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Court of Appeals

Division One

Special Action

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December 19, 2006 . . . . . . . . . . 1 CA-SA 06-0195 . . . . . . . . . Robbins v. Darrow/State


In a misdemeanor prosecution under Arizona Revised Statutes (A.R.S.) section 28-1381 (2004), is the 
existence of a prior DUI conviction an element of the offense created by that statute, or instead, is a 
sentencing enhancer?

November 14, 2006 . . . . . . . . . . . . . SA 06-0193 . . . . . . . . . . .  . State v. Talamante

Is a historical prior felony conviction for a sexual offense an element of the crime of violent
sexual assault as set forth in A.R.S. § 13-1423 that the State must be allowed to present
to the jury in its case-in-chief?

October 24, 2006 . . . . . . . . . . . . . . . . SA 06-0106 . . . . . . . . . . . . . . State v. Gottsfield

Do the Arizona Rules of Civil Procedure and Arizona Ethical Rule 4.2 apply to Sexually Violent Persons 
post-commitment discovery proceedings? 

 

October 3, 2006 . . . . . . . . . . . . . . . . . SA 06-0116 . . . . . . . . . . . . . . . . . State v. Gordon

Under Rule 10.4(b), is a party who has exercised a preemptory change of judge before appeal and remand
entitled, after appeal and remand, to request a change of judge as a matter of right?

August 15, 2006 . . . . . . . . . . . . . . . . . SA 06-0006 . . . . . . . . . . . . . . . . . . State v. Rayes

May a trial judge remedy a deprivation of effective assistance of counsel occurring when defendant's attorney fails to communicate a plea offer to him before its expiration by compelling the County Attorney to reinstate the plea offer?

August 15, 2006 . . . . . . . . . . . . . . . . . . SA 06-0130 . . . . . . . . . . . . . . . Lemke v. Rayes

1.      Does the Double Jeopardy Clause prohibit the State from retrying a defendant for felony murder when the jury at the first trial convicted defendant of theft, the lesser-included of the predicate offense of armed robbery, but was unable to reach a verdict as to the felony murder count?

2. Does the doctrine of constitutional collateral estoppel prevent the State from proving that defendant committed armed robbery, for which he was acquitted at the first trial, as the predicate offense at his second trial for felony murder.

May 23, 20006 . . . . . . . . . . . . . . . . .  SA 05-0207 . . . . . . . . . . . . PM v. Gould/Moore

Do the State’s interests in securing an aggravated punishment at a sentencing hearing and the defendant’s due process rights justify a trial court’s order to disclose the victim’s privileged communications with a counselor?  

March 30, 2006 . . . . . . . . . . . . . . . . . SA 05-0022 . . . . . . . . . . . . State v. Schneider/Hanna

In appropriate circumstances, may the attorney-client privilege apply to communications between a government official and a government attorney in a grand jury proceeding in which an indictment is sought against the government official?

February 28, 2006 . . . . . . . . . . . . . . . .  SA 05-0129 . . . . . . . . . . . . . . Slade v. Schneider

Did the trial court properly determine that the records and information sought by Petitioners is protected under the Confidentiality Statute?

February 23, 2006 . . . . . . . . . . . . . . . . SA 05-0303 . . . . . . . . . . . .  Williams v. Miles

May a trial court comply with the bond requirements set forth in A.R.S. § 12-1182(B) by requiring that bond be posted in an amount sufficient to cover the rental value of the premises pending appeal?

February 14, 2006 . . . . . . . . . . . . . . . . SA 05-0266 . . . . . . . . . . . . . . Anderson v. Contes

Is an appellate court remand that may require the presentation of additional evidence on one or more issues in the trial court tantamount to a "new trial" for purposes of Arizona Rule of Civil Procedure 42(f)(1)(E), thereby renewing the parties' right to a peremptory change of judge? 

November 17, 2005 . . . . . . . . . . . . . . .SA 05-0183 . . . . . . . . . . P&P Mehta v. Ariz. DLC

When A.R.S. § 12-911(A)(1) states that a stay of an administrative agency's decision may be obtained upon a showing of "good cause," what does good cause mean?

