State v. Wilson

• Court: Arizona Court of Appeals
• Writing for the Court: PELANDER, Presiding.
• Citation: State v. Wilson, 207 Ariz. 12, 82 P.3d 797 (Ariz. App. 2004)
• Decision Date: 16 January 2004
• Docket Number: No. 2 CA-CR 2003-0151.,2 CA-CR 2003-0151.
• Parties: The STATE of Arizona, Appellee, v. Janice L. WILSON, Appellant.

82 P.3d 797

207 Ariz. 12

The STATE of Arizona, Appellee, v. Janice L. WILSON, Appellant.

No. -0151.

Court of Appeals of Arizona, Division 2, Department B.

January 16, 2004.

Terry Goddard, Arizona Attorney General, By Donald Conrad and Sylvia E. Goodwin, Tucson, for Appellee.

Patricia A. Taylor, Tucson, for Appellant.

OPINION

PELANDER, Presiding Judge.

¶ 1 Appellant Janice Wilson appeals from the trial court's order granting a new trial rather than dismissing the case on double jeopardy grounds, as she had requested. Because we lack subject matter jurisdiction of the appeal, we dismiss the appeal and instead treat it as a petition for special action. Wilson argues dismissal with prejudice of the underlying charge against her is required under Peak v. Acuna, 203 Ariz. 83, 50 P.3d 833 (2002). We disagree and, therefore, accept jurisdiction but deny relief.

PROCEDURAL BACKGROUND

¶ 2 This is the second appeal in this matter. A jury found Wilson guilty of fraudulent scheme and artifice. Thereafter, the judge who presided over the trial (Judge Banales) granted Wilson's post-verdict motion for judgment of acquittal pursuant to Rule 20(b), Ariz. R.Crim. P., 17 A.R.S. On the state's appeal from that ruling, this court reversed, reinstated the jury's guilty verdict, and remanded the case. State v. Wilson, No. 2 CA-CR 99-0316 (memorandum decision filed Jan. 25, 2001) (Wilson I). We left open the possibility on remand of the trial court's revisiting Wilson's motion for new trial, which Judge Banales had deemed moot after granting the judgment of acquittal. Id. at ¶ 24. Wilson filed a motion for reconsideration in this court and a petition for review with the supreme court, both of which were denied. This court's mandate then issued in December 2001.

¶ 3 On remand, Wilson moved to dismiss the case on double jeopardy grounds. She also renewed her motion for new trial. The trial court (Judge Collins) inexplicably granted both motions. On the state's motion for reconsideration of the dismissal order, however, the trial court changed that ruling, acknowledging that it had failed to follow the reasoning of Wilson I and rejecting Wilson's double jeopardy argument because she "was not acquitted." The trial court also affirmed its prior ruling granting a new trial based on Judge Banales's failure to give a complete reasonable doubt jury instruction as required by State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995). Wilson then appealed.

DISCUSSION

I. Jurisdiction

¶ 4 Before turning to the merits of Wilson's argument, we first address a jurisdictional issue. Without citation of authority or analysis, the state contends "a special action, not a direct appeal ... is the appropriate vehicle for appealing the ruling of the lower court in this case." This court's subject matter jurisdiction is specifically prescribed and limited by statute. See A.R.S. §§ 12-120.21; 12-2101; Hanania v. City of Tucson, 123 Ariz. 37, 38, 597 P.2d 190, 191 (App.1979) ("The appellate court only has such jurisdiction as the legislature has given it."). Thus, even had the state made no jurisdictional argument at all, "[t]his court has the duty to sua sponte raise the question of its subject matter jurisdiction." State v. Poli, 161 Ariz. 151, 153, 776 P.2d 1077, 1079 (App.1989).

¶ 5 The applicable statute on orders from which defendants may appeal in criminal cases is A.R.S. § 13-4033. That statute, inter alia, permits a defendant to appeal from "an order made after judgment affecting the substantial rights of the party." § 13-4033(A)(2). Judge Collins's order currently on appeal was not rendered "after judgment" for purposes of that statute, inasmuch as our decision in Wilson I reversed the judgment of acquittal Judge Banales had ordered. Once our mandate issued on that decision, no judgment existed.¹

¶ 6 Accordingly, the "appropriate vehicle" for Wilson to have sought review was special action, not appeal. See Nalbandian v. Superior Court, 163 Ariz. 126, 130, 786 P.2d 977, 981 (App.1989) ("[A] petition for special action is the appropriate vehicle for a defendant to obtain judicial appellate review of an interlocutory double jeopardy claim."); see also State v. Meza, 203 Ariz. 50, ¶ 18, 50 P.3d 407, ¶ 18 (App.2002) ("The proper vehicle to challenge the denial of a motion to dismiss is not an appeal but a petition for special action."); Hovey v. Superior Court, 165 Ariz. 278, 281, 798 P.2d 416, 419 (App.1990) ("The denial of a motion to dismiss is not an appealable order."); but cf. State v. Choate, 151 Ariz. 57, 57-58, 725 P.2d 764, 764-65 (App.1986) (when judgment previously had been entered, appellate court had jurisdiction under former § 13-4033(2) of interlocutory appeal of double jeopardy claim because it "is constitutionally mandated").

