dissenting.
I have an uncomfortable feeling when this court amends an act of the legislature by opinion.
The restitution statute, by its plain terms, entitles a victim to a civil judgment if he desires to pursue the right granted in the statute. The legislature was careful to avoid making this procedure an exclusive remedy by providing in the last sentence that failure to pursue the remedy in the statute should not deprive the victim of his civil action for the injury sustained.
The authority of the trial court to order a defendant into court for the purpose of restitution or reparation in damages is strictly statutory. This statute provides that the defendant, if in custody, may be ordered into court. The statute does not have any provision, nor is there any authority bestowed upon the trial court, to order the defendant into court after he is released from custody in order to establish a payment schedule.
The reasons set out in the majority opinion to justify ordering the defendant into court after release from custody may be desirable, but there is no authority, express or implied, for the trial court’s action in this proceeding, and implying such authority effectively amends the statute.
This is a civil judgment and may be enforced according to well-established procedures. Established procedures and the statute do not provide for a coerced attendance in court in order for the court to establish a payment schedule. The trial court simply exceeded its authority in this order.
Accordingly, I dissent.
LEIBSON and VANCE, JJ., join in this dissent. . -