November 1, 2005 . . . . . . . . . . . . . . .  SA 05-0187 . . . . . . . . . . . .  State v. Jones/Phipps

Is evidence of refusal to perform field sobriety tests admissible in a DUI prosecution?

September 13, 2005 . . . . . . . . . . . . . . . . SA   05-0118. . . . . . . . . . . . . .Phoenix City Prosecutor v. Klausner

Did Derendal v. Griffith, 209 Ariz. 416, 104 P.3d 147 (2005), reverse supreme court precedent that misdemeanor assault cases are not jury eligible?

September 6, 2005 . . . . . . . . . . . . . . . . .  SA 05-0190 . . . . . . . . . . . .  Robinson v. State

Does an indigent criminal defendant possess state and federal constitutional rights to choose non-publically funded private counsel to represent his interests in defending criminal charges?

September 1, 2005 . . . . . . . . . . . . . . . . .  SA 05-0124 . . . . . . . . . . . . .  State v. Blake/Lugo

Did the trial court err in preventing the State from trying in absentia a criminal defendant released on bail who requested and received voluntary departure from immigration officials, based on the reasoning that the voluntary departure procedure was not truly voluntary?

September 1, 2005   .. . . . . . . . . . . . . . . . SA 05-0001 . . . . . . . State v. Foreman/Phillips

Does A.R.S. § 13-4426.01, which precludes discovery of a victim impact statement before it is given and cross-examination, violate the Sixth, Eighth and Fourteenth Amendment? 

August 30, 2005 . . . . . . . . . . . . . . . . . . . . . SA 05-0153 . . . . . . . . . . Astorga v. Greer

Is a state superior court required to stay proceedings before it pending a determination by a tribal court whether it had jurisdiction over a parallel action filed by plaintiffs in tribal court?

August 30, 2005 . . . . . . . . . . . . . . . . . . . . . SA 05-0112 . . . . . . . . Snyder v. State

Does a case qualify for the Criminal Rule 8.2(a)(3) speedy trial exception for a "complex case" because DNA evidence might be admitted at trial, and the record shows that all delay related to the DNA evidence was caused either by unexcused police delay in obtaining a sample or unexplained laboratory delay in testing?

August 25, 2005 . . . . . . . . . . . . . . . . . . . . SA 05-0082 . . . . . . . . . . . .  State v. Levinson

Are defendants charged with misdemeanor DUI’s entitled to a jury trial?

August 4, 2005  . . . . . . . . . . . . . . . . . . . . .  . SA 05-0089 . . . . . . . . . . . . .  Lana A. v. State 

May a juvenile be subject to predisposition detention when the juvenile was not afforded the right to counsel at her initial incorrigibility hearing?

June 23, 2005 . . . . . . . . . . . . . . . . . . . . .SA 05-0061 . . . . . . . Newkirk v. State

Does Derendal require jury trials on allegations of prior convictions?

December 14, 2004 . . . . . . . . . . . . . . . .   SA 04-0140  . . . . . . . . . . .  Waters v. O'Connor/State

How should "clerical status" be determined for purposes of A.R.S. § 13-406(2)(3)?

October 14, 2004 . . . . . . . .  . . .. . . . . . .  SA 04-0180 . . . . . . . . . . .  State v. Conn/Tinnell

Can the state give pretrial notice of aggravating factors under Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004)?

September 21, 2004 . . . . . . . . . . . . . SA 04-0183 . . . . . . . . . . . . . . .Aragon v. Wilkinson

Did the recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), coupled with a defendant’s refusal to waive her right to a jury trial on the existence of factors sufficient to allow the court to impose an aggravated sentence, justify the State’s motion to withdraw from a plea agreement entered with that defendant and previously accepted by the superior court?

August 10, 2004 . . . . . . . . . . . . . . .  SA 04-0110 . . . . . . . . . . . . . .  State v. Dairman

May the trial court appoint a victim’s representative for a minor victim when the defendant is not part of the victim’s “immediate family” as provided in A.R.S. § 13-4403 (C) (2001)?


