STATE v. WATERS

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NOTICE: NOT FOR PUBLICATION. UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Appellee, v. BRITTANY WATERS, Appellant. No. 1 CA-CR 13-0284 FILED 12-3-2013 Appeal from the Superior Court in Maricopa County No. CR2011-006960-001 The Honorable Pamela Hearn Svoboda, Judge CONVICTION AFFIRMED; JUDGMENT AFFIRMED AS MODIFIED COUNSEL Arizona Attorney General's Office, Phoenix By Michael T. O Toole Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Stephen J. Whelihan Counsel for Appellant STATE v. WATERS Decision of the Court MEMORANDUM DECISION Chief Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Margaret H. Downie and Judge John C. Gemmill joined. J O H N S E N, Judge: ¶1 Brittany Waters was convicted of aggravated assault, a Class 3 dangerous felony, and sentenced to five years' incarceration. The superior court also ordered her to "submit to DNA testing for law enforcement identification purposes and pay the applicable fee for the cost of that testing in accordance with [Arizona Revised Statutes ("A.R.S.")] § 13-610." ¶2 On appeal, Waters does not dispute her conviction nor the term of incarceration the superior court imposed. She argues only that the court erred by ordering her to pay for DNA testing pursuant to A.R.S. § 13 610 (2013). 1 The State confesses error, acknowledging that in State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013), this court held that A.R.S. § 13 610 does not authorize the court to impose a DNA collection fee on a convicted defendant. We agree that pursuant to Reyes, which was issued after Waters was sentenced, the court erred by imposing the collection fee. We therefore modify the judgment of conviction to omit the requirement that Waters pay the cost of DNA testing. :mjt Absent material revision after the alleged offense, we cite a statute s current version. 1 2

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