State v. Ramos

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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. ) ) ANTONIO RAMOS, ) ) Appellee. ) ) _________________________________ ) 1 CA-CR 09-0850 DIVISION ONE FILED: 12/16/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2002-021620 The Honorable Warren J. Granville AFFIRMED William G. Montgomery, Maricopa County Attorney By Lisa Marie Martin, Deputy County Attorney, Attorneys for Appellant Phoenix James J. Haas, Maricopa County Public Defender By Terry J. Reid, Deputy Public Defender, Attorneys for Appellee Phoenix W I N T H R O P, Presiding Judge ¶1 The State appeals from the trial court s October 29, 2009 order modifying the terms of probation for Antonio Ramos ( Appellee ) and ordering the Adult Probation Office ( the APO ) to calculate whether probation has been completed and to submit an order of discharge if warranted. trial court abused its discretion The State argues that the and misapplied the law by failing to review the petition to modify the term of probation under Rule 32 of the Arizona Rules of Criminal Procedure and then erred in actually modifying the order. For the following reasons, we affirm the trial court s order. FACTS AND PROCEDURAL HISTORY ¶2 On agreement. class June 20, 2003, Appellee entered into a plea Appellee pled guilty to Count 1, sexual abuse, a three felony, and Amended Count 3, attempted conduct with a minor, also a class three felony. sexual Both offenses were committed on or between March 17, 1997 and March 17, 1998. The court accepted the plea agreement, and on July 22, 2003, it sentenced Appellee to two and a half years imprisonment on Count 1 and placed him on lifetime probation on Amended Count 3. ¶3 In November, 2008, the Arizona Supreme Court held in State v. Peek, 219 Ariz. 182, 183, ¶8, 195 P.3d 641, 642 (2008), that lifetime probation imposed between January 1, 1994 and July 21, 1997, ( the Peek period ) for convictions of attempted child molestation were unauthorized by 2 statute, and therefore, illegal. Peek, Accordingly, 219 the APO Ariz. at filed 185, a ¶ 20, Petition 195 to P.3d Modify at 644. Appellee s probation under Amended Count 3 based on the holding in Peek and Appellee filed a Memorandum in Support of Probation Termination. The range of dates in which the offense in Amended Count 3 occurred straddled the Peek period, extending beyond the end of the Peek period by approximately ten months. ¶4 A hearing was held on September 2, 2009, and the court ordered a subsequent hearing to allow the State to prove that Appellee s offense under Amended Count 3 occurred outside of the Peek period. The subsequent hearing was held on October 23, 2009, and the State presented no further evidence. 1 on October Appellee s 29, 2009, probation, the decreasing lifetime to five years. 2 calculate whether court the ordered the a term of Accordingly, modification probation of from The court also directed the APO to modified probation term had been completed, and if so, ordered that the probation be discharged. This appeal followed. 1 At this hearing, the fact deported was made of record. 2 that Appellee has since been A term of five years probation was the maximum term of probation available for Appellee s offense during the Peek period. 3 JURISDICTION ¶5 The State contends that we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and 134032(4) (2010). under those accept Without deciding whether we have jurisdiction statutes, special action we instead jurisdiction exercise our pursuant discretion to A.R.S. § to 12- 120.21(A)(4) and Arizona Rules of Procedure for Special Actions 8(a). one Special action jurisdiction is proper when an issue is of first impression of a purely legal question, is of statewide importance, and is likely to arise again . . . . Vo v. Superior Court In and For County of Maricopa, 172 Ariz. 195, 198, 836 P.2d 408, 411 (App. 1992); see also Summerfield v. Superior Court In and For County of Maricopa, 144 Ariz. 467, 469, 698 P.2d 712, 714 (1985) (accepting special action jurisdiction when several pending cases involved the same issue and finding that [n]ormal appellate procedures will result in unnecessary cost and delay to all litigants ). In the instant case, the State asks us to resolve an issue of first impression that is a pure legal issue of statewide importance. Further, multiple cases involving the same issues are either presently before us or inefficient. that accepting pending, rendering normal appellate procedures Accordingly, these factors lead us to conclude special action jurisdiction appropriate. 4 in this case is ANALYSIS ¶6 In State v. Dean, 1 CA-CR 09-0705, 2010 WL 5014334 (Ariz. App. Dec. 7, 2010) (refiled as amended Dec. 9, 2010), this court rejected this already virtually case. The considered identical State has a similar arguments not as presented fact scenario those presented any new or and in unique arguments and we find no reason here to depart from our holding in Dean. CONCLUSION ¶7 For the aforementioned reasons, we affirm the trial court s order modifying Appellee s periods of probation. ________________/S/__________________ LAWRENCE F. WINTHROP, Presiding Judge CONCURRING: ____________/S/__________________ PATRICIA K. NORRIS, Judge ___________/S/___________________ PATRICK IRVINE, Judge 5

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