State v. Noriega

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellant, ) ) v. ) ) ARNOLD CHARLES NORIEGA, ) ) Appellee. ) ) __________________________________) DIVISION ONE FILED: 05-20-2010 PHILIP G. URRY,CLERK BY: PJL No. 1 CA-CR 09-0652 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. CR-2008-01077 The Honorable Lawrence C. Kenworthy, Judge APPEAL DISMISSED John R. Smith, Yuma County Attorney By Roger Nelson, Chief Deputy County Attorney Deann L. Sandry, Deputy County Attorney Attorneys for Appellant Yuma Michael Breeze, Yuma County Public Defender By Edward F. McGee, Deputy Public Defender Attorneys for Appellee Yuma D O W N I E, Judge ¶1 offenses, Arnold Charles including Noriega possession possession of drug paraphernalia. was of charged marijuana with for various sale and He moved to suppress evidence seized during a search of his home, arguing the search warrant was not supported by probable cause. The superior court granted Noriega s suppression motion in a written, signed ruling filed July 23, 2009. charges with prejudice. Although the court considered dismissing the prejudice, it ultimately dismissed them without The State then appealed from both the suppression order and the dismissal order. ¶2 An appeal must be pursued within the time and manner provided by law. State v. Dawson, 164 Ariz. 278, 281, 792 P.2d 741, 744 (1990) (citation omitted); State v. Berry, 133 Ariz. 264, 266-67, 650 P.2d 1246, 1248-49 (App. 1982). State may Statutes appeal a ( A.R.S. ) suppression section order, 13-4032(6) see Although the Arizona (2010), 1 Revised pursuant to Arizona Rule of Criminal Procedure ( Rule ) 31.3, a notice of appeal in a criminal action must be filed within 20 days after the entry of the order from which the appeal is taken. State v. Fayle, 114 Ariz. 219, 220, 560 P.2d 403, 404 (1976). ¶3 The superior court filed its signed suppression order on July 23, 2009. The State did not file its notice of appeal until August 25, 2009--more than thirty days later. The appeal is thus untimely as to the suppression order. 2 1 We cite to the current statute as no versions material to this appeal have occurred. 2 The State did not file a reply brief and therefore has not addressed Noriega s jurisdictional challenge. Because the suppression order was specifically appealable under A.R.S. § 132 ¶4 The dismissal. State s appeal is timely as to the order of However, even assuming arguendo that the trial court improperly relied on Rule 16.6(b) in dismissing the charges, we fail to see how the State is aggrieved. Moreover, the State itself says it is not ask[ing] that the dismissal order be reversed. It is clear the State s primary goal on appeal is to attain reversal of the suppression order. As we have previously explained, that relief is unavailable. ¶5 Because suppression dismissing the order, the and charges State it did is without not not timely aggrieved prejudice, we appeal by the dismiss the order this appeal. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ PETER B. SWANN, Judge 4032(6), it is not appealable pursuant to A.R.S. § 13-4032(1). See, e.g., Berry, 133 Ariz. at 267, 650 P.2d at 1249 (since an order of dismissal is specifically made appealable under A.R.S. § 13-4032(1), an order denying reconsideration of that dismissal is not appealable as an order made after judgment affecting the substantial rights of the state under A.R.S. § 13-4032(5)). 3

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