State v. Neil
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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. LINDA J. NEIL, Appellant. No. 1 CA-CR 10-0370 DIVISION ONE FILED: 02/03/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT S MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-149745-001 SE The Honorable Warren J. Granville, Judge AFFIRMED AS MODIFIED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Edith M. Lucero, Deputy Public Defender Attorneys for Appellant Phoenix T I M M E R, Chief Judge ¶1 order, Linda J. Neil appeals the trial court s disposition which states felony offenses. Neil was convicted of two undesignated Neil asks this court to exercise its authority to correct the sentencing order to reflect that the trial court expressly intended to designate the convictions as misdemeanors, as previously reflected in a written ruling and as stated orally at the disposition hearing. The State confesses error, and for the reasons that follow, we agree. ¶2 On September 4, 2009, the State charged Neil with count one, possession of marijuana, and count two, possession of drug paraphernalia, both class 6 felonies. Several months later, the State moved to amend its information to designate both counts as misdemeanors. At the final trial management conference, the court granted the motion. ¶3 After a bench trial, the court found Neil guilty of both counts and subsequently placed her on probation. Despite the court s earlier ruling on the State s motion and its oral pronouncement entries at dated the March disposition 22 and April hearing, 13, the 2010, court s stated minute Neil was guilty of two class 6 undesignated felonies. ¶4 Upon finding a discrepancy between an oral pronouncement at a disposition hearing and a resulting minute entry, we must determine review of the record. the trial court s intent through a State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992). Based on the court s grant of the State s motion to designate the charges as misdemeanors and the court s oral pronouncement at the disposition hearing, the court 2 indisputably intended to designate counts one and two as misdemeanors. ¶5 that We therefore modify the court s disposition to reflect Neil was convicted of two misdemeanor drug offenses: possession of marijuana and possession of drug paraphernalia. See State v. Contreras, 180 Ariz. 450, 453 n.2, 885 P.2d 138, 141 (App. 1994) (holding remand unnecessary if trial court s intention clear from the record). We affirm the convictions and dispositions in all other respects. /s/ Ann A. Scott Timmer, Chief Judge CONCURRING: /s/ Diane M. Johnsen, Judge /s/ Donn Kessler, Judge 3
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