007), we 

held that an “indigent assessment fee” is not a penalty, fine or sanction that 

can be the basis for imposing a time payment fee. The current version of 

the statute at issue in Connolly is A.R.S. § 11-584(C)(1), which authorizes 

imposition of the indigent administrative assessment fee on defendants 

who receive appointed counsel. The assessment is collected and paid to the 

county “for the cost of the person’s legal services.” See A.R.S. § 11-584(C)(3); 

see also Connolly, 216 Ariz. at 132, ¶ 3 (assessment “imposed to reimburse 

the county for costs of legal services”). The sentencing order here described

the fee as a “Public Defender Assessment Fee [Indigent Assessment Fee].” 

We discern no meaningful distinction between the indigent fee at issue in 

Connolly and the public defender assessment fee imposed in this case; thus, 

the time payment fee cannot be justified on that basis. 

¶7 The statute authorizing the $20 probation assessment states as 

follows: 

Except as provided in § 12-269(C) [(authorizing a different 

probation assessment for counties having a population 

greater than two million)], in addition to any other penalty, 
STATE v. DUSTIN

Opinion of the Court

4

fine, fee, surcharge or assessment authorized by law, a person 

shall pay an assessment of twenty dollars on conviction of a criminal 

offense or a finding of responsibility for a civil traffic violation, 

for a violation of any local ordinance relating to the stopping, 

standing, or operation of a vehicle, except parking violations, 

or for a violation of the game and fish statutes in title 17.

A.R.S. § 12-114.01(A) (emphasis added).

1 

¶8 We have described a “fine” as “a pecuniary form of 

punishment or sum of money exacted from a person guilty of an offense.” 

State v. Sheaves, 155 Ariz. 538, 541 (App. 1987). Put another way, “[a] fine is 

a criminal penalty that constitutes a sentence,” State v. Marquez-Sosa, 161 

Ariz. 500, 503 (App. 1989), and is “imposed upon the defendant after a 

judgment of guilty,” State v. Payne, 223 Ariz. 555, 565, ¶ 31 (App. 2009) 

(citation and quotations omitted). 

¶9 In determining whether an assessment is a fine, we consider

the following factors: “(1) when the assessment could be recovered; (2) to 

whom the assessment was paid; and (3) any other indications suggesting 

the assessment was a fine rather than restitution or civil penalty.” Payne, 

223 Ariz. at 565, ¶ 33; see Sheaves, 155 Ariz. at 541–42. In Sheaves, we

addressed whether a “felony penalty assessment” constituted a fine and, 

therefore, a sentence for double punishment purposes. 155 Ariz. at 541. The 

authorizing statute stated, in relevant part:

A. In addition to any other fine or assessment, each person 

convicted of a felony shall be assessed a penalty of:

1. One hundred dollars if the person is an individual

. . .

B. Monies received pursuant to this section shall be 

transferred to the victim compensation fund . . . .

 

1 The legislature amended § 12-114.01, effective Jan. 1, 2019. See 2018 

Ariz. Sess. Laws Ch. 237, § 1 (53d Leg., 2d Reg. Sess.). Because the 

amendment did not materially change the statute as it applies here, we cite 

the current version of the statute.
STATE v. DUSTIN

Opinion of the Court

5

A.R.S. § 13-812 (1986), repealed by 1993 Ariz. Sess. Laws, ch. 243, § 18 (1st

Reg. Sess.). Applying the three factors, we concluded that the felony 

assessment imposed pursuant to § 13-812 was a fine:

First, the felony penalty is a form of pecuniary punishment 

imposed by sentencing courts upon each person convicted of 

a felony. Second, the monies recovered under the statute go 

to the people of the State of Arizona by way of a legislatively 

created fund—the victim compensation fund. Finally, there 

is no indication that the felony penalty assessment is a civil 

penalty or restitution.

