Uhlig v. Lindberg, 2

• Decision Date: 15 April 1997
• Docket Number: No. 2,CA-SA,2
• Citation: 189 Ariz. 480,943 P.2d 840
• Parties: , 244 Ariz. Adv. Rep. 27 Diane UHLIG, Petitioner, v. The Honorable John E. LINDBERG, A Judge Pro Tempore of the Superior Court of the State of Arizona, County of Pima, Respondent, and The STATE of Arizona, Real Party in Interest. 97-0011.
• Court: Arizona Court of Appeals

Page 840

943 P.2d 840

189 Ariz. 480, 244 Ariz. Adv. Rep. 27

Diane UHLIG, Petitioner, v. The Honorable John E. LINDBERG, A Judge Pro Tempore of the Superior Court of the State of Arizona, County of Pima, Respondent and The STATE of Arizona, Real Party in Interest.

No. 2 CA-SA 97-0011.

Court of Appeals of Arizona Division 2, Department B.

April 15, 1997.

Redesignated as Opinion and

Publication Ordered May 22, 1997.

Review Denied Sept. 16, 1997.

[189 Ariz. 481] City of Tucson Public Defender by Bradley E. Thrush and Andrew D. Diodati, Tucson, for Petitioner.

Thomas J. Berning, City Attorney by R. William Call and Wayne Roach, Tucson, for Real Party in Interest.

OPINION

PELANDER, Presiding Judge.

In this special action proceeding, Petitioner Diane Uhlig challenges the Respondent Judge's order which reversed the Tucson City Court's dismissal with prejudice, on limitations grounds, of the misdemeanor criminal charges against petitioner. Petitioner contends the Respondent Judge's ruling was arbitrary and in excess of his jurisdiction and legal authority. Although the charges were filed within the one-year limitation period imposed by A.R.S. § 13-107(B)(2), she maintains that once the City Court dismissed the charges without prejudice on the State's motion, § 13-107(F) limited the period for refiling to six months after the date of dismissal and thus barred the State from refiling and serving the charges on petitioner eight months later. The City Court apparently agreed and dismissed the charges with prejudice. We accept jurisdiction of the petition for special action because the issue allegedly is a recurring one "which can be decided on legal principles and statutory interpretation rather than factual resolutions." Lee v. Superior Court, 173 Ariz. 120, 121, 840 P.2d 296, 297 (App.1992). For the reasons stated below, however, we deny relief.

We disagree with petitioner's interpretation of the statute as providing an independent limitation period and instead find that section 13-107(F) grants a six-month "savings" period for the prosecution of all minor offenses and most felonies. It provides:

If a complaint, indictment or information filed before the period of limitation has expired is dismissed for any reason, a new prosecution may be commenced within six months after the dismissal becomes final even if the period of limitation has expired at the time of dismissal or will expire within six months of such dismissal.

We first observe that the subsection applies only when a charge is timely filed initially, as here, within the applicable limitations period. It does not "save" a charge that is filed for the first time after the limitations period has expired. Second, the statute is framed in permissive, not mandatory, terms, allowing but not requiring a new prosecution to be commenced within six months after dismissal. Third, when a charge is timely filed and later dismissed without prejudice, § 13-107(F) grants a six-month savings period in which to refile the charge if the dismissal occurs after the expiration of the limitations period or within six months of its expiration. Thus, as the State correctly notes, § 13-107(F) "allows for an extension of the statute of limitations set forth in A.R.S. § 13-107(B)(2...