concurring in part; dissenting in part,
I agree for the most part with the majority’s analysis of the constitutionality of adding a surcharge to bail. I disagree with their conclusion, however, that we do not have a sufficient record upon which relief could be granted. Because I would grant the relief Malone seeks, I dissent in part.
Although the statute can be defended against unconstitutionality, its procedure for computing bail by including a surcharge within reasonable bail is troublesome and awkward. Instead of requiring that 40% of forfeited bail goes to the criminal justice enhancement fund, the statute apparently requires judges to pick an amount such that this amount plus J0% of this amount equals a sufficient reasonable bail. The portion of the surcharge included in any bail under former A.R.S. section 41-2403 is f (two-sevenths) of the total bail.4 When any court sets bail under section 41-2403, any of the following is possible: 1) the court sets a reasonable bail amount and adds the assessment, 2) the court determines bail and then computes what amount of the.bail figure is the assessment, or 3) the court simply sets a reasonable bail which includes the surcharge within it.
The first possibility is unconstitutional and inconsistent with the intent of the statute. Any surcharge added to the sufficient amount of bail results in excessive bail.
The second possibility is constitutional but can be awkward. While I do not question the mathematical abilities of the Arizona judiciary, or alternatively, the availability of calculators on the bench, if one adopts the statute’s logic, the courts must determine some amount of money such that 140% of that amount totals the amount of reasonable bail.5 6
The third possibility is both constitutional and requires no mathematics on the part of the court. Under this approach the court simply sets bail without figuring surcharges or assessments. Later, if the bail is forfeited, the amount that goes to the criminal enhancement fund can be determined.7 This practice would avoid ambiguity about whether the court added or included the surcharge into the bail amount.
*227As to Malone’s bail in the present ease, if the amount necessary to secure his presence in court was $140,000, that assessment would be constitutional. If that amount was $100,-000 plus a $40,000 surcharge, however, that surcharge would be unconstitutional because it would constitute excessive bail. Whether the assessment is included in or added to bail is the difference between whether a court’s application of section 41-2403 is constitutional or unconstitutional.
While the juvenile judge’s oral pronouncement can be interpreted two ways, the more obvious interpretation is that his language first sets “bond” and then adds to that amount (“plus”) a 40% surcharge. I conclude that this reading is more plausible than that the trial court determined that a reasonable bail amount was $140,000. Accordingly, the trial judge’s language “bond is set in the amount of $100,000 plus $40,000 in surcharges” constitutes an unconstitutional application of a surcharge onto a reasonable bail. I would reduce Malone’s bail to $100,-000, the maximum constitutionally allowed.
. Under the new bail forfeiture provisions of A.R.S. §§ 12-116.01 and 12-116.02, the assessment percentages are now 46% and 11% respectively. Assuming the assessments are both included in bail, 46/157 (forty-six one hundred fifty-sevenths) goes to the criminal justice enhancement fund under § 12-116.01 and 11/157 (eleven one hundred fifty-sevenths) goes to the medical services enhancement fund under § 12— 116.02.
. Consider the following table:
Amount "X” so that: (40% of X) =
Bail X plus (40% of X) = bail the assessment
$ 500 $ 357.14 $ 142.86
1000 714.29 285.71
5000 3571.43 1428.57
10000 7142.86 2857.14
50000 35714.29 14285.71
100000 71428.57 28571.43
140000 100000.00 40000.00
. A.R.S. §§ 12-116.01 and 12-116.02 which contain the bail bond forfeiture provisions effective January 1, 1994, have each added a section (C) which reads, "[Ajfter addition of the penalty assessment, the courts may round the total amount due to the nearest one-quarter dollar." (Emphasis added). While this statute is not relevant to this appeal and we do not address the constitutionality of this provision, the statutes' use of the word "addition” seems consistent with our second possibility of how judges are to apply the statute, or, alternatively, inconsistent with the language in section (B) of those statutes that the assessment is to be included within the amount of reasonable bail.
. One remedy to the mathematical awkwardness of the statute is the following: 1) The court simply sets a reasonable bail amount. 2) If the criminal defendant fails to appear, 2h (two-sevenths) of that bail amount is granted to the criminal justice enhancement fund. This way, the intent of the statute would be upheld without the impression that the surcharge was added as excessive bail.