Rule 41, Form 28(a)
AOC Contact: Mark Meltzer
This amendment to Rule 17.1(a) permits the entry of pleas of guilty and no contest to a misdemeanor or a petty offense in limited jurisdiction courts by mail, and without a personal appearance. The court may allow a defendant to utilize this procedure if a personal appearance by the defendant would constitute an undue hardship, such as illness, physical incapacity, substantial distance to travel, or incarceration.
The entry of a guilty plea by mail is not permitted in specified categories of cases and circumstances. These categories are: (1) cases involving a victim; (2) cases in which the court may impose a jail term, unless the defendant is sentenced to time served, or the defendant is currently incarcerated and the proposed term of incarceration would not extend the period of incarceration and would be served concurrently; (3) cases in which the court may sentence the defendant to a term of probation; (4) offenses for which A.R.S. § 13-607 requires the taking of a fingerprint upon sentencing; and (5) when this method of entering a plea would not be in the interests of justice.
The entry of a plea by mail must comply with the requirements of Rule 17, such as a waiver of rights and the establishment of a factual basis. Accordingly, a plea by mail form has been adopted as Rule 41, Form 28(a), and this must be used for entry of a plea by mail.
Impact: Rule 17.1(a)(4) requires that a local court establish a policy for participation by the prosecutor in pleas by mail.
Judges, clerks, and court administrators must assure that the plea by mail procedure is not utilized for cases or in circumstances where the defendant is not permitted to enter a plea by mail.
Each court must determine how it will make Form 28(a) available to a defendant, for example, whether it wishes to post the form on a court website, or whether it will provide the form in response to a telephonic or written request from the defendant.
When correctly formatted, Form 28(a) should consist of four pages. Page one of Form 28(a) contains instructions for the defendant, and this page need not be filed. The defendant completes pages two (which contains the case caption) and three of the form, and the top of page four. A notary signs page four. Additional information is added to page four by the judge and by a court clerk.
The defendant is advised to follow the instructions completely and carefully. The defendant must refer to his or her copy of the complaint when completing the form. Self-represented litigants will typically use the plea by mail procedure at an early stage of the proceedings, and before interacting with the prosecutor. Accordingly, the form informs the defendant that if there is more than one offense alleged in the complaint, a defendant who submits the form is pleading guilty or no contest to each of the criminal offenses in the complaint.
The form includes spaces:
The defendant’s signature on the plea by mail form must be notarized. It is expected that payment of a fine will be processed as if the plea was taken and sentence was imposed in open court or by telephone.
- On the second page, for the defendant to indicate the hardship that allows a plea by mail.
- For the defendant to indicate information he or she would like the judge to consider in determining an appropriate sentence.
- For the judge to accept the plea by mail by adding the judge’s signature, the date, and the offense(s) for which the defendant is found guilty.
- For the judge to write the defendant’s sentence.
- For a certification for the clerk. Once the judge’s section is complete, the clerk certifies that a copy of the document will be mailed to the defendant at the address that the defendant has provided.
|Criminal Rules 31.13, 31.18, 31.19 ARCAP Rules 13, 22, 23
AOC Contact: Mark Meltzer
|Court of Appeals
Summary: Substantially parallel amendments are provided in these corresponding criminal and civil appellate rules.
Impact: No impact on the trial courts. Note in the Order concerning these changes that a proposed amendment in this rule petition to Rule 11(a) of the Rules of Civil Procedure concerning signatures on documents submitted electronically was not adopted, consistent with the amendment in R-11-0012 striking the text of Supreme Court Rule 124.
- Ariz. R. Crim. P. Rule 31.13 and ARCAP Rule 13(d):
- Ariz. R. Crim. P., Rule 31.13(a). Appellate briefs and appendices may now be filed electronically, as well as in person or by mail.
- Ariz. R. Crim. P. Rule 31.13(c) and ARCAP Rule 13(d)(2). If an appendix is included with an electronically filed appellate brief, and if the appendix contains multiple documents, it must also include a table of contents with electronic bookmarks to the documents contained in the appendix and listed in the table of contents.
- Ariz. R. Crim. P. Rule 31.18 and ARCAP Rule 22:
- Subsection (b) of these respective rules requires a request for extension of time to file a motion for reconsideration be filed in the appellate court that issued the decision or opinion in question.
- A new subsection (c) has been created regarding the response to a motion for reconsideration.
- Subsection (d) requires that the form, length and contents of a motion for reconsideration conform to the provisions of Criminal Rule 31.12 or Civil Appellate Rule 6(c) “not otherwise suspended by any Administrative Order of the Supreme Court.”
- Ariz. R. Crim. P. Rule 31.19 and ARCAP Rule 23:
- Subsection (a) requires petitions for review and cross-petitions for review from a decision of the Court of Appeals be filed in the Supreme Court instead of in the Court of Appeals. Motions to extend the time to file are now in subsection (a) of these rules, and these motions must be filed in the Supreme Court; current Rules 31.19(j) and 23(j) are deleted.
- Subsection (b) regarding mailing is changed to permit electronic transmittal of documents. Additionally, in the event a petition or cross-petition becomes moot by the grant of a motion for reconsideration, the petitioner or cross-petitioner is required to notify the parties and the clerk of the Supreme Court.
- Subsection (c) limits the requirement of filing copies of petitions or cross-petitions for review to petitions filed in hard copy; it also sets forth binding requirements for hard copies. An appendix to an electronically filed petition or cross-petition must include a table of contents with bookmarks to the documents contained in the appendix and listed in the table of contents.
- Subsections (d) and (g): Language in these provisions is changed from “transmittal” of the record upon filing a petition for review to making the record “available.” These changes acknowledge that no actual record will be physically transmitted; the record will be available electronically. The amendments in subsection (d) also specify when the record is made available to the clerk of the Supreme Court in situations where a motion for reconsideration is pending in the Court of Appeals.
- Subsection (e) requires the response to a petition for review and any appendix to the response to comply with the requirements of subsection (c) “not otherwise suspended by any Administrative Order of the Supreme Court.”
- Subsection (h). The amendment to criminal Rule 31.19(h) provides that if the Supreme Court denies review, the order shall specify any justices who voted to grant review. (This provision already appears in ARCAP Rule 23(h).)