May 27, 2004 . . . . . . . . . . . . . . . .  SA 04-0052 . . . . . . . . . . . . . . Master Financial v. Hillman

Can a plaintiff pursuing a money judgment against a defendant whose residence is unknown but whose last known residence was within the state, or who has avoided service, serve the defendant by publication in accordance with the requirements of Rule 4.1(n) of the Arizona Rules of Civil Procedure? 

May 20, 2004 . . . . . . . . . . . . . . . .  SA 04-0051 . . . . . . . . . . . . . .  John C. v. Sargeant/ADES


When the State is attempting to sever a parent's rights to his child due to the length of his incarceration, may his right to a jury trial pursuant to A.R.S. § 8-223 be conditioned on his ability to personally appear when federal authorities refuse to transport him to the severance proceeding? 

April 22, 2004 . . . . . . . . . . . . . . . . .  SA -03-0289 . . . . . . . . . . . . . .  Levinson v. Lopez

Can an amended complaint that adds a defendant relate back to the date of the original complaint under Rule 15(c) of the Arizona Rules of Civil Procedure without any showing of mistake concerning the identity of the party to be added? 

March 30, 2004 . . . . . . . . . . . . .  SA 04-0054 . . . . . . . . . . . . . . .  . . .  O'Connor v. Hyatt/State

If a person is placed on probation for a first or second conviction under Proposition 200 and later violates the terms of her probation, may she be given jail time as a condition of her reinstated probation under the pre-November 2002 version of section 13-901.01E?

March 18, 2004 . . . . . . . . . . .   SA 03-0268 . . . . . . . . . . . . . . .  . Jackson v. State

Did the trial court err by placing Jackson on lifetime probation as a result of a conviction of public
sexual indecency, a class 1 misdemeanor, even though public sexual indecency is an offense included
in title 13, chapter 14 of the A.R.S.?

February 26, 2004 . . . . . . . . . . SA 03-0188  . . . . . . . . . . . . . . Simpson v. Owens/State

Is a bail hearing required to determine if "the proof is evident or presumption great," and if so, what is
the standard of proof?  

January 29, 2004 . . . . . . SA 03-0171 . . . . . . . . Orsett/Columbia v. Superior Court

Does A.R.S. § 12-1113 permit a county to condemn a mere leasehold interest in a portion of
a privately-owned shopping center? 

December 4, 2003 . . . . . . . .   SA 03-0185  . . . . . . . . . . Parent v. State

May a sentencing court permit the State to allege prior felony convictions for sentence enhancements after another superior court judge has already accepted the defendant’s guilty plea without any allegations of prior convictions?

October 23, 2003 . . . . . . . . . SA 03-0146 . . . . . . . . .  Behrens v. Behrens

Does good and sufficient cause under A.R.S. § 12-406(B)(3) allow a trial court to transfer venue even after the case was initiated in a proper county? 

October 8, 2003 . . . . . . . . SA 03-0150 . . . . . . . . . . . . .  Standhardt v. Superior Court

Does Arizona's prohibition of same-sex marriages violate petitioners' rights under the federal 
and state constitutions to substantive due process, equal protection, or privacy?

October 1, 2003 . . . . . . SA 02-0108 . . . . . . . . . . . . . . . . . . . . Bailey v. City of Mesa

When a governmental entity proposes to condemn and take private property that will be conveyed to private parties for redevelopment purposes, does Article 2, Section 17 of the Arizona Constitution prevent such a taking unless the anticipated public benefits and characteristics substantially outweigh the private nature of the end use? 

September 23, 2003...............SA 02-0270...........................................Raney v. Superior Court

1.  Must the state allege a previous conviction for a defendant to be sentenced under A.R.S. 
§ 13-901.01(F)?

2.  Does a preparatory drug offense qualify as a prior conviction under A.R.S. § 13-901.01?

September 23, 2003...............SA 03-0001..................Raye v. Phoenix City Prosecutor's Office

Does a person charged with violating A.R.S. § 4-244(33) ("underage drinking and driving") have
a right to trial by jury? 

