Morris, Supr. J. (Ret.),
Specially Assigned, concurring.
I agree fully with the majority’s holdings both with respect to the determination of the restitution sum, and the remand for further proceedings on defendant’s ability to pay restitution. Given the State’s concession of error and the lack of argument on the issue, I agree that the proper course is to remand and leave for another day whether to overrule prior court rulings as advocated by Justice Dooley’s dissent. I write separately to clarify that the issue raised by the dissent regarding how the court can adduce evidence on ability to pay may be fully and fairly resolved in a manner consistent with the existing statutes, and inherent judicial authority in the enforcement of lawful judgments, including those for payment of restitution in criminal cases.
¶ 23. The statute clearly does not prohibit calling of the defendant to offer testimony or other evidence to establish a record for finding as to ability to pay. To the contrary, the statute envisions that defendant will provide financial information, specifically stating that the court shall make its findings as to ability to pay “based on all financial information available to the Court, including information provided by the offender” 13 V.S.A. § 7043(d)(2) (emphasis added).7 Except as to perjury or false swearing, there are no incrimination issues, nor any confrontation issues presented in the State either calling the defendant as a *186witness, or providing documentary evidence as to ability to pay. Further, the court may directly inquire as to defendant’s financial status; this is akin to requiring an affidavit for review of public defender eligibility, or supplemental examination on the record to resolve questions as to financial affidavit contents. In fact, judges inquire all the time as to a defendant’s employment, earnings, or financial status in sentencing proceedings, judge-to-defendant, or in many and various financial-disclosure and show-cause hearings in the civil division. A defendant’s financial circumstances are a routine subject of inquiry and disclosure in presentence investigation interviews. Such inquiry is fully consistent with the statute and with the majority opinion in State v. Morse, 2014 VT 84, ¶¶ 11-19, 197 Vt. 495, 106 A.3d 902, recognizing that the rules of evidence are inapplicable, and less formal rules applicable, in restitution proceedings in contrast to those applicable in criminal trials.8
¶ 24. Justice Dooley’s dissent urges that we presently overrule the holdings in Sausville, 151 Vt. 120, 557 A.2d 502,9 and State v. Kenvin, 2011 VT 123, 191 Vt. 30, 38 A.3d 26, overruled on other grounds by State v. Aubuchon, 2014 VT 12, 195 Vt. 571, 90 A.3d 914.10 In my assessment of the case circumstances, this is not necessary and is better left to another appellate day. In an *187appropriate case, a majority of this Court may yet determine to expressly overrule Sausville and Kenvin and establish inability to pay as an affirmative defense, as well as adopt clearer standards for preservation. Alternatively, the same result may be achieved via judicial rulemaking pursuant to constitutional authority, or by legislative enactment.
¶ 25. There was scant, if any, treatment on the record below of the issues of allocation of the burden of proof on ability to pay, or preservation of error. The State has confessed error, and we are without the benefit of reasoned development and argument on appeal of these significant issues. For these reasons, I concur in the majority opinion, affirming the restitution judgment order and remanding for further proceedings on the issue of defendant’s ability to pay restitution.
¶ 26.
This section of the statute was amended by the Legislature in 2005, adding the word “all” preceding “financial” and substituting “available to the court, including information provided by the offender” for the phrase “which the defendant has filed with the court.” 2005, No. 51, § 5.
Assuming that currently the State bears the burden of persuasion on the issue of a defendant’s ability to pay restitution, and that inability to pay is not an affirmative defense, I do not construe the dicta in State v. Sausville, 151 Vt. 120, 121, 557 A.2d 502, 503 (1989), as to the means of production of evidence — “If defendant does not take the stand on his own behalf, it will be necessary for the State to establish in some other manner defendant’s ability to pay restitution” • — • to categorically prohibit the State or the court examining the defendant, or the State securing of ability-to-pay evidence by other means. If this were indeed the case, defendants could simply thwart the issuance of any restitution payment order by electing not to testify or otherwise proffer evidence in restitution hearings, effectively “slamming the door” on payment obligation, a result contrary to the intent, and as I see it, the express provision of the statutes.
In Sausville, this Court essentially rejected the State’s argument that by entering into a plea agreement to pay restitution, the defendant waived his ability to challenge ability to pay. See also State v. Baker, 2010 VT 109, ¶ 8, 189 Vt. 543, 12 A.3d 545 (mem.) (citing Sausville as holding that defendant does not waive issue of ability to pay by agreeing to restitution in a plea agreement).
Kenvin reversed a restitution payment order where the court failed to make any findings as to the defendant’s ability to pay. 2011 VT 123, ¶¶ 16-17. On the issue of preservation, as both Sausville and Kenvin make clear, the bases for reversal were the failures of the trial courts to make any findings at all as to ability to pay, contrary to the requirement of the statute.