STATE v. LEVI

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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: 11/27/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. DAVID JOSEPH LEVI, Appellant. ) ) ) ) ) ) ) ) ) ) ) Nos. 1 CA-CR 12-0237 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. LC 2011-000665-001 The Honorable Crane McClennen, Judge JURISDICTION DECLINED Caron Close, Scottsdale City Prosecutor by Kenneth M. Flint, Assistant City Prosecutor Attorneys for Appellee Neal W. Bassett Attorney for Appellant Scottsdale Phoenix H A L L, Judge ¶1 Scottsdale David City Joseph Court Levi (defendant) conviction and the appeals sentence from his imposed. Treating defendant s appeal as a petition for special action, for the following reasons, we decline jurisdiction. FACTS AND PROCEDURAL BACKGROUND ¶2 On March 23, 2010, defendant was counts of driving under the influence: charged with two Count I impaired to the slightest degree (Arizona Revised Statutes (A.R.S.) section 28-1381(A)(1) (2012)), and Count II drug or its metabolite in body (A.R.S. § 28-1381(A)(3)). A jury Scottsdale City Court on May 11, 2011. trial was held in At the beginning of trial, the State moved to dismiss Count I, which the trial court granted. The jury then found defendant guilty of Count II. Following sentencing, defendant timely appealed to the superior court. A.R.S. § 12-124(A) (2003). ¶3 On appeal in the superior court, defendant argued for the first time that that A.R.S. § 28-1381(A)(3), (D) violates the Equal Protection clauses of the federal and state constitutions by permitting drivers with authorized prescription drug metabolites in their bodies to operate a vehicle, if they are not impaired, but prohibiting all other drivers with drug metabolites in their bodies from operating vehicles, even if they are likewise unimpaired. The superior court found defendant waived this issue by failing to raise it in the trial court. See Englert v. Carondelet Health Network, 199 Ariz. 21, 27, ¶ 13, 13 P.3d 763, 768 (App. 2000) (explaining appellate 2 courts generally do not consider issues, even constitutional issues, raised for the first time on appeal ). Defendant then brought this appeal. JURISDICTION ¶4 The State correctly notes that defendant has no right of direct appeal to this court. Riddel, 169 Ariz. 117, 117, State ex rel. McDougall v. 817 P.2d 62, 62 (App. 1991) (explaining a petition for special action is the only avenue remaining for review after a city court s judgment [has] been appealed to the superior court ); Sanders v. Moore, 117 Ariz. 527, 528, 573 P.2d 927, 928 (App. 1977) (explaining that, pursuant to A.R.S. § 22-375 (2002), the court of appeals lacks jurisdiction over a case appealed to superior court from a municipal court judgment unless the action involves the validity of a tax, impost, assessment, toll, municipal fine or statute). ¶5 Nonetheless, in our discretion, we may treat defendant s appeal as a petition for special action and consider the merits of his claim. See State ex rel. Dep t of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 18, 66 P.3d 70, 73 (App. 2003). We decline to accept special action jurisdiction here, however, because defendant waived in the municipal court the only issue he has raised in his briefing. 3 CONCLUSION ¶6 For the foregoing reasons, we decline jurisdiction. _/s/______________________________ PHILIP HALL, Presiding Judge CONCURRING: _/s/________________________________ PETER B. SWANN, Judge _/s/________________________________ SAMUEL A. THUMMA, Judge 4

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