State v. Fowler
| Decision Date | 29 October 1987 |
| Docket Number | CA-CR |
| Citation | 752 P.2d 497,156 Ariz. 408 |
| Parties | STATE of Arizona, Respondent, v. David Lee FOWLER, Petitioner. 110210-PR. |
| Court | Arizona Court of Appeals |
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:
1. 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 2. 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 A.R.S. § 13-4234(F) is unconstitutional in that it invades the rule-making power of the Arizona Supreme Court which is exclusively granted to that court under art. 6, § 5 of the Arizona Constitution. The motion for rehearing was denied. Since a constitutional issue was raised, we requested the Attorney General to file an amicus curiae brief. The Attorney General filed a brief and petitioner filed a response.
Petitioner presents the following issue on review: do the time limits set forth in A.R.S. §§ 13-4232(A)(4), 13-4234(A), and 13-4234(F) unconstitutionally invade the procedural rulemaking authority of the Arizona Supreme Court? The questioned statutes read as follows:
§ 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
Rule 32.4, Arizona Rules of Criminal Procedure, sets up the procedure for post-conviction relief. In contrast to the statutes, Rule 32.4(A) states: "A petition may be filed at any time after entry of judgment and sentence." (Emphasis added.) This is the only reference to time for filing in Rule 32.
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. Article 6, § 5 of the Arizona Constitution provides that: "The Supreme Court shall have: ... Power to make rules relative to all procedural matters in any court."
In State v. Robinson, 153 Ariz. 191, 735 P.2d 801, 806-07 (1987), the supreme court stated:
The legislature's authority to modify the rule against hearsay, see Rule 802, or the exceptions contained in Rules 803 and 804, 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 (A.R.S. §§ 13-4231 to 13-4240 (Supp.1986)), dealing with post-conviction relief, was added to the criminal code in 1984. Laws 1984, ch. 303, § 1. Arizona Revised Statutes §§ 13-4231 to 13-4240, except for the time limitations, are for the most part similar to the post-conviction relief procedures found in Rule 32, Arizona Rules of Criminal Procedure, promulgated prior to said statutes.
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 adjective 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. A.R.S. § 8-543 (). The time limits for an appeal from the superior court were 60 days after the entry of an...
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