STATE of Arizona, Respondent, v. David Lee FOWLER, Petitioner
1 CA-CR 10210-PR
Court of Appeals of Arizona, Division 1, Department D
Oct. 29, 1987
752 P.2d 497
The defendant next contends that it was fundamental error for the trial court not to instruct the jury on voluntary intoxication. Since one of the rationales used by the Court of Appeals to support reckless second degree murder was the evidence of defendant‘s intoxication, the defendant contends that an instruction on voluntary intoxication was fundamental to the defense. The defendant did not request an instruction on intoxication, and ordinarily a defendant may not assign as error the trial court‘s failure to give the jury an intoxication instruction, when the defendant did not request one or object to the failure to give one. Such failure to instruct does not constitute fundamental error. State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983), appeal after remand, 142 Ariz. 564, 691 P.2d 655 (1984), cert. denied, 470 U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985);
The defendant‘s intoxication does not appear to have been argued to the jury. The defense presented was that the defendant did not commit the crime, not that he was intoxicated. There was no direct evidence which would indicate whether the defendant was intoxicated when he shot the victim. Although we agree with the Court of Appeals that an instruction on reckless second degree murder was proper, we do not reach that conclusion based on the possible intoxication of the defendant. The use of a deadly weapon, the nature of the fatal wound, the concealment of the body, and flight are all factors which suggest that the defendant in firing the gun intended to kill the victim, but the factors also support the conclusion, absent any other explanation, that in the use of the lethal weapon the defendant showed an extreme indifference to human life. See State v. Reffitt, 145 Ariz. 452, 702 P.2d 681 (1985); State v. Watkins, 126 Ariz. 293, 614 P.2d 835 (1980).3
The opinion of the Court of Appeals is approved as modified by the views expressed in this opinion, and the order of the superior court granting a new trial is reversed. The case is remanded for sentencing.
GORDON, C.J., FELDMAN, V.C.J., and CAMERON, J., concur.
MOELLER, J., did not participate in the determination of this matter.
Thomas E. Collins, Maricopa Co. Atty. by H. Allen Gerhardt Deputy Co. Atty., Phoenix, for respondent.
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Chief Counsel, Crim. Div. and Barbara A. Jarrett, Asst. Atty. Gen., Phoenix, for amicus curiae State of Ariz.
OPINION
SHELLEY, Judge.
In 1981, David Lee Fowler (petitioner) was convicted of one count of sexual assault. He filed a timely appeal. In March, 1982, he filed a petition for post-conviction relief. Relief was denied by the trial court in 1982 and the petitioner timely filed a petition for review. This petition for review was consolidated with the direct appeal. The conviction was affirmed on direct appeal and review was granted but relief was denied on the petition for post-conviction relief. State v. Fowler, 137 Ariz. 381, 670 P.2d 1205 (App.1983). The mandate issued in 1983.
On February 28, 1986, petitioner filed another petition for post-conviction relief. The State moved to dismiss the petition for post-conviction relief because:
- The petition was filed more than one year from the date of the mandate in the appeal and was therefore precluded pursuant to
A.R.S. § 13-4234(F) (Supp. 1986); and - The petition was a successive petition which failed to set out petitioner‘s reason why petitioner should be allowed to file a successive petition, therefore it should be summarily dismissed pursuant to
A.R.S. § 13-4234(F) .
The trial court granted the State‘s motion and dismissed the petition for post-conviction relief. Petitioner timely filed a motion for rehearing, alleging that
Petitioner presents the following issue on review: do the time limits set forth in
§ 13-4232.
A. A petitioner shall not be given relief under this article based on any ground:
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4. Not raised within a year of the date of the mandate affirming his conviction.
§ 13-4234.
A. A proceeding is commenced by filing a petition with the clerk of the superior court in the county in which the conviction occurred on a form furnished by the clerk of the court. Except for those grounds in paragraphs 4, 5 and 7 of § 13-4231, a petition may not be filed later than one year from the date of the mandate of the appeals court affirming petitioner‘s conviction. It shall bear the caption of the original criminal action to which it pertains. On receipt of the petition, the clerk shall file a copy of the petition in the case file of each original action and promptly send copies to the county attorney and the attorney general, noting the date and manner of sending the copies in the record.
F. There shall be only one petition filed. Except for those claims raised under paragraphs 4, 5 or 7 of § 13-4231, all claims not raised in the petition are forfeited. When a claim under § 13-4231, paragraphs 4, 5 or 7 is raised in a successive petition, the petition must set forth the reasons for not raising the claim within one year of the date of the mandate affirming the conviction. If the petition does not state the reasons and law that substantiate the claim or if the petition does not state the reason why the petition was not brought within the one-year limitation or the petition does state these things but the court finds them lacking in veracity or credibility, the petition shall be dismissed without requiring a response. (Emphasis added)1
The state posits that the statutes prescribing time limits are constitutional because they involve substantive and not procedural matters, and that the legislature has the power to establish substantive rights.