Sheaves, 155 Ariz. at 541–42. The Sheaves court also noted that although the 

victim compensation fund was intended to compensate crime victims, the 

felony penalty assessment was required to be imposed on any defendant 

convicted of a felony offense, without regard to whether the offense 

involved an identifiable victim. Id. at 541. As a result, “the manner in which 

[the assessment] is imposed . . . comports with the definition of ‘fine.’” Id.; 

see also Payne, 223 Ariz. at 564–65, ¶¶ 31–34 (applying Sheaves and 

concluding a “prosecution fee” imposed on every convicted defendant 

constituted a fine, not a “remedial or compensatory assessment or fee[]”).

¶10 Using the same analysis, the probation assessment imposed 

here is likewise a fine. First, as relevant here, the probation assessment is 

imposed at the time of sentencing and only upon a defendant who has been 

convicted of a criminal offense. A.R.S. § 12-114.01(A) (“[I]n addition to any 

other penalty, fine, fee, surcharge or assessment authorized by law, a 

person shall pay an assessment of twenty dollars on conviction for a 

criminal offense.”). Second, the collected monies are deposited in a 

legislatively created account, the “judicial collection enhancement fund.”

A.R.S. § 12-114.01(B); see A.R.S. § 12-113 (establishing the judicial collection 

enhancement fund). Third, § 12-114.01(A) does not indicate that the 

probation assessment is a civil penalty (as contemplated in Sheaves) or 

restitution. Nor, unlike the indigent assessment fee at issue in Connolly, is 

the probation assessment tied to the particular defendant’s use of public 

services or other circumstances that may vary from one case to another. See

Connolly, 216 Ariz. at 132, ¶ 3. Though the probation assessment may have 

other ramifications in the civil context, here, “it effectively penalizes those 

defendants convicted of a [crime] after trial and thus essentially constitutes 

a fine.” Payne, 233 Ariz. at 565, ¶ 34. 

¶11 For these reasons, we hold that a probation assessment 

imposed under § 12-114.01 constitutes a fine that allows imposition of the 
STATE v. DUSTIN

Opinion of the Court

6

$20 time payment fee. Given this holding, we need not address whether 

the probation assessment also constitutes a penalty or sanction within the 

meaning of § 12-116(A). Nor do we consider whether a probation 

assessment imposed under § 12-114.01 in a non-criminal proceeding 

constitutes a penalty, fine or sanction. 

¶12 The State argues the time payment fee also was proper based 

on the $13 penalty assessment. According to the plain language of A.R.S. 

§ 12-116.04, however, the penalty assessment mandated by that statute is 

not a stand-alone obligation—it requires that some other fine, penalty or 

forfeiture be imposed as a predicate, similar to the requirements of the time 

payment fee. See A.R.S. § 12-116.04(A) (“In addition to any other penalty 

assessment provided by law, a penalty assessment shall be levied in an 

amount of thirteen dollars on every fine, penalty and forfeiture imposed and 

collected by the courts for criminal offenses.”) (emphasis added). As we 

have held, the probation assessment the court imposed on Dustin was a 

“fine.” Having imposed a fine on Dustin when it imposed the probation 

assessment, the court also properly imposed the “penalty assessment.” The 

same is true with the $2 victim rights enforcement assessment under A.R.S. 

§ 12-116.09, which also requires a predicate fine, penalty or forfeiture. 

B. Criminal Restitution Order

¶13 At sentencing, the superior court ordered that Dustin’s “fines 

and fees be reduced to a criminal restitution order.” Dustin argues the 

imposition of the CRO is fundamental, prejudicial error because he had not 

completed his sentence or absconded; nor was he placed on probation. The 

State concedes the error. Imposing a criminal restitution order that 

encompasses fees and assessments before the sentence expires or the 

defendant absconds is an illegal sentence constituting fundamental, 

reversible error. State v. Cota, 234 Ariz. 180, 184–85, ¶ 15 (App. 2014); State 

v. Lopez, 231 Ariz. 561, 562, ¶ 2 (App. 2013); see also A.R.S. § 13-805(B), (C)(1). 

Accepting the State’s concession of error, we vacate the CRO.
STATE v. DUSTIN

Opinion of the Court

7

CONCLUSION

¶14 Dustin’s conviction is affirmed; his sentence is affirmed as 

modified.