dissenting. The majority has reversed the restitution order in this case based on an issue never preserved by defendant, and raised for the first time on appeal. Defendant agreed to restitution as determined at a hearing. The hearing was held and evidence taken from the victim and a witness offered by the defendant. After the defendant submitted his evidence the court asked: “What’s the dispute here?” Defense counsel answered that the dispute was over the lost wages claimed by the victim because they were highly speculative and unliquidated. There was never a hint that the defendant claimed inability to pay the restitution amount of approximately $1800 sought by the victim.
The result here embodies a substantial waste of judicial resources. Defense counsel waited 30 days to say what he clearly could have said at the hearing — “I contest ability to pay!” The case has been briefed and argued in this Court at substantial expense to the citizens of Vermont. The victim remains without restitution for well over a year. All this to require the trial judge to do what he almost certainly would have done if he only were asked. This is an example of the very conduct that our plain error rule is designed to prevent. See State v. Campbell, 146 Vt. 25, 27, 497 A.2d 375, 377 (1985); V.R.Cr.P. 52(b).
It also sends some very bad signals to trial counsel and judges. It encourages raising issues for the first time on appeal. It warns judges not to accept the specification of issues from trial counsel but instead to explore every possible issue whether or not raised. *123More needless appeals to this Court result with new additions to our backlog.
I am also concerned that we have unrealistically allocated the burden of proof of ability to pay without reason. In fact, the essential information will come primarily from the defendant. I would rather see the information presented carefully and understandably by the defense rather than through a blind cross-examination of the defendant by the prosecutor and the trial judge.