September 23, 2003...............SA 03-0157................................................Cervantes v. State


1.  Whether Criminal Rule 15.1 prohibits the State from copying pornographic material to provide to
the defense for litigation.

2.  Who has the burden of proof in seeking a protective order under Criminal Rule 15.5(a)?

September 16, 2003...............SA 03-0085.......AZ Independent Redistricting v. AZ Minority

1.  Do the members of the Arizona Redistricting Commission possess a legislative privilege?

2.  Does the privilege extend to protect communications with independent contractors hired to
assist the commissioners?

3.  Does the privilege apply to protect documents?

4.  Did the Commission waive any legislative privilege shielding communications with consultants
by designating these consultants as expert witnesses? 

September 2, 2003..................SA 03-0152.......................................................State v. Flath


Do the amendments effectuated by Proposition 103 to Article 2, Section 22, of the Arizona
Constitution and A.R.S. § 13-3961 violate the ex post facto provisions of the state and federal
constitutions? 

June 17, 2003 .........................SA 03-0087 .....................................................Goy v. Jones


Was the Superior Court correct in concluding that a law-enforcement officer testifying during a
criminal trial may read his report as evidence pursuant to Arizona Rule of Evidence ("Rule") 803(5)
permitting such hearsay if the hearsay is of a nature of a "recorded recollection"?

June 12, 2003..........................SA 03-0018.......................................................Sun Health v. North

1.  Does the statutory peer review privilege protect from discovery (a) the statement of reasons for
suspending a doctor; and (b) the medical charts of plaintiff's decedent?

2.  Does the privilege apply to requests for admission of otherwise privileged information?

3.  Does the privilege unconstitutionally abrogate plaintiff's right of action? 

May 8, 2003............................SA 03-0054.................................................................State v. Reyes


A waiver of confidentiality signed by inmates as a condition of participation in a sex offender treatment
program authorizes the disclosure of information but indicates that the waiver does not authorize the 
release of information relating to undocumented sexual misconduct.  The SVP statute requires the
state agency with jurisdiction over the alleged SVP to disclose all psychological and psychiatric 
assessments done on the alleged SVP.  Some of the assessments done in the sex offender treatment
program contain evidence of undocumented sexual misconduct by the alleged SVP. Do the terms
of the waiver prevent the state from disclosing information obtained in the sex offender treatment
program, when the statute compels their disclosure? 

April 8, 2003...........................SA 03-0014.................................................................Boynton v. State


Is the criminal offense of luring a minor for sexual exploitation a "dangerous crime against children"?

March 20, 2003.......................SA 02-0277..................................................................Ugalde v. State


1.  Does A.R.S. § 36-3706 mandate that a person accused of being a sexually violent person (SVP)
must be tried within 120 days after the filing of the petition?

2.  What is the test to be applied by trial courts to determine whether a SVP petition which remains
untried after 120 days must be dismissed?

February 27, 2003 ..................SA 02-0337..................................................................Montero v. State


Did the State have to prove that Defendant's conviction was a "violent" crime at the time it was charged to
later allege that the charge disqualified Defendant for mandatory probation on a drug related charge?

February 7, 2003  . . . . . . .. . . SA 03-0002  . . . . . . . . . Roman Catholic Diocese of Phoenix v. Superior Court

Does the 1994 amendment to the civil attorney-client privilege statute also apply to the criminal attorney-client privilege statute?

January 30, 2003  . . . . . . . . . . . . . . . . . SA 02-0153  . . . . . . . . . . . . . . . . . . Otel H. v. Barton/State

Whether Rule 23(D), Arizona Rules of Juvenile Procedure, allows the juvenile court to base a finding of probable cause for pre-adjudication detention solely on a bare-bones Arizona Traffic Ticket and Complaint?

November 21, 2002   . . . . . . . . . . . . . .SA 02-0250  . . . . . . . . . . . . . . . . . . Jacobson v. Anderson

Is a person declared indigent by the court entitled to have the opportunity to demonstrate to the court that her proposed expert witnesses are reasonably necessary for her defense and, if so, should the experts be retained at government expense?

