ARIZONA VOICE FOR CRIME VICTIMS

LEGAL RESPONSE MANUAL

  CHAPTER ONE

A BRIEF OVERVIEW OF THE ADULT CRIMINAL JUSTICE SYSTEM

 

TABLE OF CONTENTS

Disclaimer

Acknowledgements

A Brief Overview of The Adult Criminal Justice System

Statute of Limitations

Commencement of Felony Actions

Preliminary Hearings/Grand Jury Presentations

Arraignments

Pre-Trial Conferences/Omnibus Hearings

Plea Negotiations and Plea Agreements

Trials

Sentencings

Appeal and Other Post-Conviction Relief

Table with criminal justice proceedings and the corresponding right(s), rule(s) or statute(s) that applies according to the Arizona Constitution, Victims’ Bill of Rights, Arizona Court Rule 39 and ARS Title 13, Chapter 40.

 

DISCLAIMER

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These materials are designed to help attorneys acting in a pro bono capacity on behalf of crime victims who seek to assist or protect their rights on expressed cases.  Although the materials are carefully reviewed, and significant editorial enhancements have been provided by knowledgeable editors, in dealing with specific legal matters, attorneys should research and review original sources of authority.

 

Neither Arizona Voice for Crime Victims, nor the Crime Victim Law Institute, make either express or implied warranties regarding the use of these materials. Each attorney must depend on his or her own research, knowledge of the law, and expertise in using or modifying these materials.

 

Drafting forms for court is essentially rendering legal advice.  No handbook can assume that responsibility, and this handbook does not assume such responsibility.  It is intended to serve only as a guide for the practitioner, and assist in keeping the costs of representation low – an essential ingredient for the success and longevity of any pro bono effort.  The responsibility of preparing the forms and all other documents that are to be submitted to courts ultimately remain, and entirely rest with, the individual practitioner.

 

The forms in this binder are suggestions only.  They have been carefully checked for conformity with the law as of the date of publication. Still, the facts of every case will necessarily require a variation or multiple variations from the forms presented in the binder.

 

It is our hope that all those who are dedicated to preserving and protecting the rights of crime victims in the criminal justice process will find these materials useful and helpful.  We sincerely thank all those who have chosen to dedicate their time and talents to this most worthy cause.

 

 

Acknowledgements

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All cases reprinted herein were obtained through the Internet from Westlaw.  This material has been edited in an effort to remove any and all proprietary material owned and copyrighted by Westlaw and/or West Group, such as headnotes and case synopses.  In the event that any such material remains, that material remains the sole and exclusive property of Westlaw and/or West Group, and such material appears herein and has been used and reproduced with express written permission from West Group.

 

AVCV wishes to acknowledge the assistance of Laura Reckart, Gessner Harrison, Prof. Doug Beloof, Stasy Click and Steve Twist in the preparation of these materials.

 

 

A Brief Overview of The Adult Criminal Justice System

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The Arizona Constitution grants constitutional rights to crime victims throughout the criminal justice process.  Ariz. Const., Art. 2, §2.1. These constitutional rights are further implemented in Title 13, Chapter 40.  “Victim” is defined as “a person against whom the criminal offense has been committed or, if the person is killed or incapacitated, the person’s spouse, parent, child or other lawful representative, except if the person is in custody or is the accused.”  Ariz. Const., Art. 2, §2.1.C, ARS §13.4401.18.  Throughout the criminal justice process, a victim must be treated with fairness, respect, and dignity, and be free from intimidation, harassment, or abuse.  Ariz. Const., Art. 2, §2.1.A.1.

 

This chapter will provide a basic overview of the adult criminal justice system, with brief references to the rights of victims as provided by Ariz. Const., Art. 2, §2.1 and Title 13, Chapter 40.

 

Commencement of Felony Actions

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A criminal case will usually begin with the reporting of an alleged crime to law enforcement authorities.

