In re MH 2010-000766

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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: 01/6/11 RUTH WILLINGHAM, ACTING CLERK BY: DN IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE IN RE MH2010-000766 ) ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-MH 10-0039 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH2010-000766 The Honorable Diana L. Clarke, Judge Pro Tempore REMANDED William G. Montgomery, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney Bruce P. White, Deputy County Attorney Civil Division Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix B A R K E R, Judge ¶1 Appellant requests that we remand this case for clarification as to whether the maximum duration of Appellant s court-supervised treatment is 180 days or 365 days. Because we are unable to determine the intent of the superior court, we remand for clarification. Facts and Procedural History ¶2 on In April 2010, the superior court held a hearing a petition presentation convincing mental for of court-ordered evidence, evidence disorder that and, acutely disabled. as the treatment. court Appellant a result, found was was After by the clear and suffering from persistently a or The court ordered that Appellant undergo supervised treatment. ¶3 Regarding the duration of the supervised treatment, the hearing transcript reads as follows: Therefore the Court is ordering that [Appellant] undergo treatment in a combined inpatient and outpatient treatment program until he s found to no longer be persistently or acutely disabled. The maximum amount of time that s ordered for treatment will be in effect, is [sic] 180 days. (Emphasis added.) In contrast, the court s written order states: [Appellant] shall undergo: Treatment in a program of combined inpatient and outpatient treatment until said patient 2 is found to be no longer persistently or acutely disabled, or is otherwise discharged in accordance with law, for a period of time not to exceed a total of 365 days, and with the period of inpatient treatment under this combined order not to exceed 180 days . . . . (Emphasis added.) consistent with The the minute entry order written for and the hearing not the is oral pronouncement. ¶4 the Appellant filed a timely notice of appeal from treatment Arizona order. Revised We Statutes have jurisdiction ( A.R.S. ) pursuant sections to 36-546.01 (2009), 12-120.21(A)(1) (2003), and 12-2101(K) (2003). Discussion ¶5 There is a discrepancy between the court s oral pronouncement written of order. supervised The treatment hearing and transcript the states court s that the maximum duration of Appellant s supervised treatment is 180 days, and the court s written order states that the total maximum duration is 365 days, with 180 days being the maximum for inpatient treatment. ¶6 When we encounter such a discrepancy, it is appropriate to remand unless we can discern the court s actual intent by reference to the record. State v. Bowles, 173 Ariz. 214, 216, 841 P.2d 209, 211 (App. 1992); see also State v. Rockerfeller, 9 Ariz. App. 265, 267, 451 P.2d 623, 3 625 (1969) ( When there is a Conflict [sic] between the minutes and a reporter s transcript, the circumstances of the particular case determine which shall govern. ). ¶7 Here, Appellant argues that the record fails to adequately clarify the superior court s actual intent in setting the maximum duration of Appellant s treatment. Having reviewed the record, we agree. ¶8 Appellee argues that the following references to the record reveal that the court intended to set the maximum duration of treatment at 365 days: (1) the court appeared to adopt the recommended treatment plan which recommended a total period of 365 days for treatment by stating that the plan appear[ed] appropriate ; (2) a postjudgment letter from the outpatient treatment provider stated in its introduction that Appellant had been ordered to receive treatment for one year; and (3) the 45-day status report from the outpatient treatment provider stated that Appellant s treatment began on 04/09/2010 and would end on 04/08/2011. ¶9 It may well be that the court intended to order 365 days of total treatment time. oral pronouncements pronouncements. 674 P.2d 850, take However, in Arizona, precedence over written State v. Hanson, 138 Ariz. 296, 304-05, 858-59 (App. 4 1983) ( Where there is a discrepancy between the oral sentence and the written judgment, the oral pronouncement of sentence controls. ). The oral pronouncements in this case refer to a maximum time of caution, 180 days. we remand Therefore, for out clarification of of an abundance total of treatment time. Conclusion ¶10 For the foregoing reasons, we remand this case to the superior court to clarify the maximum total duration of Appellant s supervised treatment. /S/ __________________________________ DANIEL A. BARKER, Presiding Judge CONCURRING: /S/ ____________________________________ MARGARET H. DOWNIE, Judge /S/ ___________________________________ MICHAEL J. BROWN, Judge 5

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