November 7, 2002  . . . . . . . . . . . . . . . SA 02-0164  . . . . . . . . . . . . . . . . . . Cherry v. Araneta

Can the trial court determine, as a matter of law, that a defendant has a prior conviction for a "violent crime," and is therefore not eligible for probation pursuant to Proposition 200?

October 29, 2002  . . . . . . . . . . . . . . . .SA 02-0208  . . . . . . . . . . . . . . . . . . Demarce v. State

Did the trial judge abuse her discretion by rejecting the defendant's request to revoke his probation and sentence him to a term of incarceration with the Department of Corrections?

July 23, 2002 . . . . . . . . . . . . . . . . . . . SA 02-0125 . . . . . . . . . . . . . . . . . . . State v. Landeros

Under Arizona Rule of Evidence 609(a)(1), can the state impeach a defendant with a prior conviction sentenced under A.R.S. § 13-901.01?

June 17, 2002  . . . . . . . . . . . . . . . . . . SA 02-0073  . . . . . . . . . . . . . . . . . . . . . . May v. Bayless

Is the surcharge levied pursuant to A.R.S. § 16-954(C) constitutional?

April 4, 2002  . . . . . . . . . . . . . . . . . . . SA 01-0312  . . . . . . . . . . . . . . . . . . . . Guthrie v. State

In DUI prosecutions, may a defendant introduce evidence, that, although for most individuals the amount of alcohol in 210 liters of their breath is equal to the amount in 100 milliliters of their blood, his individual ratio was greater due to various factors?

April 2, 2002  . . . . . . . . . . . . . . . . . . .SA 01-0186  . . . . . . . . . . . . . . . . . . . .Flood Control v. Paloma

Does A.R.S. § 12-821, which establishes a one-year statute of limitations for bringing "all actions" against any public entity, supercede Maricopa County Municipal Water Conservation Dist. No. 1 v. Warford, 69 Ariz. 1, 206 P.2d 1168 (1949), which held that an inverse condemnation action was timely if brought within the ten-year period necessary for establishing a prescriptive easement? 

March 21, 2002  . . . . . . . . . . . . . . . . SA 01-0246  . . . . . . . . . . . .. . . . . . . . Welch-Doden v. Welch-Doden

Whether, and on what terms, home state jurisdiction has priority under the UCCJEA when different states compete for initial jurisdiction of a child custody dispute?

February 28, 2002  . . . . . . . . . . . . . . SA 01-0160, SA 01-0163, SA 01-0165 . . . . . . . Haas v. Colosi

May the juvenile court appoint the public defender to represent indigent juveniles charged with incorrigibility offenses where there is no risk of detention, under A.R.S. §§ 11-584 and 8-221?

February 7, 2002  . . . . . . . . . . . . . . . SA 01-0290  . . . . . . . . . . . . . . . Romley v. Porras-Salazar

Is a superior court order that the victim be fingerprinted to resolve a motion to determine counsel in violation of the Victim's Bill of Rights?

February 5, 2002  . . . . . . . . . . . . . . . .SA 01-0168  . . . . . . . . . . . . . Blake v. State

Do (1) A.R.S. § 13-3994(A), (F), and (G) require a mandatory initial confinement period of 120 days, and if so, (2) is such a confinement period unconstitutional?

January 15, 2002 . . . . . . . . . . . . . . . SA 01-0247 . . . . . . . . . . . . . .Encinas v. Suarez

Does an order permitting a party's relative to ask questions and make arguments on that party's behalf conflict with the supreme court's jurisdiction to regulate the practice of law?

December 31, 2001  . . . . . . . . . . . . SA 01-0245  . . . . . . . . . . . . . .Fisher v. State

Is sex offender registration for the lifetime of the offender?

December 11, 2001 . . . . . . . . . . . . .SA 01-0251  . . . . . . . . . . . . . .Van Herreweghe v. State

Does the bail schedule statute, A.R.S. § 22-424, violate a defendant's due process rights by omitting felony DUI from those offenses for which release can be secured by posting the scheduled bail amount?