When a crime is reported, the circumstances surrounding the crime will dictate law enforcement’s actions.  There are six common scenarios:

a.        Police arrive at a crime scene while a crime is in progress or immediately following commission of the crime.  Suspect is present or immediately located.  Police arrest and book suspect.  Charges are submitted immediately to the appropriate prosecuting agency;

 

b.        Police arrive at a crime scene while the crime is in progress or immediately following the commission of the crime.  Suspect is present or immediately located.  Police arrest suspect but subsequently release him.  Further investigation is conducted.  Charges are thereafter submitted to prosecution agency without re-arresting suspect;

 

c.        Police arrive at a crime scene while a crime is in progress or immediately following commission of the crime.  Suspect is present or immediately located.  Police arrest suspect but thereafter release him.  Further investigation is conducted.  Case is summarily dropped by police and charges never submitted to  prosecution agency;

 

d.        Police are notified that crime has occurred in past.  Report is taken.  There is no immediate known suspect or there is a known suspect, but insufficient information to charge based on information available.  Case remains under investigation.  If a suspect is subsequently identified or sufficient information is gathered, police may arrest and book suspect if probable cause exists to believe he committed crime.  Charges are then submitted immediately to the prosecuting agency;

 

e.        Police are notified that crime has occurred in past.  Report is taken.  No immediate known suspect or there is a known suspect, but insufficient information to charge based on available information. Case remains under investigation.  With additional information, police do not arrest suspect but submit case to prosecution agency to file possible charges;

 

f.         Police are notified that crime has occurred in past.  Report is taken.  No immediate known suspect or there is a known suspect, but insufficient information to charge based on available information.  Case remains under investigation.  With additional information, police summarily dismiss case and do not submit case  to prosecution agency.

If a suspect is immediately arrested or is subsequently taken into custody by the police and the officers are requesting charges be filed by the prosecution agency, the suspect must be brought before a magistrate within twenty-four hours after his arrest for his initial appearance.[1]

At the suspect’s Initial Appearance, the judge will inform the suspect of the charges being sought, inform the suspect of his right to remain silent and his right to an attorney, appoint an attorney if the suspect is indigent and determine his conditions of release.[2]  Once the Initial Appearance is conducted, the prosecution agency has 48 hours to file a complaint, if one was not previously filed.[3]

The Arizona Rules of Criminal Procedure do not specify any time limits for review of cases submitted to a prosecution agency when the defendant is not in custody.[4]  However, some office policies have dictated a sixty to ninety day review limit.

Whether a suspect is in custody or out-of-custody, if the case is submitted to a prosecution agency for review and filing of charges, the reviewing prosecutors have the following options:

1.        They can file a complaint or information, charging whatever crimes they feel are provable;

2.        They can “turn-down” or decline to file the case;

3.        They can request additional investigation be conducted before the filing will be re-considered;

4.        They can request additional investigation be conducted after some charges have been filed;

If the complaint or information is filed, the case will be scheduled for either a preliminary hearing or grand jury presentation.  The prosecutor may file the case by either complaint or information.  The preliminary hearing must begin or the grand jury presentation conclude no later than ten days following the suspect’s initial appearance if he is in custody and, if he is out-of-custody, no later than twenty days after his initial appearance.[5]

 

Statute of Limitations

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The statute of limitations specifies that for class 2 through class 6 felonies, there is a seven year time limitation for commencing prosecutions after actual discovery by the state that a crime has been committed or discovery which should have occurred with the exercise of reasonable diligence[6].  For crimes involving homicide, sexual assault, misuse of public monies or felonies involving falsification of public records, prosecution may be commenced at any time[7].  The time period of limitation does not run during any time when the accused is absent from the state or has no reasonably ascertainable residence within the state or, for serious offenses as defined in A.R.S. § 13-604, during any time when the identity of the perpetrator of the crime is unknown[8].

 

Preliminary Hearings/Grand Jury Presentations

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The nature and class of the crime(s) charged will often dictate whether a case will proceed by preliminary hearing or grand jury.  Typically in Maricopa County, all class 1, 2 and 3 felonies will proceed by grand jury, and all lesser felonies will proceed by preliminary hearing.

The purpose of a preliminary hearing and a grand jury presentation are the same: to determine whether probable cause exists to believe the defendant committed the charges that are contained in the complaint.

