STATE OF ARIZONA v. CARL ELLIOTT, JR.
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FILED BY CLERK 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 SEP 16 2010 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. CARL ELLIOTT, JR., Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2010-0238-PR DEPARTMENT A MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PINAL COUNTY Cause No. S1100CR200501225 Honorable Robert C. Brown, Judge Pro Tempore REVIEW GRANTED; RELIEF DENIED Law Offices of Harriette P. Levitt By Harriette P. Levitt Tucson Attorney for Appellant H O W A R D, Chief Judge.ï ¶1 Petitioner Carl Elliott, Jr. challenges the trial court s denial of a petition for post-conviction relief he filed pursuant to Rule 32, Ariz. R. Crim. P. In it, he sought incarceration credit against the sentences he currently is serving in Arizona for time he had spent in federal custody in Florida for a conviction and sentence that subsequently were vacated.1 We will not disturb a trial court s ruling on a petition for post-conviction relief unless it clearly has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). In March 2006, the trial court placed Elliott on five years probation in this ¶2 case, to be served concurrently with his probation in Pinal County cause number CR200400960, and ordered him to register as a sex offender. He absconded to Florida the following month, giving rise to both a warrant for his arrest and a new charge against him in Pinal County cause number CR200600993, based on his failure to keep authorities apprised of his address. ¶3 According to his petition for post-conviction relief, Elliott was arrested in Florida in August 2007, taken into federal custody, and sentenced in December 2007 to serve thirty months in prison for the offense of failing to register as a sex offender in Florida. Further, he alleged, after he had served approximately fourteen months of that sentence, his conviction was overturned, and he was released from federal custody but detained based on the outstanding Arizona warrants for his arrest. After he was returned to Arizona, Elliott s probation was revoked, and he ¶4 was convicted of the new charge against him in cause number CR200600993 pursuant to a plea. In March 2009, the trial court sentenced him in all three cases to a combined total of eight years imprisonment. He then filed his notice of and petition for post-conviction relief in this proceeding. 1 The trial court granted relief on one of the two other issues Elliott raised in his petition below and noted that the other had become moot. 2 Section 13-712(B), A.R.S., provides as follows: All time actually spent in ¶5 custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment otherwise provided for by this chapter. 2 In his petition below, Elliott argued he was entitled to credit for the fourteen months he had spent incarcerated in Florida because that federal conviction and sentence ultimately had been vacated, because there had been an Arizona hold on him during the entire time [he] was in custody on the federal case, and because otherwise he would essentially not receive[] any credit for the time he spent in federal custody. ¶6 Neither in his petition for post-conviction relief nor in his petition for review has Elliott cited any authority to support his contention that the existence of an Arizona detainer or hold for him meant that the time he spent serving a federal sentence in Florida was also time spent in custody pursuant to his three Arizona offenses. See § 13-712(B). That his federal conviction and sentence ultimately were vacated did not somehow transmute the months he had been imprisoned in Florida for the federal offense into time also spent pursuant to his pending Arizona offenses. And there is nothing in the record to show that, without the Arizona detainer, Elliott would have spent any less time in federal custody before that conviction and sentence were overturned. It follows that he cannot be said to have been imprisoned in Florida 2 Both Elliott and the court have referred to the statute by its former number, A.R.S. § 13-709(B). It was renumbered as § 13-712(B), effective from and after December 31, 2008. See 2008 Ariz. Sess. Laws, ch. 301, § 27. 3 pursuant to the Arizona offenses for which he was later sentenced following his release from federal custody and extradition to Arizona. See § 13-712(B). ¶7 The trial court correctly ruled Elliott was not entitled to presentence credit against his Arizona sentences for the time he had spent in custody in Florida. The court therefore did not abuse its discretion in denying post-conviction relief. Although we grant Elliott s petition for review, we deny relief. /s/ Joseph W. Howard JOSEPH W. HOWARD, Chief Judge CONCURRING: /s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Presiding Judge /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge 4
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