DUI & Criminal Defense

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Phoenix, Arizona 85004

DUI and Criminal Appeals

Arizona DUI AND CRIMINAL APPEALS:

The Essential Guide (2019)

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In this guide you’ll find:

  • Explanations of the Arizona rules governing how DUI and criminal cases can be appealed in Plain English
  • Step-by-step direction on how to create persuasive appellate briefs 
  • Situations when “special actions” must be used instead of an appeal 
Criminal Appeals

LET’S GO.

Getting an Arizona court to reverse a criminal conviction or to overrule a trial court judge is one of the most difficult tasks facing an attorney. Moreover, selecting when to challenge a ruling, what mechanism of Arizona appellate procedure to invoke or determining whether there is a realistic chance of success can be as much art as it is law.

What most people think of as an “appeal” is actually several different categories of processes in Arizona where a higher court reviews the decision of a lower court.

After a conviction

APPEALS AFTER A CRIMINAL CONVICTION

Appellate​ Briefs

Misdemeanors

Filing Deadlines

The deadline for filing of appellate memorandums is governed by Superior Court Rules of Appellate Procedure, Rule 8.

Opening Brief

The appellant’s memorandum (i.e. the brief) shall be filed with the trial court within 60 calendar days from the deadline to file the notice of appeal.

Response Brief

The appellee’s memorandum shall be filed within 30 calendar days of the filing date of the appellant’s memorandum

Reply

No reply memorandum shall be filed unless authorized by the Superior Court.

Important Note:

If no Response memorandum is filed, the matter shall be deemed submitted on the record and the appellant’s memorandum. However, the non-filing of an appellee’s memorandum shall not constitute a confession of error.

Format Requirments

Memoranda shall be:

1. typed or printed, single-sided

2. on 8.5 by 11-inch white paper.

3. The text shall be doubled spaced except for quotations.

4. Exclusive of any appendices, memoranda shall not exceed 15 pages.

Memoranda that are not legible may be stricken by the Superior Court. Other Superior Court local rules as to format, character size, and margins shall otherwise apply.

Easy​ to Miss:

In computing time limits, the “last day” means that when the last day of any period of time prescribed herein falls on a Saturday, Sunday, or day when the court is closed, the “last day” shall be the next day court is open

The day of the act or event from which the designated time period begins is not to be included. Except as stated by these rules or by order of a court in a particular case, the filing deadlines for motions, responses, and memoranda, are not enlarged when sent by mail.

Except as stated by these rules or by order of a court in a particular case, the filing deadlines for motions, responses, and memoranda, are not enlarged when sent by mail.

See Rule 1. Scope; Definitions, Superior Court Rules of Appellate Procedure – Criminal.

POST-CONVICTION RELIEF

Ineffective Assistance of Counsel

State v. Nunez-Diaz, 247 Ariz. 1, 444 P.3d 250 (2019)

The Arizona Supreme Court held that a person who receives ineffective assistance regarding their immigration consequences proves prejudice – just by demonstrating that – he would have gone to trial. 

The Petitioner plead guilty to possession of drug paraphernalia, a class 6 undesignated felony in the trial court.  Subsequently, he filed for post-conviction relief.  He alleged that he was an undocumented immigrant and that the lawyer who advised on his plea agreement provided ineffective assistance by advising him to take the plea, resulting in his mandatory deportation.

A superior court judge found that petitioner had established ineffective assistance and ordered that the plea be set aside.   The government then petitioned for review with the Court of Appeals.  They denied relief.

The government then petitioned for review to the Supreme Court resulting in the above ruling. 

BEFORE A CONVICTION

SPECIAL ACTIONS

From Superior Court - To Court of Appeals

Where the action is brought in a Court of Appeals, it shall be brought before whichever Court of Appeals has territorial jurisdiction over the county in which the action might have been brought had it been presented to a Superior Court.

AZ ST SPEC ACT Rule 4

Pleadings.

There shall be a complaint, which may be verified or accompanied by affidavits or other written proof, and an answer by the defendant or the real party in interest, or such other responsive pleadings as may be appropriate. The court may order any party or persons to file with the court all or any part of any records in his or its possession.

AZ ST SPEC ACT Rule 4

Caption.

In any special action filed against a Superior Court Judge, Court of Appeals Judge or other officer in a Court of Appeals or in the Supreme Court and in any petition for review filed pursuant to Rule 8(b) of these rules, the caption shall state the name of the judge or officer followed by the person’s official title, e.g., “[Name of Petitioner], Petitioner v. Hon. [Name of Judge], Judge of the Superior Court of the State of Arizona, in and for the County of [Name of County], Respondent and [Name of Real Party in Interest], Real Party in Interest.”