Although the purpose of the proceedings may be the same, the procedures differ substantially.  A preliminary hearing is held in open court before a magistrate who is usually sitting in a County Justice Court, or in the new Felony Centers at Superior Court. All the parties to the action (i.e. the State and defendant) are present and each has a right to cross-examine any witnesses presented.[9]  Reliable hearsay is admissible and objections calling for the exclusion of evidence on the basis that it was unlawfully obtained are inapplicable at these hearings.[10]  However, only evidence that is material to the probable cause question may  be admitted.  At the end of the State’s case, the defendant may only make a specific offer of proof.[11]  The magistrate may allow the defendant to present his proffered evidence only if it would be sufficient to rebut the finding of probable cause.[12]  If probable cause is found to exist at a preliminary hearing, the defendant is “held to answer” and he is “bound over” before the Superior Court for trial.[13]  If probable cause does not exist, the case is dismissed, unless or until new evidence is discovered[14].

Many counties also use the preliminary hearing as a way to plea bargain a case before it gets to superior court.  At a preliminary hearing, one of three things can happen.  First, a defendant can choose to enter into a plea agreement with the state, this is known as a “waiver with plea”.  The defendant admits in his plea agreement that probable cause exists, and that he wishes to change his plea.  The case is then bound over to superior court with the hearing never being conducted.  Second, a defendant can choose to “straight waive” the proceedings into superior court by signing a statement that acknowledges that the state has probable cause, and his arraignment is then held in superior court with the hearing never being conducted.  Third, the defendant can have the state prove that there is probable cause by forcing the state to have the probable cause hearing.[15]

On the other hand, a case charged by way of grand jury is presented before a group of persons summoned and empanelled for the sole purpose of determining probable cause in a variety of cases.  The sizes of grand jury panels will vary, but there must be a concurrence of at least nine grand jurors in order for an indictment to be returned.[16]  The proceedings are closed.  Other than the authorized prosecutor presenting the case, only the witness under examination, counsel for the witness (if the witness is a person under investigation by the grand jury), a court reporter, and the grand jurors themselves are allowed to be present at the actual grand jury proceeding.[17]   Therefore, attorneys, staff, or witnesses who are privy to the grand jury proceedings cannot reveal to anyone outside of that circle the existence or nature of the proceedings.  No persons other than the grand jurors themselves are allowed to be present during the deliberation and voting of the grand jury.[18]  Typically, a case will be presented to a grand jury by a prosecutor with only one witness testifying---the police officer or case agent.  After the facts are presented, the jury can ask questions of fact of the witness and then questions of law may be directed at the prosecutor.  The grand jury will deliberate and render their decision on whether a “draft” indictment should be considered.  The prosecutor will then give the grand jury the “draft” indictment and the grand jury will deliberate.  The grand jury may then follow the “draft”, amend the “draft” or choose not to indict.  If the grand jury returns with an indictment and the defendant is out of custody, the defendant may be summoned to appear in court, or an arrest warrant may be issued and served.  The grand jury indictment must remain secret until the defendant is served with the notice that he has been indicted.[19]  If the grand jury chooses not to indict, they may indicate whether or not they wish further investigation by the police department, or whether there is “no true bill”.  The charging agency can then decide if they wish to bring any further charges before a judge at a preliminary hearing, or another grand jury proceeding.  However, if the defendant is not indicted, or if the case is sent back to the police agency for further information, the defendant must be released from custody.

 

Arraignments

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Once an indictment is returned or the defendant is bound over to superior court on criminal charges, the scheduling of criminal proceedings will begin.  ARS § 13-4401(7) defines “criminal proceeding” as “a hearing, argument or other matter scheduled by and held before a trial court but does not include any deposition, lineup, grand jury proceeding or other matter not held in the presence of the court.”[20]

The first proceeding to be held and for which the defendant must appear is the arraignment. The arraignment must be held no later than ten days after the filing of an indictment, information or complaint.[21]  The purpose of the arraignment is to ascertain the defendant’s plea of guilty, not guilty, or no contest, to set the case for trial or pretrial conference, to advise the defendant of his right to a jury trial (if applicable), to determine release conditions, and to advise defendant of his right to be present at all proceedings.  Further, the defendant will be advised that any future proceedings could be held in his absence and a new charge of failure to appear, plus a warrant could be issued, against him.[22]  In most circumstances, the defendant enters a not guilty plea, thus, the proceeding is very brief.

