Baker v. Hon. Hicks/State
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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 DIVISION ONE FILED: 10-28-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE JOHN P. BAKER, Petitioner, v. THE HONORABLE BETHANY G. HICKS and THE HONORABLE GEORGE H. FOSTER, JR., Judges of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judges, STATE OF ARIZONA, Real Party in Interest. The Court, Presiding ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Judge No. 1 CA-SA 10-0133 DEPARTMENT C Maricopa County Superior Court No. CV 2008-018832 DECISION ORDER Diane M. Johnsen and Judges Patricia K. Norris and Donn Kessler participating, has received and considered Petitioner s motion to reinstate the special action filed on June 9, 2010, the response and the reply. With his Motion to File Late (Second) Notice of Appeal, filed in the superior court on July 8, 2010, petitioner provided a declaration under penalty of perjury that he mailed his notice of appeal on November 16, 2009. In response to petitioner s Motion, real party in interest State of Arizona did not object 1 CA-SA 10-0133 MARICOPA County Superior Court No. CV 2008-018832 Page 2 to the relief petitioner sought. noted that former petitioner s envelope notice indicated November 17, 2009. filed a copy complex in showed that of which defense To the contrary, the State counsel received of appeal on November the notice of appeal 18, had a copy of 2009, and the been mailed on With its response to the Motion, the State legal outgoing petitioner petitioner mail resided mailed logs and for observed unspecified items the prison that to they defense counsel, the court of appeals and the superior court on November 16, 2009. (The mail logs also showed that petitioner mailed 41 different pieces of legal mail from November 1, 2009 through December 1, 2009, and the State represented that at that time, petitioner had six different cases pending against defendants represented by the Attorney General s Office.) Pursuant to Mayer v. State, 184 Ariz. 242, 245, 908 P.2d 56, 59 (App. 1995), petitioner has established a colorable claim that he timely filed his notice of appeal by delivering it to proper prison authorities within the required timeframe. Accordingly, the court shall hold an evidentiary hearing on this issue. Id. 2 1 CA-SA 10-0133 MARICOPA County Superior Court No. CV 2008-018832 Page 3 We exercise our discretion to accept jurisdiction of the petition for special action because petitioner has no adequate remedy by appeal. For the reasons stated above, IT IS ORDERED granting relief insofar as we direct the superior court to set an evidentiary hearing to determine whether petitioner timely filed his notice of appeal by delivering it, properly addressed, to proper prison authorities within the time for appeal. 1 __________________________________ DIANE M. JOHNSEN, Presiding Judge 1 On its own motion, the court has modified the caption of the special action to include as a respondent the superior court judge that denied petitioner s Motion to File Late (Second) Notice of Appeal. 3
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