242 P.3d 1055
Ariz.2010Background
- Bowsher was charged in two separate indictments with ten felonies, ultimately pleading guilty to one count of theft by control in each case with different victims.
- The trial court sentenced him to four years of probation in each case and ordered the probation terms to run consecutively.
- Bowsher challenged post-conviction relief, contending the court lacked authority to impose consecutive probation terms.
- The superior court and court of appeals denied relief, and the Arizona Supreme Court granted review to resolve whether consecutive probation is permissible.
- Arizona law § 13-903(A) uses a disjunctive: probation may begin as imposed or on a date designated by the court, which the court interpreted to allow consecutive probation terms.
- The Court ultimately holds that § 13-903(A) permits consecutive probation terms, overturning earlier statements in Pakula and Jones as obsolete or dicta.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 13-903(A) authorizes consecutive probation terms | Bowsher contends no authority for consecutive probation. | State argues statute's disjunctive language permits consecutive terms. | Yes, consecutive probation terms are authorized. |
| Effect of Pakula/Jones on current interpretation | Pakula/Jones prohibit consecutive probation. | These cases are controlling and preclude consecutive terms. | Pakula obsolete; Jones dictum disavowed; consecutive probation allowed. |
| Interpretation of 'as designated by the court' and 'without delay' | Designated start must align with 'without delay' from § 13-901(A). | Discretion to designate start dates permits consecutive terms. | Interpretation permits consecutive terms and harmonizes with § 13-901(A). |
| Retroactivity of the change in law | Rule change is unforeseeable and retroactive protection may apply. | Legislature post-dates Pakula, making retroactivity inapplicable. | Change is not retroactive-improper reliance; statute governs. |
Key Cases Cited
- State v. Pakula, 113 Ariz. 122 (1976) (holding consecutive probation unlawful under pre-13-903 framework)
- State v. Jones, 124 Ariz. 24 (1979) (limited Pakula to single indictment with multiple counts)
- State v. Ball, 157 Ariz. 382 (App. 1988) (upheld probation )
- State v. Cox, 217 Ariz. 353 (2007) (MPC influence on Arizona statutes)
- State v. Mott, 187 Ariz. 536 (1997) (MPC background in criminal code revisions)