 

Pre-Trial Conferences/Omnibus Hearings

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The purpose of a Pre-Trial Conference (PTC) is set forth in Rule 16.5 of the Arizona Rules of Criminal Procedure.  The rule states that the purposes of a PTC may include:

(1)       To provide a forum and procedure for the fair, orderly and just disposition of cases without trial;

 

(2)       To permit the parties, without prejudice to their rights to trial, to engage in disclosure and conduct negotiations for dispositions without trial;

 

(3)       To provide an opportunity for complying with discovery as required by these rules and by constitutional law;

 

(4)       To eliminate the need for setting a date for trial for cases which may be disposed of without trial;

 

(5)       In all cases which cannot be fairly disposed of without trial, to enable the court to set a date certain for trial;

 

Although several PTC’s may be scheduled, the first PTC should be held within twenty-five days after the arraignment.[23]  In most Superior Courts in Maricopa County, only one PTC is held, wherein the matter is either set to trial or disposed of by a plea agreement.

Omnibus hearings may be held during the course of a PTC.  Rule 16.3 of the Arizona Rules of Criminal Procedure specifies the purpose of those hearings, stating that the court shall:

(1)       Hear all motions made at or prior to the hearing;

 

(2)       Obtain stipulations to facts relevant to the case;

 

(3)       Discuss and determine any other matters which will promote a fair and expeditious trial including the imposition of time limits on trial proceedings or portions thereof, the use of juror notebooks, the giving of brief pre-voir dire opening statements and preliminary instructions, and the effective management of documents and exhibits; and

 

(4)       Set such hearings for the taking of evidence or argument of motions as are needed.

 

There is no specified time period for scheduling an Omnibus Hearing.  Oftentimes, the court will conduct the above-listed matters immediately before jury selection.

During the time period between PTC’s and trial, discovery between the parties is being completed.  This will include the interviewing of witnesses and possible forensic testing.[24]

 

Plea Negotiations and Plea Agreements

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When a defendant does not want a trial, he may dispose of his case by entering into a plea agreement with the State.  The decision to take a plea is usually made after the defendant has been tendered a plea offer by the assigned prosecutor.

In order to facilitate a plea, the court may participate in a settlement conference with the parties if either party requests the court’s participation or if the court, in its sole discretion, orders its participation sua sponte.[25]  A defendant, however, is not entitled, as a matter of right, to a plea offer.[26]  Some prosecution agencies have developed their own policies on time limits for extending and accepting plea offers and may have their own policies regarding the parameters of plea offers for certain specified crimes.[27]

The terms of a plea agreement must be reduced to writing and signed by the defendant, the defendant’s counsel and the prosecutor.[28]  The defendant may plead “guilty” or “no contest”.[29]  A plea of guilty means the defendant is admitting his guilt to the offense set forth in the plea agreement.  A no contest plea means the defendant is not admitting his guilt, but he is not contesting the State’s evidence.  A no contest plea has the same effect as a guilty plea in that the no contest plea will also be denoted as a conviction. 

 

A variety of stipulations may be included within a plea agreement.  There may be a stipulation that the defendant will receive probation with no jail, or probation with jail or probation with no agreements on whether he will or will not receive jail. (This is commonly referred to a “Stip probation” plea).  Probation pleas may also entail certain terms, such as intensive probation, gang terms, sex offender terms, or domestic violence terms.  Each of these terms involve a detailed set of rules and conditions that the probationer must agree to.  A prison sentence may be stipulated to, with a designated number of years or a range of years, leaving the actual number of years to be imposed at the judge’s discretion. (This is commonly referred to as a “Stip DOC” plea).  Or there may be no stipulation to prison or probation leaving the entire sentencing decision in the judge’s hands.  (This is commonly referred to as a “no agreements” plea).  In certain situations, the plea agreement may contain stipulations to both prison and probation.  Stipulations to restitution, no victim contact, sex offender registration are also commonly used.  Whatever the stipulation, it must not violate a defendant’s basic fundamental rights.[30]

In order to accept a plea of “guilty” or “no contest”, a court must determine that the plea is made knowingly, voluntarily and intelligently, and is not the result of any threats, force or promises.[31]  The defendant must be addressed personally by the court in an open forum, informing him of and determining that he understands the following:

(1)       The nature of the charge to which he is pleading;

 

(2)       The nature and range of possible sentences for the offense to which he is pleading, including any special conditions regarding sentence, parole or commutation imposed by statute;

 

(3)       The constitutional right which he is foregoing by pleading, including his right to counsel if he is not represented by counsel;

 

(4)       The right to plead “not guilty”;

 

(5)       And if it the case is not a capital punishment case, that by pleading he will waive the right to have the appellate courts review the proceedings by way of direct appeal, and may seek review only by filing a petition for post-conviction relief or, if denied, a petition for review.

