Heath v. Kiger
| Decision Date | 24 May 2007 |
| Docket Number | No. 1 CA-SA 06-0197.,1 CA-SA 06-0197. |
| Citation | 215 Ariz. 119,158 P.3d 248 |
| Parties | Sarah M. HEATH, Petitioner, v. The Honorable William T. KIGER, Judge of the Superior Court of the State of Arizona, in and for the County of Yavapai, Respondent Judge, State of Arizona, Real Party in Interest. |
| Court | Arizona Court of Appeals |
Damon A. Rossi, Attorney at Law by Damon A. Rossi, Prescott, Attorney for Appellant.
Sheila S. Polk, Yavapai County Attorney By S. Lee White, Deputy County Attorney, Prescott, Attorneys for Appellee.
¶ 1 This special action arises from the trial court's granting of the Yavapai County Attorney's Office's (State) motion to hold Sarah M. Heath (Petitioner) without bond, pursuant to Article 2, Section 22.A.2, of the Arizona Constitution. Petitioner argues that the trial court erred because at the time she was ordered detained, she was released on her own recognizance (OR) and not "admitted to bail" under Art. 2, § 22.A.2. We previously issued an order accepting jurisdiction, granting relief and stating that Art. 2, § 22.A.2, of the Arizona Constitution did not prevent a trial court from exercising its discretion when considering whether to grant Petitioner release under appropriate circumstances. We also stated that a written decision would follow, this is that decision.
¶ 2 On March 29, 2005, in CR82005-0216 (2005 case), Petitioner was arrested and charged with Possession or Use of Dangerous Drugs, Possession of Marijuana and Possession of Drug Paraphernalia. On May 2, 2005, Petitioner entered into a plea agreement wherein she pled guilty to Possession or Use of Dangerous Drugs, a class four felony; Possession of Marijuana, a class six felony; and Possession of Drug Paraphernalia, a class six undesignated felony. The plea agreement included a section exonerating any bond and releasing Petitioner OR. The court approved the terms of the plea agreement, exonerated the bond and released Petitioner OR.
¶ 3 The plea agreement also provided that Petitioner would be allowed to participate in the Treatment Assessment Screening Center (TASC) Program and sentencing would be deferred. The plea agreement further stated that Petitioner would be deemed to have failed the TASC program if she "fail[ed] to obey all laws . . . prior to sentencing."
¶ 4 After Petitioner completed the TASC program, the State filed a motion to set the matter for sentencing. The court initially set Petitioner's sentencing for May 15, 2006, but Petitioner failed to appear. The court reset Petitioner's sentencing for June 5, 2006.
¶ 5 On June 4, 2006, the day before her sentencing date, Petitioner was arrested for Possession or Use of Dangerous Drugs, a class four felony; Possession or Use of Marijuana, a class six felony; and Possession or Use of Drug Paraphernalia, a class six felony.
¶ 6 The next morning, in case number CR82006-0397 (2006 case), Petitioner posted bond and was released from jail. That afternoon, Petitioner was sentenced in the 2005 case for Possession of Drug Paraphernalia, a misdemeanor.
¶ 7 On June 22, 2006, the State filed a Motion to Hold Defendant Non-Bondable in the 2006 case and requested an evidentiary hearing. On July 10, 2006, the trial court denied the motion without prejudice because the Petitioner had been sentenced to a misdemeanor in the 2005 case. Subsequently the State filed a second Motion to Hold Defendant Non-Bondable and again requested an evidentiary hearing to present evidence that the "proof is evident or presumption great" that Petitioner committed the felony charges while on release from the 2005 case and again cited to Art. 2, § 22.A.2.
¶ 8 Petitioner responded and requested the trial court deny the motion because she was not "admitted to bail" under Art. 2, § 22.A.2 in the 2005 case at the time she allegedly committed the offenses in the 2006 case.
¶ 9 An evidentiary hearing was held on August 25, 2006, in the 2006 case. At the conclusion of the hearing, the trial court found Petitioner was on felony release when the State charged her in the 2006 case. It also found "there [was] proof evident or presumption great as to possession of drug paraphernalia," but it did not find that the State had met that standard on the other charges. The trial court ordered Petitioner "held without bail until further order of the court."
¶ 10 Petitioner filed this special action asking this court to review the trial court's decision to hold her without bond.
