State v. Mendoza, CR-90-0325-PR
| Decision Date | 07 January 1992 |
| Docket Number | No. CR-90-0325-PR,CR-90-0325-PR |
| Parties | STATE of Arizona, Appellee, v. Jorge G. MENDOZA, Appellant. |
| Court | Arizona Supreme Court |
Defendant Jorge G. Mendoza was convicted of (1) driving while under the influence of intoxicating liquor (DUI) with two prior DUI convictions and (2) driving with a blood-alcohol content (BAC) of 0.10 or more with two prior DUI convictions, both class 5 felonies, in violation of A.R.S. §§ 28-692 and -692.01. The trial court suspended Mendoza's sentence, placed him on probation for three years, and imposed a mandatory 6-month prison term. The court of appeals reversed the convictions, 170 Ariz. 196, 823 P.2d 63, and we granted the state's petition for review. We have jurisdiction pursuant to Ariz.Const. art. 6, § 5(3), and Rule 31.19, Arizona Rules of Criminal Procedure.
Defendant was stopped by a police officer at approximately 1:45 a.m. on May 8, 1988 for erratic driving. The police officer arrested defendant for driving while intoxicated, A.R.S. §§ 28-692, -692.01, after defendant failed several standard field-sobriety tests. The arresting police officer administered a breath test at 2:31 a.m., which indicated that defendant's BAC was 0.21.
On June 8, 1988, a Maricopa County Grand Jury indicted defendant on one count of DUI with two prior DUI convictions and one count of driving with a BAC of 0.10 or more with two prior DUI convictions, both class 5 felonies. Defendant was arraigned on June 24, 1988, and his trial was scheduled for August 9, 1988. At the July 19, 1988 pretrial conference, the trial court postponed the trial until September 19, 1988. This extension of time was not excluded from the "speedy trial" calculation of rule 8.2(a), Arizona Rules of Criminal Procedure.
On September 14, 1988, defendant moved for a trial continuance because defense counsel had a firm trial setting in another case on September 19, 1988. The court granted the motion, continued the trial until October 19, 1988, and excluded the 30-day extension from the rule 8 time calculation. On October 19, 1988, the court continued the trial, sua sponte, to November 1, 1988 because the judge was presiding at another trial. The court did not exclude this time under rule 8. On November 1, 1988, the court again continued the trial, sua sponte, for one day, without excluding the day under rule 8. In addition to the court's sua sponte continuance on November 1, 1988, the state also moved for a continuance because the state's primary witness, the arresting police officer, had reinjured a bullet wound to his foot while waiting to testify at defendant's trial, and he required medical attention. Over defendant's objection, the court granted a continuance until December 2, 1988 and excluded the continuance from the rule 8 time computation.
The state moved for an additional 15-day continuance on November 30, 1988 because the prosecutor was prosecuting another case. On December 1, 1988, Mendoza moved to dismiss the action against him with prejudice pursuant to Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986), because the state was not ready to proceed to trial on December 4, 1988, as required under Hinson. 1 On December 2, 1988, in response to the state's request for a 15-day continuance, the trial court continued the trial until January 1, 1989, excluded the 28-day continuance from the rule 8 time limit, and deferred ruling on defendant's motion to dismiss. The court heard the motion to dismiss on December 30, 1988, requested supplemental briefing on the issue, and continued the trial to January 3, 1989 because January 1, 1989 was a holiday. On January 3, 1989, the court denied defendant's motion to dismiss, but stayed the proceedings so that defendant could pursue a special action.
The court of appeals declined jurisdiction of the special action and trial was set for March 10, 1989. Pursuant to defendant's request, however, the trial court continued the trial until March 13, 1989 so defense counsel could prepare for trial. On March 13, 1989, defendant again moved to continue the trial because defense counsel was still unprepared for trial. The trial court granted the motion, extended the trial date to March 27, 1989, and excluded the continuance from the rule 8 calculation.
Defendant's trial began on March 27, 1989. The jury convicted defendant on both counts. The court placed defendant on probation for 3 years and ordered him to serve a mandatory 6-month prison term.
Defendant appealed his convictions, arguing that (1) the state failed to present any "relation-back" evidence concerning his BAC at the time he was driving, as required by Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989); and (2) the trial court should have dismissed the case against him with prejudice because the continuance granted when the prosecutor was trying another case violated the 150-day Hinson rule.
