(concurring in result).
Carte blanche, the trial court accepted the recommendation of the Victim’s Assistance Office of Pennington County. Handwritten notes, supplied by the victims themselves, reflected the damages the victims believed they had coming. These handwritten notes were the basis of the recommendations by the Victim’s Assistance Office. Ex parte, the trial judge accepted the recommendations. When defense counsel objected to this procedure, and having received the recommendations on the morning of the sentencing, defense counsel asked for a separate hearing on the restitution. His request was summarily denied. See SDCL § 23A-28-3.
I certainly agree that Tuttle’s procedural safeguards, under due process principles, were not minimally met nor were they met under the state statute which I have cited above. It is rather basic that a party has the right to.be heard.
Conceding that this is a case which should be reversed on the restitution aspect, I am troubled by the generic language in the penultimate paragraph of the majority opinion. I would agree that the defendant should not have a jury trial on *161restitution and I believe that it is proper, for purposes of review, that findings of fact and conclusions of law be entered below. Restitution can theoretically amount to tens of thousands of dollars. I would opt against a Mickey Mouse procedure and would require a formal setting with witnesses sworn and the right of cross-examination to prevail. Exhibits should be formally marked and introduced in evidence with a foundation. The defendant should be given the right to subpoena witnesses on his behalf as this procedure is part and parcel of the criminal case.
Lastly, a degree of proof must be established by this Court for guidance to the trial courts for their future action. “Beyond a reasonable doubt” and “by a preponderance of the evidence” I would dismiss hence. The majority opinion is somewhat vague about the requisite degree of proof. I would establish the “reasonably satisfied” standard in restitution proceedings, i.e., the State must prove the damages to such extent that the court is “reasonably satisfied” that the damages (restitution) exist per the proof.* Perhaps the majority opinion infers what I have set forth. Perhaps, also, the State Legislature should examine its restitutional scheme. When the Legislature provided for a “hearing” on the issue of the amount of restitution to be ordered, did it mean a “formal hearing” per the Rules of Civil Procedure? And what degree of proof did the Legislature have in mind? SDCL 23A-28-3 gives the trial court the power to “determine” the amount of restitution. No requisite platform of proof is specified. Are we then, instanter, judicial activists?
This Court, in State v. Davis, 458 N.W.2d 812 (S.D.1990) handed down on August 1, 1990, reversed another circuit court judge of the Seventh Judicial Circuit on an issue of restitution. We expressed, inter alia, that "The policy of the restitution statutes of this state is to assure that criminals make restitution to the 'victims of [their] criminal activities to the extent that the violator is reasonably able to do so.’ SDCL 23A-28-1." This statutory language places a duty upon a trial judge to make restitution to the extent that the violator is "reasonably able” to make restitution. Therefore, I would adopt an evidentiary posture, that a trial judge must be reasonably satisfied as to the existence of the damages and "reasonably satisfied” that the violator is “reasonably able” to make restitution. In adopting such a standard (legal foghorn— warning of reversible danger), we steer clear of a fog that could cloud a trial court’s judgment and eliminate a blurring signal from this Court.