State v. Pope, 5324-PR
Decision Date | 06 October 1981 |
Docket Number | No. 5324-PR,5324-PR |
Citation | 130 Ariz. 253,635 P.2d 846 |
Parties | STATE of Arizona, Respondent, v. Keith POPE, Petitioner. |
Court | Arizona Supreme Court |
Charles F. Hyder, Former Maricopa County Attorney, Thomas E. Collins, Maricopa County Atty. by Lyle R. Huffman, Deputy County Atty., Phoenix, for respondent.
Ross P. Lee, Maricopa County Public Defender by Anne Kappes, Deputy Public Defender, Phoenix, for petitioner.
The Court of Appeals, Division One, 635 P.2d 861, dismissed defendant's petition for review of a Rule 32 proceeding in the trial court. We granted defendant's petition for review of the dismissal by the Court of Appeals. We have jurisdiction pursuant to Rule 31.19, Rules of Criminal Procedure, 17 A.R.S.
We must answer only one question and that is whether the time limits for the filing of a motion for rehearing pursuant to Rule 32.9(a) of the Rules of Criminal Procedure, 17 A.R.S., are jurisdictional.
The facts necessary to a determination of this issue are as follows. On 25 January 1980, defendant, Keith Pope, filed a petition for post-conviction relief seeking credit on his sentence for presentence incarceration. The trial court denied the petition by minute entry order on 3 April 1980, and the records division of the Maricopa County Public Defender's Office received the order on 7 April. The deputy public defender representing defendant did not become aware of the trial court's order, however, until 6 May 1980, due to a clerical employee's failure to properly forward the order.
On 12 May 1980, the public defender filed a "Motion for Leave to File Delayed Motion for Rehearing." The trial judge, after considering the motion and uncontroverted affidavits submitted by defense counsel and her supervisor, granted the motion. The trial court found that:
Subsequently, the trial court denied the motion for rehearing, and defendant filed a petition for review pursuant to Rule 32.9(c). The Court of Appeals, Division One, dismissed the petition for lack of jurisdiction because of the untimeliness of the motion for rehearing, the court stating:
"Prior decisions of the Arizona courts have clearly established that the timely filing of the motion for rehearing required by Rule 32.9(a) and a petition for review in accordance with the provisions of Rule 32.9(c), are jurisdictional prerequisites to review by this court of trial court dispositions in post-conviction relief proceedings. * * * " State v. Pope, Ariz., 635 P.2d 861, 862 (App.1981).
The relevant rule of criminal procedure provides:
Rule 32.9(a), Rules of Criminal Procedure, 17 A.R.S.
The Court of Appeals has consistently held that the time limits of Rule 32.9, supra, are jurisdictional. State v. Byers, 126 Ariz. 139, 613 P.2d 299 (App.1980); State v. Salazar, 122 Ariz. 404, 595 P.2d 196 (App.1979); State v. Bender, 116 Ariz. 374, 569 P.2d 316 (App.1977); State v. Stelter, 25 Ariz.App. 303, 543 P.2d 141 (1975). All of these cases are premised upon our decision in State v. Gause, 112 Ariz. 296, 541 P.2d 396 (1975), cert. denied 425 U.S. 915, 96 S.Ct. 1515, 47 L.Ed.2d 766 (1976). In that case we stated:
"Appellant admits that he has not complied with Rule 32.9, but presents no valid reason for his non-compliance.
112 Ariz. at 297, 541 P.2d at 397. (emphasis supplied)
Admittedly, this language is supportive of the position taken by the Court of Appeals that the time limits of Rule 32.9 are jurisdictional. We believe, however, that if a "valid reason for * * * non-compliance" is present, then, as here, the trial court may, after being presented with proper evidence, allow a late filing of the papers. The time limits, then, are not jurisdictional. This view is consistent with the purposes of the rule as stated in Rule 1:
Rule 1.2, Rules of Criminal Procedure, 17 A.R.S.
As we have stated:
" State v. Herber, 121 Ariz. 374, 376, 590 P.2d 913, 915 (1979).
Allowing a late filing under the circumstances of this case does not, we believe, constitute a threat to the rights of others nor unduly burden the court. There is no indication that the State was prejudiced by the delay in the filing of the motion for rehearing, or that the trial court was deprived of a "last chance to correct any errors or omissions." State v. Gause, supra, 112 Ariz. at 297, 541 P.2d at 397.
This case is similar to a long-standing civil case involving a default entered as the result of the failure of the secretary of a large law firm to...
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