STATE OF ARIZONA v. BRETT FISHER

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FILED BY CLERK NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND M AY 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. AUG 20 2009 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. BRETT FISHER, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2009-0121-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF GILA COUNTY Cause No. CR 20070052 Honorable Robert Duber II, Judge REVIEW DENIED Daisy Flores, Gila County Attorney By Pascal Brown Brett Fisher Globe Attorneys for Respondent Buckeye In Propria Persona E C K E R S T R O M, Presiding Judge. ¶1 A jury found petitioner Brett Fisher guilty of trafficking in stolen property in the second degree, a class three felony, and theft of property valued at more than $250 but less than $1,000, a class six felony. The trial court suspended the imposition of sentence, placed Fisher on probation for four years, ordered him to serve 365 days in jail as a condition of his probation, and ordered him to pay $579 in restitution. We affirmed Fisher s convictions and the probationary term imposed on appeal. State v. Fisher, No. 2 CA-CR 2007-0276 (memorandum decision filed May 29, 2008). In September 2007, the state filed a petition to revoke Fisher s probation, alleging he had failed to self surrender to the jail as ordered by the court. Fisher admitted the violation in December 2007, and in January 2008, the court revoked his probation and sentenced him to concurrent, mitigated terms of imprisonment, the longer of which was 2.5 years. This petition for review follows the court s order denying his request for post-conviction relief. Although the trial court appointed counsel to represent Fisher in the post- ¶2 conviction proceeding related to the revocation of his probation, in March 2008 Fisher filed a pro se notice of post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P.1 The court then granted counsel an extension to file a petition for post-conviction relief by January 2009. It appears that no document designated as a petition for post-conviction relief was ever filed. However, in November 2008, the court denied Fisher s pro se Motion For Evidentiary Hearing - Rule 32 Petition, filed earlier that month while Fisher was still represented by counsel. In December 2008, the court granted counsel s motion to withdraw, which counsel 1 In September 2008, counsel asked the trial court to vacate the stay of the postconviction proceeding that Fisher had requested after filing his first notice of post-conviction relief. The court had stayed that post-conviction proceeding pending the outcome of his appeal. 2 filed at Fisher s request. Then, in January 2009, the court denied Fisher s Motion for PostConviction Relief, finding there were no grounds upon which post-conviction relief should be granted. The court was presumably referring to Fisher s Motion For Evidentiary Hearing - Rule 32 Petition. ¶3 Because it appears that the trial court treated Fisher s Motion For Evidentiary Hearing - Rule 32 Petition as a properly filed petition for post-conviction relief and that the court denied relief on the merits, Fisher s March 31, 2009 petition for review of the court s order denying relief, filed on April 13, 2009, is untimely. See Ariz. R. Crim. P. 32.9(c) (petition for review must be filed within thirty days after trial court s final decision on petition for post-conviction relief). We therefore deny review without prejudice to Fisher to seek leave from the trial court to file a delayed petition for review. See id. ¶4 The petition for review is denied. _______________________________________ PETER J. ECKERSTROM, Presiding Judge CONCURRING: _______________________________________ J. WILLIAM BRAMMER, JR., Judge _______________________________________ GARYE L. VÃ SQUEZ, Judge 3

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