243 P.3d 1029
Ariz. Ct. App.2010Background
- Arizona amended §13-902 to list lifetime probation changes in 1994; Peek period applied to attempted child molestation; 1997 re-added, creating periods of legality uncertainty.
- Dean pled guilty in 2002 to two counts of attempted molestation (Counts 1 and 4) with lifetime probation imposed for both.
- In 2009 the Adult Probation Office moved to terminate/modify probation under Counts 1 and 4 based on Peek-related illegality, and the trial court reduced both to five years.
- The trial court modified Count 1 and Count 4 to five-year terms, directing probation calculation and potential discharge; the State appealed.
- Appeal sought to invoke special-action jurisdiction; issue centered on Rule 32 applicability, Rule 27.3/27.4 modification authority, and pagination of dates for the Peek period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 32 applies to APO-propelled probation relief. | State argues Rule 32 governs; relief precluded by timeliness. | Dean (Appellee) not directly invoked Rule 32; APO may seek Rule 27 relief. | Rule 32 not applicable; APO may seek relief under Rule 27. |
| Whether the trial court properly modified probation under Rule 27.4 without required ends-of-justice finding. | State contends court erred by not applying Rule 27.4 discharge standard. | Court intended Rule 27.3 modification, not discharge; no 13-901(E) finding required. | Court acted under Rule 27.3, no Rule 27.4 findings needed. |
| Whether lifetime probation could be lawfully imposed given the date range of Counts 1 and 4 straddling the Peek period. | State claims some dates fell outside Peek, potentially validating lifetime probation. | Absent proof outside Peek, ex post facto prohibits lifetime probation. | Modification to five years warranted absent evidence outside Peek; ex post facto not violated. |
| Whether the State met its burden to pinpoint the offense outside Peek; failure precludes lifetime probation. | State did not prove offense occurred outside Peek. | Appellee contends all elements could occur before Peek end. | State failed to prove outside-Peek date; court did not err in modification. |
Key Cases Cited
- State v. Contreras, 180 Ariz. 450 (Ariz. 1994) (abuse of discretion standard for probation modification)
- Jackson v. Schneider, 207 Ariz. 325 (Ariz. App. 2004) (court modifies probation when term illegal; no Rule 32 relief)
- Shrum, 220 Ariz. 115 (Ariz. 2009) (Rule 32 preclusion for certain post-conviction relief)
- State v. Rutherford, 154 Ariz. 486 (Ariz. App. 1987) (probation modification authority limited by statute and due process)
- State v. Perez, 141 Ariz. 459 (Ariz. 1984) (affirms that result is correct for any reason; lenity not applicable)