State v. Chacon

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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JOSEANGEL CHACON, ) ) Appellant. ) __________________________________) DIVISION ONE FILED: 05/07/2009 PHILIP G. URRY,CLERK BY: RWillingham 1 CA-CR 08-0104 DEPARTMENT D OPINION Appeal from the Superior Court in Maricopa County Cause No. CR2004-009914-002 DT Honorable Jaime B. Holguin, Commissioner VACATED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel, Criminal Appeals Section/Capital Litigation Section And Jessica L. Quickle, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Louise Stark, Deputy Public Defender Attorneys for Appellant Phoenix O R O Z C O, Judge ¶1 Joseangel1 Chacon (Defendant) appeals the superior court finding of a probation violation and disposition. 1 The Although Defendant s name appears as Jose Angel some places in the record, we use the spelling from the minute entry of June 16, 2004, in which the trial court deliberately corrected the record to reflect that his name is Joseangel. 1 question before us is whether the petition to revoke probation was filed before Defendant s probation expired, and if not, whether the failure to file the petition, before the expiration of probation, divested the court of jurisdiction. Because the petition to revoke was not filed, the court lacked jurisdiction. Therefore, we vacate the finding of a probation violation and related sentence. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Defendant pled guilty to robbery and was placed on probation for three years, beginning September 24, 2004. July 20, 2007, Defendant filed a motion to terminate On his probation, citing the lack of any violations and no major police contact or conflicts with probation officers. That same month, a new probation officer assumed supervision of Defendant s case. On July 23, 2007, two months before Defendant s probation was to expire, the newly assigned officer signed a Petition to Revoke Probation (the July petition) based on Defendant s alleged possession of a gun and failure to make monthly payments of a fee. The Commissioner reviewed Violation Report on August 21, 2007. and signed the Probation However, the July petition was not filed with the clerk s office until January 16, 2008, after Defendant s probation had expired. ¶3 Revoke The probation officer prepared a second Petition to Probation dated September 2 20, 2007, (the September petition) because Defendant tested positive for marijuana use. There is no evidence that the September petition was ever signed or dated by the trial court or filed with the court clerk s office. In fact, the State admits [t]he trial court never forwarded the [September] supplemental petition to revoke . . . to the Clerk of the Court. Additionally, the State acknowledges the petition was never admitted into evidence.2 ¶4 At a hearing November 2, 2007, the State informed the court it was dismissing the July petition to revoke based on weapons possession because Defendant was never charged with the underlying crime, but said it wished to proceed with the September petition to revoke based on Defendant s positive drug tests. After hearing testimony, the court held that Defendant violated the terms of his probation, based on the positive drug tests. On January 14, 2008, the court sentenced Defendant. The court reinstated Defendant on intensive probation until March 18, 2009. The court also imposed a sentence of four months jail time beginning on November 18, 2008, with work furlough, 2 On November 21, 2008, the State filed a motion with this court to supplement the record on appeal with a copy of the September 20, 2007, Petition to Revoke Probation. That motion was granted December 4, 2008. According to the State, a copy of the petition was obtained from both the Maricopa County Attorney s Office and from Appellant s current probation officer. However, the petition is not signed or dated by a superior court judge or commissioner on lines reserved for the court s signature. 3 and reinstated fines and penalties. Defendant timely appealed. We the have jurisdiction pursuant to Arizona Constitution Article VI, Section 9, and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A (2003), 13-4031 (2001) and 13-4033 (Supp. 2008). DISCUSSION ¶5 Subject matter jurisdiction is the power of a court to hear and determine a controversy. Marks v. LaBerge, 146 Ariz. 12, 15, 703 P.2d 559, 562 (App. 1985). The issue of jurisdiction may be raised at any time. State v. Flores, 218 Ariz. 708-09 407, 409-10, ¶ 6, 188 P.3d 706, (App. 2008). [S]ubject-matter jurisdiction, because it involves a court s power to hear Consequently, a case, defects can in never be subject-matter forfeited or waived. jurisdiction require correction regardless of whether the error was raised in the lower court. U.S. v. Cotton, 535 U.S. 625, 630 (2002). An order is void if the court entering it lacked jurisdiction. State v. Cramer, 192 Ariz. 150, 153, ¶ 16, 962 P.2d 224, 227 (App. 1998). ¶6 The superior court lacks probation once it has expired. jurisdiction to revoke State v. Johnson, 182 Ariz. 73, 73, 893 P.2d 73, 73 (App. 1995) (citation omitted). The filing of a petition to revoke probation tolls the running of the probation until the termination 4 of revocation of probation proceedings. 