December 11, 2001 . . . . . . . . . . . . . SA 01-0262  . . . . . . . . . Dahnad v. AZ State Bd. of Dental Examiners

Does the Board of Dental Examiners have the statutory and constitutional authority to summarily suspend a dental license without a hearing?

November 29, 2001  . . . . . . . . . . . .SA 01-0237 . . . . . . . . . . . . . . .Arpaio v. ADOC

Does the local sheriff or the department of corrections have the duty to transport prison inmates to court for civil cases?

November 20, 2001 . . . . . . . . . . . . .SA 01-0164 . . . . . . . . . . . . . . State v. Medina

In commitment proceedings under the Sexually Violent Person's Act, is a Frye hearing needed to determine whether testifying mental health experts may rely on actuarial models in forming their opinions regarding the likelihood that a person will engage in acts of sexual violence?

August 30, 2001 . . . . . . . . . . . . . . . .SA 01-0130 . . . . . . . . . . . . . City of Scottsdale v. Adair

Can a phlebotomist be qualified under A.R.S. § 28-1388(A) to draw blood for purposes of determining the alcohol concentration of a person suspected of driving under the influence?

August 16, 2001 . . . . . . . . . . . . . . . . SA 01-0072 SA 01-0109. . Andrews v. Hon. Willrich

Do A.R.S. §§ 8-302(B) and 13-501(B) violate the separation of powers doctrine by vesting exclusive authority in the prosecutor to determine whether juveniles in specified circumstances will be tried as adults?. 

August 9, 2001 . . . . . . . . . . . . . . . . . SA 01-0097  . . . . . . . . . . . . Wozniak v. Hon. Galati/State

1.  Does A.R..S. section 13-901.01 mandate a sentence of probation for conviction of A.R.S. section 28-1381(A)(3)(driving while there is a drug or its metabolite in the body)?

2.  Do the results of a drug screening test fail the admissibility test for scientific evidence set forth in Frye?

3.  Is a chemical analysis of a person's blood, breath, or urine necessary to support a conviction for driving while having a drug or its metabolite in the body?

March 8, 2001 . . . . . . . . . . . . . . . . . . SA 00-0180 . . . . . . . . . . . . Foster v. Arizona State Land Dep't

Pursuant to A.R.S. section 37-301(A), did Petitioner timely protest a proposed auction of public trust land when the protest was made 31 days after publication in a newspaper of general circulation and 30 days after publication in a newspaper nearest the public property?

October 3, 2000 . . . . . . . . . . . . . . . . . SA 00-0198 . . . . . . . . . . . . Walter v. Wilkinson/State

Does use of the term "simultaneously" in section 36-3703(A) of the Sexually Violent Persons Act require that the mental health experts appointed to examine an SVP detainee conduct their examinations at exactly the same time, or may the experts examine the detainee individually and independently?

September 12, 2000 . . . . . . . . . . . . . . SA 00-0054 . . . . . . . . . . . . State v. Porter

May an unlicensed contractor, convicted of the misdemeanor of acting as a residential contractor without a license, be required, by order of restitution, to reimburse a contracting homeowner for the economic damages that the homeowner suffered from the contractor's incomplete and faulty work?

August 24, 2000 . . . . . . . . . . . . . . . . . SA 00-0189 . . . . . . . . . . . . State v. Clements

Is a unanimous verdict of an eight-person jury required before civilly committing a person subject to the Sexually Violent Persons Act?

June 13, 2000 . . . . . . . . . . . . . . . . . . . SA 00-0039 . . . . . . . . . . . . . State v. Roche

Does the corpus delicti rule apply to a preliminary hearing?

June 13, 2000 . . . . . . . . . . . . . . . . . . . SA 00-0103 . . . . . . . . . . . . . State v. Thompson

May a person subject to detention under the Sexually Violent Persons Act refuse to be deposed by the state in advance of the hearing on his possible commitment?

June 6, 2000 . . . . . . . . . . . . . . . . . . . . SA 00-0109 . . . . . . . . . . . . . Holt v. Maricopa County

May an individual subject to a psycho-sexual evaluation as required by the Sexually Violent Persons Act be held in contempt of court for refusing to undergo the evaluation?