A factual basis for the plea may then be obtained.[32]

ARS § 13-4423(B) provides that a court shall not accept a plea agreement unless:

1.        The prosecuting attorney advises the court that reasonable efforts were made to confer with the victim regarding the negotiated plea pursuant to ARS § 13-4419 before the plea was presented to the court.

 

2.        The prosecuting attorney advises the court that reasonable efforts were made to give the victim notice of the plea proceeding pursuant to ARS § 13-4409 and to inform the victim that the victim had the right to be present and heard.

 

3.        The prosecuting attorney advises the court that to the best of the prosecutor’s knowledge notice requirements of Title 13, Chapter 40 have been complied with and the prosecutor informs the court of the victim’s position, if known, regarding the negotiated plea.

After making the above determinations, and providing a victim the right to be heard regarding the negotiated plea[33], the court can accept or reject the negotiated plea agreement.[34]  If the prosecutor cannot make the avowal that Victim’s Rights have been complied with, the Judge will commonly defer acceptance of the plea until the victim has been notified.  If the plea has not been accepted by the court, or acceptance has been deferred, the agreement can be revoked by any party prior to sentencing.[35]   If the court rejects the plea, the court shall give the defendant an opportunity to withdraw from the plea, advising him that if he permits the plea of “guilty” or “no contest” to stand, the disposition of the case may be less favorable to him than the agreement originally contemplated.[36]

The sentencing of a defendant will be delayed a minimum of thirty days after the determination of guilt in order to allow time for a pre-sentence report to be written[37]  Pre-sentence reports will be drafted by a probation officer assigned to the pre-sentence investigations unit of the Probation Department.

 

Trials

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Criminal Trials may proceed before a jury or before a judge sitting without a jury if all the parties agree to waive the jury.  In all criminal jury trials, the jury must render a unanimous verdict.[38]  However, the number of jurors required to render a verdict depends on the amount of potential punishment the defendant faces.  A jury of twelve persons is required in cases where a sentence of death is possible or in which the maximum punishment of thirty years or more is authorized.[39]  A jury of eight persons is required where the defendant is charged with a felony but faces less than thirty years in prison for a maximum sentence.[40]  For all other cases (such as misdemeanors), a jury of six persons is required.[41]

Rules 8.1 through 8.7 of the Arizona Rules of Criminal Procedure govern a defendant’s right to a speedy trial.  If a defendant is in custody, he is to be tried within 120 days from his initial appearance or within 90 days from his arraignment, whichever is the lesser time period.[42]  If the defendant is out of custody, he is to be tried within 120 days from his initial appearance or within 90 days from his arraignment, whichever is the greater time period.[43]  However, under particular circumstances, these time limitations may be extended or certain time periods excluded.[44]

Witnesses who may be called to testify in a trial may be excluded from the courtroom when the witness is not testifying, if Rule 615 of the Arizona Rules of Evidence or Rule 9.3 of the Arizona Rules of Criminal Procedure has been invoked by either of the parties.[45]  The defendant, his counsel and an authorized defense investigator may be present during the course of trial at counsel’s table.[46]  The State is allowed its prosecutor(s) and a designated State’s investigator to be present at counsel table.[47]

The procedure for jury selection in criminal cases is set forth in Rule 18.5 of the Arizona Rules of Criminal Procedure, although many judges apply their own methodologies to the jury selection process.

Once jury selection is complete, the judge will instruct the jury with preliminary jury instructions and the State will give an opening statement, then the defendant may proceed with its opening or delay its opening statement until the point where the State has rested and the defense is ready to begin its case.  The State will then present its witnesses.  The defense will have the opportunity to cross-examine each witness.  The prosecution may then conduct a re-direct examination of the State’s witnesses.