The court of appeals reversed defendant's convictions, holding that the state failed to present sufficient "relation-back" evidence under Desmond and that the trial court violated the 150-day Hinson "rule." State v. Mendoza, 170 Ariz. 196, 201-203, 823 P.2d 63, 68-70 (App.1990). We granted the state's petition for review on the Hinson issue for the purpose of determining whether Hinson should be modified or overruled. Because we believe the 150-day Hinson rule is unnecessary, improper, and counterproductive, we overrule Hinson 's modification of rule 8 in DUI cases.
We address the following issues on appeal:
1. Should this court modify or overrule Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986)? If so, should this decision be applied retroactively, or would such application constitute an ex post facto law?
2. Is a trial continuance granted by the trial court because the prosecutor is in another trial excludable time under Rule 8, Arizona Rules of Criminal Procedure?
Under rule 8.2(a), "[e]very person against whom an indictment, information or complaint is filed shall be tried by the court having jurisdiction of the offense within 150 days of the arrest or service of summons...." (Emphasis added.) The remedy for a violation of this "speedy trial" time limit is dismissal of defendant's prosecution with or without prejudice. Rule 8.6; State v. Mitchell, 112 Ariz. 592, 593, 545 P.2d 49, 50 (1976). The trial court has sole discretion to determine whether the dismissal is with or without prejudice. Rule 8.6; State ex rel. DeConcini v. Superior Court, 25 Ariz.App. 173, 175, 541 P.2d 964, 966 (1975). If a case against a criminal defendant is dismissed without prejudice and is later refiled by the state, the 150-day time limit begins anew. Johnson v. Tucson City Court, 156 Ariz. 284, 287, 751 P.2d 600, 603 (App.1988); State v. Rose, 121 Ariz. 131, 137, 589 P.2d 5, 11 (1978).
In Hinson v. Coulter, this court modified the application of rule 8.2(a) in DUI cases and held that a DUI defendant must be tried within 150 days of arrest regardless of whether the DUI charge is "scratched" or "dismissed" by the state. 150 Ariz. 306, 311, 723 P.2d 655, 660 (1986). We further held that the appropriate remedy for a violation of this strict application of rule 8.2(a) is dismissal of the DUI charge with prejudice. 150 Ariz. at 311, 723 P.2d at 660. Our primary purpose in fashioning this rule was to accelerate the prosecution of drunk drivers and thereby remove them from our streets. Hinson, 150 Ariz. at 310, 311, 723 P.2d at 659, 660.
The facts in Hinson presented a case of egregious and unjustifiable prosecutorial delay. The defendant had been arrested for DUI 4 times within 4 months, but his trial on 7 felony counts stemming from the arrests did not begin until 21 months after his first arrest. Hinson, 150 Ariz. at 308-09, 723 P.2d at 657-58. This lengthy delay resulted from the common "scratch and refile" practice whereby criminal charges against a defendant are dismissed without prejudice and are refiled at a later date. In Hinson, it was obvious to this court that the prosecutor's office used this practice to circumvent the time requirements of rule 8.2(a). See State v. Guerrero, 156 Ariz. 600, 602, 754 P.2d 327, 329 (App.1988) (Roll, J., dissenting), vacated on other grounds, 159 Ariz. 568, 769 P.2d 1014 (1989). Because we believed it was necessary to end this "widespread prosecutorial abuse" in order to meet the legislature's objective of removing drunk drivers from our streets, Guerrero, 159 Ariz. at 570, 769 P.2d at 1016, we held in Hinson:
[T]he prosecutor must proceed to charge or indict as well as try the defendant within the 150 day limit mandated by Rule 8.2(a) of the Rules of Criminal Procedure if not in custody and 120 days from arrest if in custody pursuant to Rule 8.2(b), Ariz.R.Crim.P., 17 A.R.S. Failure to proceed promptly will result in a dismissal with prejudice, unless the exceptions contained in Rule 8 apply. In any event, the defendant must be tried within 150 days of arrest as provided in Rule 8.2(a), Ariz.R.Crim.P., 17 A.R.S.
Hinson, 150 Ariz. at 311, 723 P.2d at 660.
Secondarily, we created the Hinson "rule" to redress two particular evidentiary problems: the "fleeting" nature of evidence in DUI cases and the tendency of DUI defendants to fail to preserve evidence...
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