State v. Frias

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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. 31.34 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. EVARISTO SANCHEZ FRIAS, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 07-15-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0041 DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR 2008-0227 The Honorable Robert R. Moon, Judge AFFIRMED IN PART; VACATED IN PART Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Robert A. Walsh, Assistant Attorney General Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender Attorney for Appellant Kingman T I M M E R, Chief Judge ¶1 Evaristo Sanchez Frias appeals dispositions imposed after a jury trial. his convictions and Frias argues the trial court committed fundamental error by ordering him to reimburse Mohave County for a portion of jury fees as a term and condition of probation. The State confesses error, and for the reasons that follow, we agree. ¶2 In October 2008, a jury convicted Frias of burglary in the third degree, theft, and criminal damage. Thereafter, the trial court suspended imposition of sentence and placed Frias on intensive probation for all counts. Among other terms and conditions of probation, the court ordered Frias to make and pay reimbursement through the Clerk of the Superior Court of Mohave County for [his] portion of jury fees . . . in the total amount of $1,500.00. As the court explained, The total cost to the county for jury fees was $2,783.07. This is a constitutional right, but so is the right to counsel. And we are authorized to order defendants who get probation to reimburse the county for attorney s fees. I m not going to impose the entire jury cost, but I m going to impose a contribution. And so it s ordered that the defendant s portion of the jury fees will be $1,500. ¶3 Frias argues the trial court lacked any statutory authority to impose the above fee, and even if the court had authority to essentially trial. The do so, the penalized him State order for concedes was unconstitutional invoking the 2 trial his court right lacked to as a it jury statutory authority to impose the fee and points out the legislature has expressly allocated jury fees as a county charge in criminal cases. The State further contends the fee imposed was not a punitive fine and urges us to refrain from addressing Frias s constitutional argument. ¶4 We agree with the parties that the trial court lacked authority to impose the jury fee. A trial court may not order a defendant to reimburse the county for a portion of jury fees as a term and condition of probation in the absence of statutory authority. 1131, 1145 State v. Payne, 223 Ariz. 555, 569, ¶ 48, 225 P.3d (App. 2009) (recognizing [t]he American legal tradition . . . does not, absent specific statutory authority, require defendants to reimburse the government for the costs of their . . . criminal prosecutions (quoting United States v. Bevilacqua, 447 F.3d 124, 127 (1st Cir. 2006))). trial court relied on authority bestowed by Here, the Arizona Revised Statutes ( A.R.S. ) section 11-584(B)(3) 1 (Supp. 2009), 2 which 1 We cite to the current versions of the statutes herein as no substantive changes have occurred. 2 discussed Section 11-584(B)(3) provides, in relevant part, Although the services of the public defender or court appointed counsel shall be without expense to the defendant, the court may . . . [r]equire that the defendant, including a defendant who is placed on probation, repay to the county a reasonable amount to reimburse the county for the cost of the defendant s legal defense. 3 permits the court to order a defendant to reimburse the county for the cost of court-appointed counsel. Section 11-584(B)(3) does not expressly or impliedly grant the court authority to order the reimbursement of jury fees, however. See Assoc. Dairy Prods. 206 Co. v. Page, 68 Ariz. 393, 395, P.2d 1041, 1043 (1949) ( Implied powers do not exist independently of the grant of express powers and the only function of an implied power is to granted. ). empowering defendant. expressly aid in carrying into effect a power expressly Like the parties, we are not aware of any authority the court to impose jury fees on a criminal Indeed, as the State asserts, the legislature had provided criminal cases. that jury fees are a county charge in A.R.S. § 21-122 (2002); 3 see also A.R.S. § 11- 601(4) (Supp. 2009). 4 We therefore hold that the trial court erred by ordering Frias to reimburse the county for a portion of the jury fees. 3 Payne, 223 Ariz. at 569, ¶ 49, 225 P.3d at 1145 Section 21-122 provides, While the jury is kept together, either during the progress of the trial or after retirement for deliberation, the court shall, at the expense of the county, provide the jury with suitable and sufficient food, lodging and other reasonable necessities, and the expense shall be a county charge in criminal cases. Such charges shall be assessed against the losing party in civil cases. 4 Section 11-601(4) provides, County charges are . . . [s]ums required by law to be paid to grand and trial jurors and indigent witnesses in criminal actions. 4 (holding trial prosecution court fee statutorily committed pursuant to unauthorized). fundamental county Having error by ordinance resolved this imposing that was matter on statutory grounds, we need not address Frias s constitutional arguments. 505, ¶ judicial See Goodman v. Samaritan Health Sys., 195 Ariz. 502, 11, 990 policy P.2d to 1061, avoid 1064 (App. deciding a 1999) case on ( It is sound constitutional grounds if there are nonconstitutional grounds dispositive of the case. ). ¶5 In summary, we vacate the term of probation that required Frias to reimburse the county $1500 for a portion of the jury fees, but affirm the remainder of Frias s convictions and dispositions. See Payne, 223 Ariz. at 569, ¶ 50, 225 P.3d at 1145. /s/ Ann A. Scott Timmer, Chief Judge CONCURRING: /s/ Patrick Irvine, Judge /s/ Patricia K. Norris, Judge 5

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