In Arizona, the legislature is vested with legislative power and has plenary power to deal with any subject within the scope of government unless it is restrained by the provisions of the Constitution. Giss v. Jordan, 82 Ariz. 152, 159, 309 P.2d 779, 783-84 (1957). The legislature has all power not expressly prohibited or granted to another branch of the government. Adams v. Bolin, 74 Ariz. 269, 283, 247 P.2d 617, 626 (1952). However, the power to make procedural rules is vested exclusively in the Arizona Supreme Court.
The legislature‘s authority to modify the rule against hearsay, see
Rule 802 , or the exceptions contained inRules 803 and804 , is limited by two important, related principles. First, this court promulgated the rules of evidence pursuant to our exclusive constitutional authority “to make rules relative to all procedural matters in any court.”Ariz. Const. art. 6, § 5(5) ; see Readenour v. Marion Power Shovel, 149 Ariz. 442, 444, 719 P.2d 1058, 1060 (1986); State ex rel. Collins v. Seidel, 142 Ariz. 587, 590, 691 P.2d 678, 681 (1984). Consequently,A.R.S. § 13-1416 is unconstitutional if it conflicts with or “tends to engulf” the rules of evidence. Seidel, 142 Ariz. at 591, 691 P.2d at 682.
Article 29 of the Arizona Criminal Code (
The state maintains that the one-year time limits imposed by the statute are statutes of limitation and are therefore substantive and not procedural. The state cites State v. Fogel, 16 Ariz.App. 246, 492 P.2d 742 (1972), in which we read:
Statutes of limitation in criminal cases are designed primarily to protect the accused from the burden of defending himself against charges of long completed misconduct. Unlike a statute of limitation in a civil case, a criminal statute of limitation is not a mere limitation upon the remedy, but a limitation upon the power of the sovereign to act against the accused. (Emphasis added)
In 21 Am.Jur.2d, Criminal Law, § 223, we also read:
Statutes of limitations in criminal cases are considered acts of grace, or a surrendering by the sovereign of its right to prosecute. They create a bar to prosecution and are therefore not merely statutes of repose as they are in civil cases. A criminal statute of limitations is not a mere limitation upon the remedy, but one upon the power of the sovereign to act against the accused.
Thus it is clear that in criminal law a statute of limitations deals only with the right to commence a criminal case. Time limits prescribed for steps to be taken subsequent to the commencement of a case are not statutes of limitation.
In People v. Smith, 205 P.2d 444, 448 (1949), aff‘d, 34 Cal.2d 449, 211 P.2d 561 (1949), the court stated:
If a rule takes away a vested right it is not procedural. If the rule creates a right such as the right to appeal it may be classified as a substantive matter, but if it operates as a means of implementing an existing right then the rule deals merely with procedure.
The one-year time limit set forth in the statutes does not take away the vested right to post-conviction relief. It merely implements the existing right by setting forth time limits in which to utilize post-conviction relief in order to achieve finality in criminal matters.
In an analogous case having to do with appeals, State v. Birmingham, 96 Ariz. 109, 392 P.2d 775 (1964), the Arizona Supreme Court stated:
We now are of the opinion that while the right to appeal is substantive the manner in which the right may be exercised is subject to control through the use of procedural rules.
Uniformly, the substantive law is that part of the law which creates, defines and regulates rights; whereas the adjec
tive, remedial or procedural law is that which prescribes the method of enforcing the right or obtaining redress for its invasion. It is often said the adjective law pertains to and prescribes the practice, method, procedure or legal machinery by which the substantive law is enforced or made effective. (Emphasis added.)
The case of Matter of Maricopa County Juvenile Action No. JS-834, 26 Ariz.App. 485, 549 P.2d 580 (1976), dealt with the question of whether or not time limits for filing appeals in juvenile matters were procedural or substantive. Prior to the time that the juvenile rules set forth the procedure for appeals, the legislature by statute provided for the procedure to appeal to be governed by the same provisions applicable to appeals from the superior court.
Effective in 1972, the Arizona Supreme Court adopted Juvenile Rule 25, which reads:
(a) An appeal must be taken within 15 days after the final order is entered in the minutes of the juvenile court. There is no requirement that a final order be in writing and signed by the judge before an appeal can be taken.
(b) An appeal may be taken only by filing with the Clerk of the Superior Court a written notice of appeal which specifies the party taking the appeal and designates the particular matter appealed from, together with a concise statement of the grounds for the appeal supported by a memorandum of authorities. If oral argument is requested, it shall be separately indicated at the time of filing the notice of appeal.
In the juvenile case, there were two major differences between the rule and the statute: (1) the juvenile rules do not require a written order for appealability while the statute did so require; and (2) instead of a 60-day time limit for filing an appeal, an appeal had to be filed within 15 days after the minute entry ordering the termination. We held that the juvenile rules superseded, and thus eliminated, the statutory appellate procedure. We stated:
The right to appeal is substantive and can be created only by constitution or statute. State v. Birmingham, 95 Ariz. 310, 390 P.2d 103 (1964), modified on rehearing, 96 Ariz. 109, 392 P.2d 775 (1964). The substantive right to appeal in termination cases has been created by the Legislature in
§ 8-543 and is not subject to alteration or diminution by the Supreme Court. Ibid. However, the procedural aspects of perfecting and processing such an appeal may be and are regulated exclusively by the Supreme Court.Ariz. Const., Art. VI, Sec. 5 ; Arizona Podiatry Assn. v. Director of Insurance, 101 Ariz. 544, 422 P.2d 108 (1966); State v. Birmingham, 96 Ariz. 109, 392 P.2d 775 (1964).When a new substantive right is created by the Legislature accompanied by procedural provisions for implementing it, such as in
A.R.S. § 8-543 , the statutory procedures are regarded as rules of the Supreme Court until modified by rules promulgated by that Court, and when so promulgated, the Court rules take precedence over the previously prescribed statutory procedures. (Emphasis added.)