 

Questions Raised

The only questions that may be raised in a special action are:

(a) Whether the defendant has failed to exercise discretion which he has a duty to exercise; or to perform a duty required by law as to which he has no discretion; or

(b) Whether the defendant has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority; or

(c) Whether a determination was arbitrary and capricious or an abuse of discretion.
Editors’ Notes

AZ ST SPEC ACT Rule 3

STANDARDS OF REVIEW

Abuse of Discretion

State v. Chapple, 135 Ariz. 281, 297, 660 P.2d 1208, 1224 (1983):

  • The term “abuse of discretion” is unfortunate. In ordinary language, “abuse” implies some form of corrupt practice, deceit or impropriety. Webster’s Third New International Dictionary (1976). In this sense, the application of the word to the act of a trial judge who ruled in accordance with all the decided cases on the issue is inappropriate.
  • However, in the legal context, the word “abuse” in the phrase “abuse of discretion” has been given a broader meaning.
  • In the few cases that have attempted an analysis, the ordinary meaning of the word has been considered inappropriate and the phrase as a whole has been interpreted to apply where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice. State ex rel. Fletcher v. District Court of Jefferson County, 213 Iowa 822, 831, 238 N.W. 290, 294 (1931).
  • Similarly, a discretionary act which reaches an end or purpose not justified by, and clearly against, reason and evidence “is an abuse.” Kinnear v. Dennis, 97 Okl. 206, 207, 223 P. 383, 384 (1924).
  • The law would be better served if we were to apply a different term, but since most appellate judges suffer from misocainea, we will no doubt continue to use the phrase “abuse of discretion.” Therefore, we should keep some operative principles in mind. Something is discretionary because it is based on an assessment of conflicting procedural, factual or equitable considerations which vary from case to case and which can be better determined or resolved by the trial judge, who has a more immediate grasp of all the facts of the case, an opportunity to see the parties, lawyers and witnesses, and who can better assess the impact of what occurs before him. Walsh v. Centeio, supra.
  • Where a decision is made on that basis, it is truly discretionary and we will not substitute our judgment for that of the trial judge; we will not second-guess. Where, however, the facts or inferences from them are not in dispute and where there are few or no conflicting procedural, factual or equitable considerations, the resolution of the question is one of law or logic. Then it is our final responsibility to determine law and policy and it becomes our duty to “look over the shoulder” of the trial judge and, if appropriate, substitute our judgment for his or hers. This process is sometimes, unfortunately, described as a determination that the trial judge has “abused his discretion.” In that sense, we determine that this trial judge did.

Appealing a Driver’s License Suspension from Arizona MVD

More coming soon.

Superior Court 

Court of Appeals Division 1 and Division 2

Arizona Supreme Court

PCR Caption explained

Appeals from MVD Decisions Suspending a Driver’s License – judicial review of administrative decisions for the Department of Motor Vehicles. 

DUI and Criminal Appeals

Frequently Asked Questions

This gets a little tricky but Arizona law only allows a person convicted of a crime to appeal a final judgment.  For example, a final judgment of conviction after sentencing or the denial of a motion for a new trial.   If a final judgment has not occurred then the appropriate mechanism is likely something called a special action.  

“The mandate is the final order of the appellate court, which may command another appellate court, superior court, or agency to take further proceedings or to enter a certain disposition of a case.  An appellate court retains jurisdiction of an appeal until it issues the mandate.” Rule 31.22, Arizona Rules of Criminal Procedure.

MISDEMEANOR DUI AND CRIMINAL APPEALS
  • Rule 31.2. Notice of Appeal or Notice of Cross-Appeal, Arizona Rules of Criminal Appeals

The is same as if you were appealing a decision from a city court.  See the answer above.

The is same as if you were appealing a decision from a city court.  See the answer above.

FELONY DUI AND CRIMINAL APPEALS

Div. 1, Arizona Court of Appeals
Phone: 602-452-6700
Email: inform@appeals.az.gov
Location: 1501 W. Washington Street, Phoenix, 85007

Electronic filing is done though AZTurboCourt
https://turbocourt.com/go.jsp?act=actShowState&tmstp=1303166466042&id=11542622

SPECIAL ACTIONS

Coming soon. 

City Courts to Superior Court
Justice Courts to Superior Court

Coming soon. 

Coming soon. 

POST TRIAL MOTIONS
PETITIONS FOR REVIEW

RELATED TOPICS

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