dissenting:
¶ 29 I dissent. The defendant has not been afforded the “full hearing” which section 76-3-201(4)(e) (1999) guarantees him.
¶ 30 The majority gives no effect to the statutory right of the defendant to a “full hearing” regarding the amount of restitution he should be ordered to pay. Instead, the majority lumps the statutory right to a “full” restitution hearing together with the sentencing hearing and then declares that under rule 1101(b)(3) of the Utah Rules of Evidence, evidentiary rules do not apply to sentencing proceedings. The majority relies on State v. Sanwick, 713 P.2d 707, 709 (Utah 1986), where we held that under rule 1101(b)(3) evidentiary rules do not apply to sentencing proceedings. However, in that case this court was not dealing with a restitution hearing, but with the sentencing of the defendant after he pleaded guilty to one count of rape, which charged him with using force, duress, violence, intimidation, coercion, menace, or threat of harm. When he was sentenced, he requested that he be permitted to confront his victims and to cross-examine them to refute allegations of violence during the commission of the crime. He also complained of the admission of hearsay evidence. *1008The trial court denied his request, and on appeal to this court, we affirmed on the basis that the Rules of Evidence in general and the rules on hearsay exclusions, in particular, are inapplicable in sentencing proceedings. Rule 1101(b)(3). Sanwick did not involve restitution nor the statute that guarantees a “full hearing” before a restitution judgment can be imposed.
¶ 31 The instant case presents a far different situation. Here, the defendant seeks to avail himself of the right to a “full hearing” on the amount of restitution he shall be ordered to pay. This is a statutory right and is not governed by rule 1101(b)(3). The legislature provided for a “full hearing” because the amount of restitution which is determined and ordered to be paid becomes a legal civil judgment enforceable as any other civil money judgment. See Utah Code Ann. § 76-3-201(4)(a)(iv). The judgment “constitutes a lien when recorded in a judgment docket and shall have the same effect and is subject to the same rules as a judgment for money in civil actions.” Id. at § 76-3-201(4)(a)(vi). Interest accrues from the time of sentencing. Id. If the defendant fails to obey a court order for payment of restitution and collection is pursued by civil process, the victim shall be entitled to recover reasonable attorney fees. Id. at § 76-3-201(4)(a)(v). Even the death of the criminal defendant does not abate the restitution judgment. See State v. Christensen, 866 P.2d 533, 535 (Utah 1993) (prison term and fine abate on death of defendant but restitution judgment survives).
¶ 32 Because the restitution ordered by the trial court becomes an enforceable money judgment against the defendant, bearing interest, fully enforceable and collectable with the possible addition of attorney fees, and does not abate on the death of the defendant, the legislature properly provided for a “full hearing” before such a judgment can be entered. It is incongruous to hold that a money judgment of this nature could be entered against a criminal defendant without according him the same due process that any other debtor would receive in a civil court. Rule 1101(b)(3) should not be used as a basis for depriving a defendant of his right to due process before a money judgment is entered against him. The statute that guarantees the defendant a “full hearing” must necessarily trump the general rule contained in evidence rule 1101(b)(3) which governs other aspects of sentencing, apart from the order of restitution, as addressed in State v. Sanwick. The statute’s mandate that a defendant be given a “full hearing” on the issue of restitution can be contrasted with the requirement for sentencing found in rule 22 of the Utah Rules of Criminal Procedures which merely requires that “the court shall set a time for imposing sentence.”
¶ 33 The majority declares that the statutory right to a full hearing does not require that the state present competent evidence that would be admissible at trial and concludes that the restitution judgment may rest entirely on hearsay. The majority further declares that there is “wisdom” in not applying evidentiary rules to restitution hearings because judges need flexibility in determining whether to impose restitution in lieu of a fine or an increased prison term. I cannot subscribe to that reasoning since every person, whether in civil court or criminal court has the right to the assurance that any personal money judgment against him or her is founded on competent evidence. Simply put, due process must be accorded in obtaining a restitution judgment.
¶ 34 Adhering to the rules of evidence in a restitution hearing will not impose a burden on trial court judges. A defendant will request a full hearing in only those few instances in which the defendant questions the accuracy of amounts in the presentence report. The hearing need not be held at the time of sentencing, but must be requested at that time. The victim can appear at the hearing and testify as to his or her loss and then be cross-examined by the defendant. The majority would not require the victim to appear and testify, but instead would require the defendant to refute the accuracy of the amounts claimed in the presentence report. I would not shift that burden to the defendant since it is counter to the procedure for money judgment in civil courts. Additionally, the defendant usually does see the pre-sentence report before sentencing. If he questions the amount of damage claimed and *1009requests a hearing, he may be incarcerated at that time and have no way or means to interview the victim as to the accuracy of his or her claim of damage.
¶ 35 The instant case exemplifies the rationale for the' legislature’s intent to guarantee the defendant the right to request a “full hearing” where only competent evidence would be admitted in establishing the amount of the restitution judgment to be imposed against him. In the instant case, the only evidence before the trial court was the pre-sentence report. The prosecution made the following comment to the court concerning the report:
I have the statements in the report saying that Mr. Hatten lost personal items and repairs that totaled $1,500, and more repair payments from Mr. Garcia would indicate that personal items of $500 were missing, a $500 deductible was paid, and an additional $500 to repair and painting of the car to make it match. Those don’t sound like unreasonable sums, and they sound-even if they are estimates, they’re probably only pennies off or probably short, so ... as to this type of conduct.
I’d ask the Court to order that the restitution remain based upon the findings of the presentence report, and if there are further adjustments then the board of pardons might be the right place to take care of these matters.
The prosecution’s statement that “those don’t sound like unreasonable sums, and they sound — even if they are estimates, they’re probably only pennies off or probably short” is so punctuated with uncertainty, so rife with equivocation, that it calls into serious question the accuracy and reliability of the amounts in the presentence report. The suggestion that the Board of Pardons “might be the right place” to make “further adjustments” to the restitution judgment is a novel idea, but not founded on any legal authority. Clearly, the Board has no power to alter docketed money judgments.
¶ 36 I would reverse the court of appeals and instruct it to remand this ease to the trial court for the purpose of according the defendant his statutory right to a full hearing.
¶ 37 Justice RUSSON concurs in Justice HOWE’s dissenting opinion.