At the end of the State’s presentation, the defense will typically ask for a Directed Verdict or Judgment of Acquittal against the State pursuant to Rule 20 of the Arizona Rules of Criminal Procedure.  The judge must make the determination with all possible speed, based on whether there is substantial evidence for the jury to consider convicting the defendant of the charges.[48]

If the State survives the Rule 20 motion, the defense may proceed with its case.  The defendant need not testify (and, obviously, the State cannot call the defendant to testify) and the defendant need not present any evidence at all.  If the defendant presents evidence, the State may cross-examine the defense witnesses.  When the defense rests, the State may then present evidence in rebuttal. 

Whenever any witness is on the stand, the jury has the option of asking the witnesses their own questions.  Jury questioning is usually done by writing their question down and leaving it in a notable place for the bailiff to collect.  Prior to excusing the witness, most judges will then collect the juror questions, and conduct a bench conference with the parties to determine whether or not the witness may answer the question.  The judge asks all questions that have been submitted, unless an objection to the question has been sustained based upon legal grounds.  All of the juror questions are numbered and made part of the written record of the trial proceedings, regardless of whether they were asked by the judge or not.  At the conclusion of the witnesses answer to the jury questions, the State and Defense are usually allowed to ask any follow-up questions that they want pertaining to those questions.

The trial will then typically proceed to closing argument, with the State proceeding first, the defense proceeding immediately thereafter, and then the State presenting rebuttal argument.  After closing instructions are given by the judge to the jury, the jury will retire for deliberations.

One may expect several Post-Trial motions to be filed by the defense, including a Motion for New Trial, should the defendant be convicted.  The remedies available to the defendant are set forth in Rules 24.1, 24.2, 24.3 and 24.4 of the Arizona Rules of Criminal Procedure.

 

Sentencings

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If a plea agreement has been entered into by the defendant and it has been accepted by the court, or if the defendant was adjudged guilty after a trial, the next step of the process will be sentencing.  A sentence must be pronounced between fifteen and thirty days after the determination of guilt unless good cause exists to accelerate or postpone the sentencing.[49]  This delay is necessary to allow time for a pre-sentence report to be drafted.[50]

Pre-sentence reports will typically be drafted by a probation officer assigned to the pre-sentence investigations unit of the Probation Department.  In preparing the pre-sentence report, the probation officer may review and summarize the relevant police reports and may attempt to obtain feedback and commentary from the investigating officer, the prosecutor, the victim, the defendant and any other pertinent individuals.  In addition, the defendant’s criminal history will usually be investigated and reported.  Finally, the probation officer may provide a recommended sentence within the report.

The prosecutor and defense counsel must receive copies of and be entitled to inspect all pre-sentence, diagnostic, mental health and other reports that pertain to the case.[51]  Portions of the report may be excised by the court.[52]  A court may excise the following from the copy of the pre-sentence report: diagnostic and mental health reports, the defendant’s criminal history, diagnostic opinions which may seriously disrupt a defendant’s rehabilitation program, sources of information obtained on a promise of confidentiality and information which would disrupt a police investigation.[53]  Any victims are entitled to read or inspect the pre-sentence reports relating to the crimes against them, except any excised portions.[54] 

At time for the actual sentencing, the Court must give the defendant a right to speak on his own behalf.[55]  Victims are also constitutionally entitled to be heard at sentencing.[56]  A victim’s statutory right to be present and heard at sentencing is found in ARS § 13-4426.  This statute provides that a victim “may present evidence, information and opinions that concern the criminal offense, the defendant, the sentence or the need for restitution at any aggravation, mitigation, pre-sentencing or sentencing proceeding.”[57]  The victim then “has the right to be present and to address the court” at any disposition proceeding.[58]  After all statements have been made and all evidence presented, the court shall: (1) express to the defendant that the time the defendant spent in custody has been considered, (2) explain what aggravating and mitigating factors were considered by the judge (3) explain the terms of the sentence or probation to the defendant, (4) specify the commencement date for the term of imprisonment and a computation of time to be credited against the sentence as required by law, and (5) direct the court clerk to send all related reports to the Department of Corrections.[59]   The court must also advise the defendant, after pronouncement of sentence, of his right to appeal or his right to Post-Conviction Relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure and provide the defendant with written notice and procedures for appeal.[60]