¶ 7 Nonetheless, we may treat this appeal as a special action. See Meza, 203 Ariz. 50, ¶ 18, 50 P.3d 407, ¶ 18 ("`[W]here relief may be granted by extraordinary writ (special action), [an appellate court] may grant the appropriate relief even though the writ applied for ... is not aptly titled.'"), quoting Brown v. State, 117 Ariz. 476, 477, 573 P.2d 876, 877 (1978) (alteration in Meza). In light of the age and procedural history of this case, and because Wilson claims a new trial will subject her to jeopardy a second time, see Abney v. United States, 431 U.S. 651, 660-62, 97 S.Ct. 2034, 2040-42, 52 L.Ed.2d 651, 660-62 (1977), we do so here.

II. Double jeopardy claim

¶ 8 In a two-pronged argument, Wilson contends the double jeopardy provisions of the United States and Arizona Constitutions bar any review of Judge Banales's order and, secondly, any retrial on the charge for which he entered the post-verdict judgment of acquittal. U.S. Const. amend. V; Ariz. Const. art. II, § 10.² The state counters that Wilson "is precluded from raising the issue of double jeopardy because this issue was previously adjudicated" in Wilson I.

¶ 9 Although the state does not specifically articulate the legal basis for its preclusion argument, it apparently is grounded on the law of the case doctrine. Under that doctrine, a court acts within its discretion in "refusing to reopen questions previously decided in the same case by the same court or a higher appellate court" unless "an error in the first decision renders it manifestly erroneous or unjust or when a substantial change occurs in essential facts or issues, in evidence, or in the applicable law." Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 278, 279, 860 P.2d 1328, 1331, 1332 (App.1993). Application of law of the case, although treated "as a procedural doctrine rather than as a substantive limitation on the court's power," generally "promotes an orderly process leading to an end to litigation." Id. at 278, 860 P.2d at 1331. The doctrine does not apply, however, "if the prior decision did not actually decide the issue in question, if the prior decision is ambiguous, or if the prior decision does not address the merits." Id. at 279, 860 P.2d at 1332; see also Jimenez v. Wal-Mart Stores, Inc., 206 Ariz. 424, ¶¶ 12-14, 79 P.3d 673, ¶¶ 12-14 (App.2003); Kadish v. Ariz. State Land Dep't, 177 Ariz. 322, 327-28, 868 P.2d 335, 340-41 (App.1993).

¶ 10 With those principles in mind, we first address the state's position by summarizing our analysis and conclusion in Wilson I. In that decision, we recognized that, when a trial court enters a judgment of acquittal based on insufficient evidence at the close of the state's case, the constitutional protection against double jeopardy precludes review or reversal of that ruling on appeal. Wilson I, ¶ 16, citing Smalis v. Pennsylvania, 476 U.S. 140, 145-46, 106 S.Ct. 1745, 1749, 90 L.Ed.2d 116, 122 (1986). As we also noted, however, "[t]he same is not true for a judgment of acquittal entered after a jury has returned a guilty verdict, when a reversal would merely reinstate that verdict." Id. at ¶ 17, citing United States v. Wilson, 420 U.S. 332, 352-53, 95 S.Ct. 1013, 1026, 43 L.Ed.2d 232, 247 (1975).

¶ 11 Thus, a trial court's grant of a post-verdict judgment of acquittal is subject to appellate review and reversal if the court abused its discretion. See State ex rel. Hyder v. Superior Court, 128 Ariz. 216, 225, 624 P.2d 1264, 1273 (1981); see also United States v. DiFrancesco, 449 U.S. 117, 130, 101 S.Ct. 426, 434, 66 L.Ed.2d 328, 341 (1980) ("A fortiori, the Double Jeopardy Clause does not bar a Government appeal from a ruling in favor of the defendant after a guilty verdict has been entered by the trier of fact."); United States v. Genova, 333 F.3d 750, 756 (7th Cir.2003) (government's appeal of post-trial acquittal is constitutionally permissible when new trial will not ensue, but rather, when reversal merely results in case being remanded for reinstatement of jury's guilty verdict and for sentencing); State v. Carrasco, 201 Ariz. 220, ¶ 1, 33 P.3d 791, ¶ 1 (App.2001) (reviewing for abuse of discretion trial court's post-verdict grant of defendant's renewed motion for judgment of acquittal); State v. Sabalos, 178 Ariz. 420, 421, 874 P.2d 977, 978 (App.1994) ("The state may ... appeal a post-judgment order granting an acquittal."). As the Supreme Court has noted: "No double jeopardy problem was presented in [United States v.] Wilson because the appellate court, upon reviewing asserted legal errors of the trial judge, could simply order the jury's guilty verdict reinstated; no new factfinding would be necessary, and the defendant therefore would not be twice placed in jeopardy." Arizona v. Rumsey, 467 U.S. 203, 211-12, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164, 172 (1984).

¶ 12 In Wilson I, we concluded that Judge Banales had abused his discretion in granting the post-verdict judgment of acquittal on an erroneous legal basis. Wilson I, ¶ 22. Although the judge had found no "`substantial evidence upon which the jury could base a conviction for fraudulent scheme or artifice,'" that ruling was premised...