STATE v. FIERROZ

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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: 3/21/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JIMMY FIERROZ, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 12-0201 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-165111-001 The Honorable Connie Contes, Judge AMENDED ________________________________________________________________ Thomas C. Horne, Attorney General 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 Phoenix By Thomas K. Baird, Deputy Public Defender Attorneys for Appellant ________________________________________________________________ G E M M I L L, Judge ¶1 He Jimmy Fierroz appeals his convictions and sentences. raises committed one issue fundamental on appeal: error when whether it the awarded trial court presentence incarceration credit to him totaling 450 days. Fierroz asks this 452 court to amend his sentences presentence incarceration credit. amend the sentencing minute to reflect days of For the following reasons, we entry presentence incarceration credit. to reflect 451 days of We otherwise affirm Fierroz s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶2 Following a jury trial, Fierroz was convicted of two counts of armed robbery, three counts of kidnapping, burglary in the first degree, theft of means of transportation, misconduct involving weapons, and aggravated assault instrument against a police officer. with a dangerous On March 8, 2012, the trial court sentenced Fierroz to terms in prison ranging from four and a half years to twenty-four years for each of these convictions. they were The prison terms were imposed concurrently, and offset by 450 days of presentence incarceration credit. ¶3 Fierroz timely appeals, and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12 120.21(A)(1) (2003), 13 4031 (2010), and 13 4033(A)(1) (2010). ANALYSIS ¶4 Fierroz appeals only the amount incarceration credit given by the trial court. 2 of presentence A trial court s failure to give proper presentence credit is fundamental error. See State v. Ritch, 160 Ariz. 495, 498, 774 P.2d 234, 237 (App. 1989). Remand is not necessarily incarceration credit modifying sentencing the errors; we minute required may entry for correct to presentence the reflect error the by proper amount of presentence incarceration credit due to the defendant. See State v. Stevens, 173 Ariz. 494, 496, 844 P.2d 661, 663 (App. 1992); A.R.S. § 13 4037 (2010). ¶5 Under A.R.S. § 13-712(B) (2010), [a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment. The calculation of incarceration credit includes the first day of custody, even if it is a fraction of a day. State v. Carnegie, 174 Ariz. 452, 454, 850 P.2d 690, 692 (App. 1993). Custody begins when a defendant is booked into a detention facility. Id. The day of final sentencing is not included in presentence incarceration credit. State v. Hamilton, 153 Ariz. 244, 245-46, 735 P.2d 854, 855-56 (App. 1987). ¶6 In response to Fierroz s argument for two additional days of credit, the State concedes that he is due one additional day of presentence incarceration credit but not two. The State s argument is that Fierroz may have been arrested in the late evening of December 12, 2010, 3 but he was not actually booked until December 13, 2010. The State bases its argument on a booking form that includes Fierroz s name, photograph, booking number, and a booking date, which is 12/13/2010. ¶7 Fierroz argues December 12, 2010. questionnaire, he was booked on the night of He points to the arresting officer s release which booking number. that is dated 2010-12-12 and contains his Fierroz contends that because a booking number was issued on the same day the questionnaire was prepared, it is clear that he was booked on December 12. ¶8 We agree with Fierroz that he is entitled to one more day of presentence incarceration credit, but we agree with the State that Fierroz has not carried his burden under the principles of fundamental error review to demonstrate that he is entitled to two more days of credit. See State v. Henderson, 210 Ariz. 561, 568, ¶ 23, 115 P.3d 601, 608 (2005) (stating that under fundamental error review, appellant must first prove that error occurred). The arresting officer s release questionnaire may have been dated December 12 to reflect the date of the arrest, but the form may have been completed after midnight on the next day, at which time a booking number was assigned. Alternatively, the booking number may have been assigned and therefore available for listing on the release questionnaire very late on December 12 even though the actual booking process was not completed until December 13. 4 The official booking date is December 13. On this record, we cannot accept Fierroz s argument that he must have been booked on December 12 simply because the booking number appears on the release questionnaire that is dated December 12. ¶9 Therefore, totaling the days from December 13, 2010, through March 7, 2012 (the day before final sentencing), we find that Fierroz is incarceration credit. entitled to 451 days of presentence The trial court s failure to give proper credit was fundamental error that we will correct on appeal. CONCLUSION ¶10 We hereby amend Fierroz s sentences days of presentence incarceration credit. to reflect Fierroz s convictions and sentences are otherwise affirmed. /s/ _____________________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: /s/ ___________________________________ JON W. THOMPSON, Judge /s/ ___________________________________ DONN KESSLER, Judge 5 451

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