Trial courts are required to impose restitution to reimburse the victims of crime for their full economic loss, even if a victim declines to request restitution.[61]  If restitution is ordered, the victim receiving the restitution has a right to receive that restitution in a prompt manner.[62]

Classifications of crimes and their relative dispositions are set forth in Chapter 6 of the Arizona Criminal Code, Title 13.  Specific options are covered as follows:

 

1.        Imprisonment (jail or prison), see ARS §§ 13-701 through 711;

2.        Imposition of Fines and/or Restitution, see ARS §§ 13-801 through 821;

3.        Probation (supervised, unsupervised and/or summary), see Rule 27.1. through 27.10., Arizona Rules of Criminal Procedure and ARS §§ 13-901 through 921.

 

Keep in mind that there are certain crimes that mandate a prison sentence.[63]  A few examples are:

1.        “Dangerous” crimes - ARS § 13-604  (i.e. crimes that involve the use of a dangerous or deadly weapon or crimes that involve the intentional or knowing infliction of serious physical injury);

2.        “Dangerous Crimes Against Children in the First Degree” - ARS § 13-604.01 (i.e. Specified crimes committed against children under the age of fifteen years, such as sexual assault, molestation, sexual conduct with a minor, aggravated assault, etc.);

3.        Sexual Assault - ARS § 13-1406 (i.e. sexual assault upon a non-spouse age fifteen or over);

4.        Repeat Offenders - ARS § 13-604 (i.e. offenders who were previously convicted of a felony within a specified number of years);

5.        Gang Motivated Crimes - ARS § 13-604(T) (i.e. crimes which are found to have been committed to further or promote a criminal street gang).

 

Appeal and Other Post-Conviction Relief

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A defendant is entitled to an appeal following a trial.  His notice of appeal must be filed within twenty days after the entry of judgment and sentence.[64]  However, for defendants sentenced to death, an automatic notice of appeal shall be filed on the defendant’s behalf at the time of entry of judgment and sentence.[65]  The guidelines regarding appeals are contained in Rules 31.1. through 31.24 of the Arizona Rules of Criminal Procedure.

A defendant who entered into a change of plea or a defendant whose appellate remedies under Rule 31 have been exhausted may file a request for Post Conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure.  The guidelines for Post Conviction relief are covered in Rule 31.1 through Rule 32.9.

 

Table with criminal justice proceedings and the corresponding right(s), rule(s) or statute(s) that applies according to the Arizona Constitution, Victims’ Bill of Rights, Arizona Court Rule 39 and ARS Title 13, Chapter 40.

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CRIMINAL JUSTICE PROCEEDING

 

ARIZONA CONSTITUTION

ARIZONA COURT RULE 39

ARS TITLE 13,

CHAPTER 40

Crime Occurs/Arrest

N/A

N/A

13-4405 (victim must be given multi-copy form by law enforcement)

 

 

Release or Escape

Art. II, § 2.1.A.2 (right to be informed of release or escape)

 

Art. II, § 2.1.A.4 (right to be heard at post-arrest release proceeding)

 

39.b.5 (right to be given notice re: escape)

 

39.b.6 (right to be given notice re: proposed release)

 

39.b.7 (right to confer w/pros. & to be heard re: proposed release)

 

13-4407 (right to notice re: release conditions)

 

13-4412 (right to notice of release or escape)

 

13-4416 (right to notice of release or escape from mental inst.)

 

13-4422 (right to be heard at post-arrest release)

 

13-4432 (Victim’s right to file motion to revoke bond/release)

 

 

Initial Appearance 

Art. II, § 2.1.A.3 (right to be present & informed of criminal proceedings)

 

 

39.b.3 (right to be given notice re: criminal proceedings)

13-4406 (right to notice of IA)

 

13-4421(right to be heard at IA)

Charging Decision

N/A

39.b.7 (right to confer w/pros. re: decision) 

 

13-4408 (right to confer on turndown w/pros. & right to notice re: rights)

 

 

Prelim./Grand Jury 

Art. II, § 2.1.A.3. (right to be present & informed of criminal proceedings. -- prelim. only)

 

 

39.b.3  (right to be given notice re: criminal proceedings--- prelim. only)

13-4409 (notice re: criminal proceedings-- prelim. only)

 

13-4420 (right to be present at all criminal proceedings)

 

 

Arraignment

Art. II, § 2.1.A.3 (right to be present & informed of criminal proceedings)

 

39.b.3 (right to be given notice re: criminal proceedings)

 

39.b.4 (right to be present at criminal proceedings.)