13-903.D Id. at 73-74, 893 P.2d at 73-74 (citing A.R.S. § (2001)3). Pleadings or other legal papers are considered filed when they are either filed with the clerk of the court or filed with the appropriate judge (if the judge permits) and in that event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. 4 5.h). Id. at 74, 893 P.2d at 74 (quoting Ariz. R. Civ. P. See Ariz. R. Crim. P. 35.5 ( Unless otherwise specified in these rules, the manner and sufficiency of service and filing of motions, requests, petitions, applications, and all other pleadings and documents shall be governed by Rule 5 of the Rules of Civil Procedure. ). Additionally, Arizona Rule of Criminal Procedure 28.1.a provides that [t]he clerk of the court shall receive and maintain all papers, documents and records filed . . . in criminal cases. under Rule 5(h), they [W]hen items are filed with the judge must be forwarded to the inclusion in the file in order to be legally filed. 182 Ariz. at 75, 893 P.2d at 75 (emphasis added). to timely file jurisdictional. the petition to revoke clerk for Johnson, [A] failure probation is Id. 3 We cite to the current version of the applicable statute because no revisions material to this decision have occurred since the statute was originally cited in Johnson. 4 Absent authorization from the judge pursuant to Rule 5(h), the responsibility remains with the litigants to ensure pleadings are properly filed. 5 ¶7 In Johnson, the judge signed and dated the petition to revoke probation and forwarded it to the clerk s office the next business day. Id. at 74, 893 P.2d at 74. The court held that this constituted substantial compliance with Rule 5(h). Id. at 74, 75, 893 P.2d at 74, 75. ¶8 In this case, the State argues the July petition was filed when it was submitted to the Commissioner. Assuming without deciding that the July petition was timely filed when it was delivered to the Commissioner, that did not relieve the State of the duty to timely file the September petition. The State the concedes the Commissioner never signed or dated September petition and never forwarded it to the court clerk. Therefore, because the State dismissed the July petition and the September petition to revoke was not filed in accordance with Rule 5.h, the running of Defendant s probation was no longer tolled, the probationary period had expired, and the lacked jurisdiction to act on the September petition. court See also Alder v. State, 108 S.W.3d 263, 267 (Tenn. Crim. App. 2002) (trial court lacked jurisdiction to revoke probation after probation expired, where neither probation revocation warrant nor petition probationary to revoke period, but probation were filed violation reports within were the submitted directly to the judge); People v. Thoman, 886 N.E.2d 518, 523 (Ill. App. 5th Dist. 2008) (requiring strict compliance with 6 statutory requirements for tolling of probationary period and thereby affirming a dismissal of a petition to revoke probation for lack of jurisdiction). ¶9 The State argues we nevertheless should affirm because errors in following procedural rules should not be the basis for reversal unless such a mistake prejudices or tends to prejudice Defendant with respect to a substantial right. 3987 (2001). Article VI, The § State cites 27, which to states the that, See A.R.S. § 13- Arizona [n]o Constitution, cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done. The State contends Defendant was not prejudiced with respect to a substantial right because he had timely notice of the allegations against revocation proceedings. him and participated in the The State argues that any error in this case therefore was harmless. ¶10 Among the basic fair-trial rights that can never be treated as harmless if denied is a defendant s right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside. not apply when an officer jurisdictional authority. (1989). 1990) Thus harmless-error analysis does of the court exceeds his Gomez v. U.S., 490 U.S. 858, 876 See also U.S. v. Bolton, 893 F.2d 894, 900 (7th Cir. ( A jurisdictional error 7 cannot be waived or deemed harmless error ); Lovelace v. Dall, 820 F.2d 223, 226 n.3 (7th Cir. 1987) ( lack of jurisdiction cannot be deemed harmless error ). Similarly here, conducting a harmless error analysis would incompatible be jurisdictional. the court, with the principle that Rule 5.h is Nor do we believe that requiring parties, or to comply technical or harsh. with procedural rules is unfairly State v. Bryant, 219 Ariz. 514, ¶ 12, 200 P.3d 1011, 1014 (App. 2008). CONCLUSION ¶11 court s For the finding above-stated of a reasons, probation we violation vacate and the the trial related sentence. __________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: ____________________________________ PATRICK IRVINE, Judge ____________________________________ PETER B. SWANN, Judge 8

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