¶ 11 This court's special action jurisdiction is discretionary. State v. Super. Ct. (Norris), 179 Ariz. 343, 344, 878 P.2d 1381, 1382 (App.1994). (Citation omitted.) We accept jurisdiction because this matter raises an issue of first impression and statewide importance. State v. Brown (McMullen), 210 Ariz. 534, 537, 115 P.3d 128, 131 (App.2005).
¶ 12 Under Art. 2, § 22.A.2, of the Arizona Constitution "[a]ll persons charged with crime shall be bailable by sufficient sureties, except: . . . For felony offenses, committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the presumption great as to the present charge." (Emphasis added.) There is no definition for "admitted to bail." Therefore, the issue is whether "admitted to bail" includes OR release.
¶ 13 Arizona Rules of Criminal Procedure 7.1.a defines "[o]wn recognizance" as a "release without any condition of an undertaking relating to, or deposit of, security." Additionally, Rule 7.1.c defines "secured appearance bond" as "an appearance bond secured by deposit with the clerk of security equal to the full amount thereof." The comments to this rule state that "`secured appearance bond' is used instead of `bail.'" Moreover, the comments to Rule 7.1.b state "[t]he rule substitutes for `bail bond' and `bail' the term `appearance bond' which emphasizes the role of unsecured bonds." Clearly, Arizona distinguishes between being released OR and being released with the posting of a secured or unsecured appearance bond or bail.
¶ 14 Additionally, many current Arizona statutes differentiate between being released OR and being released on bail. See, e.g., Arizona Revised Statutes (A.R.S.) Section 13-604.R (Supp.2006) () (emphasis added); § 13-3967.A (Supp.2006) () (emphasis added); § 13-4082 (2001) () (emphasis added); see also Arizona Rules of Criminal Procedure 7.2.b(1) () (Emphasis added.)
¶ 15 Petitioner argues that she was released OR and thus not "admitted to bail" under Art. 2, § 22.A.2. We agree. At the time Petitioner was arrested in the 2006 case, the plea agreement clearly stated that she was released OR. Because Arizona distinguishes between being released OR and bail release, she was not "admitted to bail" at the time of her arrest in the 2006 case.
¶ 16 The State cites the following definition of bail from Pelekai v. White, 75 Haw. 357, 861 P.2d 1205, 1209, n. 3 (1993) (citing Hawaii Revised Statute section 804-3 (Supp.1992)): "`Bail' includes release on one's own recognizance, supervised release, and conditional release." Based on that definition, the State argues "that an individual may be admitted to bail by a court and released without bond on either his own recognizance or into the custody of another." However, the State's arguments based on Pelekai are misplaced because Hawaii's definition of bail includes being released OR, whereas Arizona statutes clearly differentiate between being released OR and being released on bail.
¶ 17 In this case, it is clear that Petitioner was not released pursuant to a secured appearance bond or bail at the time of her second arrest. Therefore, she was not "admitted to bail" pursuant to Art. 2, § 22.A.2 and was not barred by that provision from being released on bail. However, under Arizona Rules of Criminal Procedure 7.2.a, the trial court had discretion to consider whether to grant Petitioner release and impose any conditions outlined in Rule 7.3.b.
¶ 18 The dissent first claims that the interpretation of the "phrase [admitted to bail], when used in laws prohibiting release, is that it refers to any type of eligibility for court-sanctioned release." Infra ¶ 26. However, the dissent does not cite legal authority for that holding and a review of the statutes and court rules effective in 1970 when Art. 2, § 22.A.2 was amended does not indicate that the phrase "admitted to bail" included both security and being released OR. See, e.g., Arizona Rules of Criminal Procedure 38.A (1956) (); id. at C ( "[b]ail shall be by written undertaking executed by the defendant, and except as provided in Rule 55, by not less than two sureties"); id. at 56 () (...
To continue reading
Request your trial
- Karbal v. Arizona Dept. of Revenue
-
Heath v. Kiger
...special action with the court of appeals, which accepted jurisdiction and granted relief. Heath v. Kiger, 215 Ariz. 119, 120 ¶ 1, 158 P.3d 248, 249 (App.2007). The court determined that Article 2, Section 22.A.2, does not apply to defendants released on their own recognizance. Id. at 123 ¶ ......