76 P.3d 457 (Ariz.App. Div. 2 2003), 2 CA-CR 2001-0533, State v. Givens

• Citation: 206 Ariz. 186,76 P.3d 457
• Docket Number: 2 CA-CR 2001-0533.
• Date: 23 September 2003
• Parties: The STATE of Arizona, Appellee, v. Carlos Norman GIVENS, Appellant.
• Court: Arizona Court of Appeals

Page 457

76 P.3d 457 (Ariz.App. Div. 2 2003)

206 Ariz. 186

The STATE of Arizona, Appellee,

v.

Carlos Norman GIVENS, Appellant.

No. 2 CA-CR 2001-0533.

Court of Appeals of Arizona, Second Division, Department B.

Sept. 23, 2003.

Page 458

[206 Ariz. 187] Terry Goddard, Arizona Attorney General, By Randall M. Howe and E.J. Steinberg, a student certified pursuant to Rule 38, Ariz. R. Sup.Ct., 17A A.R.S., Phoenix, for Appellee.

Susan A. Kettlewell, Pima County Public Defender, By John F. Palumbo, Tucson, for Appellant.

OPINION

ESPINOSA, Chief Judge.

¶ 1 Following a bench trial, the court convicted appellant of aggravated assault, possession of marijuana for sale, possession of a narcotic drug, and possession of drug paraphernalia. The court imposed concurrent prison terms of five years for count two (aggravated assault), 2.5 years for counts seven and eight (drug possession), and one year for count nine (paraphernalia). Appellant challenges only the validity of the sentences imposed on counts eight and nine, claiming the court was required to place him on probation in accordance with A.R.S. § 13-901.01. We disagree and affirm the judgment.

¶ 2 The question whether the trial court had the authority to sentence appellant to prison for possession of narcotic drugs and possession of drug paraphernalia is an issue of law that we review de novo. See State v. Bomar, 199 Ariz. 472, 19 P.3d 613 (App.2001). At the time appellant committed these offenses, § 13-901.01(A) stated: "Notwithstanding any law to the contrary, any person who is convicted of the personal possession or use of a controlled substance as defined in [A.R.S.] § 36-2501 is eligible for probation. The court shall suspend the imposition or execution of sentence and place such person on probation." ¹ Enacted as part of the ballot initiative known as the Drug Medicalization, Prevention, and Control Act of 1996, or Proposition 200, the statute prohibits incarceration of persons convicted of personal possession or use of a controlled substance for the first or second time, requiring that the person be placed on probation. Foster v. Irwin, 196 Ariz. 230, 995 P.2d 272 (2000). In State v. Estrada, 201 Ariz. 247, 34 P.3d 356 (2001), our supreme court held that incarceration is also prohibited when the defendant has been convicted of possession of drug paraphernalia.

¶ 3 Section 13-901.01(B) provides that "[a]ny person who has been convicted of or indicted for a violent crime as defined in [A.R.S.] § 13-604.04 is not eligible for probation as provided for in this section but instead shall be sentenced pursuant to chapter 34 of this title." A violent crime for the purposes of § 13-901.01(B) includes "any criminal use of a deadly weapon or dangerous instrument." A.R.S. § 13-604.04(B). A trial court may not impose a prison sentence unless the defendant has been given sufficient notice of the violent crime that makes him ineligible for probation. State v. Benak, 199 Ariz. 333, 18 P.3d 127 (App.2001). An allegation of a violent offense in the indictment is sufficient notice to the defendant. State v. Hensley, 201 Ariz. 74, 31 P.3d 848 (App.2001). The issue here is the meaning of the words, "has been convicted of or indicted," contained in § 13-901.01(B).

Page 459

[206 Ariz. 188] ¶ 4 The state alleged that the offense of aggravated assault with a deadly weapon was a violent offense under §...