Juvenile Action No. JS-834, 26 Ariz.App. at 488-89, 549 P.2d at 583-84.2
In Daou v. Harris, 139 Ariz. 353, 358, 678 P.2d 934, 939 (1984), the court held that reasonable time limits placed by the courts upon the exercise of substantive rights are procedural. See also State v. Connery, 99 Nev. 342, 661 P.2d 1298 (1983); State v. Doe, 90 N.M. 568, 566 P.2d 117 (App.1977). But cf. Ramagli Realty Co. v. Craver, 121 So.2d 648 (Fla.1960) (the legislature, not the judiciary, determines the time in which appeals may be taken).
In State ex rel. Collins v. Seidel, 142 Ariz. 587, 591, 691 P.2d 678, 682 (1984), the Arizona Supreme Court stated:
That we possess the rule-making power does not imply we will never recognize a statutory rule. We will recognize “statutory arrangements which seem reasonable and workable” and which supplement the rules we have promulgated. Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973). However, when a conflict arises, or a statutory rule tends to engulf a general rule of admissibility, we must draw the line. The legislature cannot repeal the Rules of Evidence or the Rules of Civil Procedure made pursuant to the power provided us in article 6, § 5. (Emphasis added.)
The one-year time limit provided for in the statutes, being in conflict with Rule 32, is unconstitutional. Our decision is not a criticism of the statute or the policy of finality embodied in it. Indeed, the supreme court may well decide in the future to adopt a similar limitation. We hold only that the statute unconstitutionally invades the province of the supreme court‘s rule-making authority.
The state further asserts that when the legislature enacted §§ 13-4231 through -4240 in 1984, this displaced the post-conviction remedies to which the procedural provisions of Rule 32 applied, and that there is no longer anything for the procedural provisions of Rule 32 to apply to. We disagree with this position. The comment following
By enacting the statutes in question, the legislature did not establish any new substantive rights. Even if we were to assume that the statutes had set up new substantive rights, those rights would be solely found in
Even if we were to assume that
The state argues, however, that even if the one-year time limit for filing a petition for post-conviction relief is procedural, it clearly reflects a “major public policy decision” by our legislature to limit the time for the filing of a petition for post-conviction relief. Without deciding whether or not the statute represents a “major” public policy decision, we find People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978), which is relied upon by the state, to be
Therefore, in the absence of any conflicting rule adopted by this court, and in view of the instant statute‘s mixed policy and procedural nature, we hold that [the statute] does not unconstitutionally intrude into matters exclusively judicial....
196 Colo. at 373, 585 P.2d at 279. In the instant case, as we have previously noted, the one-year time limit provided for in
We must now determine whether or not
In the case of State v. Watson, 120 Ariz. 441, 445, 586 P.2d 1253, 1257 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979), we read:
Severability is a question of legislative intent. We have stated:
“* * * the valid part of a statute will be sustained where the valid and invalid parts are so separate and distinct that it is clear or may be presumed that the legislature would have enacted the former without the latter, if it had known of the invalidity, or, as otherwise stated, if the valid or invalid parts are not so intimately connected as to raise the presumption that the legislature would not have enacted the one without the other, the act will be upheld so far as valid. * * *” (citation omitted)
* * * * *
“To be capable of separate enforcement, the valid portion of an enactment must be independent of the invalid portion and must form a complete act within itself. The law enforced after separation must be reasonable in light of the act as originally drafted. The test is whether or not the legislature would have passed the statute had it been presented with the invalid features removed.” (citation omitted)
The state posits, alternatively, that the order of the trial court should be upheld based on the preclusion provisions of
The state further argues that petitioner‘s motion for rehearing was untimely. This argument was never presented to the trial court and we will not consider it for the first time on review.
For the foregoing reasons, review is granted and relief is granted. This matter is remanded to the superior court with directions to reinstate the petition for post-conviction relief. The state shall be allowed to file an amended response to the petition for post-conviction relief.
BROOKS, J., concurs.
KLEINSCHMIDT, Judge, concurring.
I concur in the result. I do not find the distinctions drawn by many of the cases cited by the majority between what is “procedural” and what is “substantive” to be very helpful. I tend to agree with the observation of the Colorado Supreme Court in Page v. Clark, 197 Colo. 306, 314-15, 592 P.2d 792, 800-01 (1979), that a particular rule may be procedural in one context and substantive in another, depending on the underlying social policies of the competing rule of court and statute. Viewed this way, a very strong argument can be made