 

 

13-4409 (notice re: criminal proceedings)

 

13-4420 (right to be present at criminal proceedings.)

Pre-Trial Conference

Art. II, § 2.1.A.3 (right to be present & informed criminal proceedings)

 

39.b.3 (right to be given notice re: criminal proceedings)

 

39.b.4 (right to be present at criminal proceedings.)

 

 

13-4409 (notice re: criminal proceedings)

 

13-4420 (right to be present at criminal proceedings.

Discovery

Art. II, § 2.1.A.5 (right to refuse int. or other disc. requests)

 

39.b.10 (right to refuse interview)

 

39.b.11 (right to have prosecutor w/hold discovery)

 

 39.b.12 (right to set conditions of int.)

 

 

13-4433 (right to refuse interview)

 

13-4434 (right to privacy)

Plea Negotiations

Art. II, § 2.1.A.4 (right to be heard re: plea)

 

Art. II, § 2.1.A.5 (right to confer w/pros. re: plea)

 

 

39.b.7 (right to confer w/pros. re: plea & right to be heard at plea)

13-4419 (right to confer w/pros. re: plea)

 

13-4423 (right to be present & heard re: plea)

 

 

Trial

Art. II, § 2.1.A.3 (right to be present & informed of  criminal proceedings) 

 

Art. II § 2.1.A.6 (right to confer w/pros. before trial)

 

Art. II § 2.1.A.10 (right to speedy trial)

 

 

39.b.3 (right to be given notice of criminal proceedings.)

 

39.b.4   (right to be present at criminal proceedings.)

 

39.b.15 (right to speedy trial)

 

13-4409 (right to notice re: criminal proceedings --prelim. only)

 

13-4410 (right to notice re: criminal proceedings outcome of trial)

 

13-4420 (right to be present at criminal proceedings)

 

13-4435 (right to speedy trial)

 

 

Sentencing

Art. II, § 2.1.A.3 (right to be present & informed of criminal proceedings) 

 

Art. II, § 2.1.A.4 (right to be heard at sentencing)

 

Art. II, § 2.1.A.7 (right to read pre-sent. report)

 

Art. II, § 2.1.A.8 (right to prompt restitution)

 

 

39.b.7 (right to be heard at sentencing.)

 

39.b.13 (right to read pre-sent. report)

13-4424 (impact statement)

 

13-4425 (right to inspect pre-sent. rpt)

 

13-4426 (right to present evidence be present & be heard)

 

13-4429 (return of victim’s property)

Post-Conviction

Art. II § 2.1.A.9 (right to be heard re: post-conviction release)

39.b.6 (right to notice re: release or proposed release)

13-4411 (notice of post-conviction. review & app. proceedings.)

 

13-4413 (notice of prisoner’s status)

 

13-4414 (notice of post-conviction. release)

 

13-4415 (notice of probation modification/revocation)

 

13-4427 (right to be present & heard at probation modification hearings)

 

 

[1]  If a suspect is not brought before a judge within twenty-four hours of his arrest, he must be released.  See Arizona Rules of Criminal Procedure, Rule 4.1.   

[2] See Arizona Rules of Criminal Procedure, Rule 4.2.  See also, Ariz.Const., Art. 2, § 2.1(A)(2)(victim has constitutional right to be informed and heard regarding release) and  Rule 39(b)(6), Arizona Rules of Criminal Procedure(rule of procedure providing the victim the right to be notified regarding proposed release).

[3] In Maricopa county, cases which have these time constraints are called “In Jails” or “red balls”.  See Arizona Rules of Criminal Procedure, Rule 4.1.

[4]   In Maricopa County, these cases are commonly referred to as “Basket Cases”.

[5] See Arizona Rules of Criminal Procedure, Rule 5.1.

[6] See A.R.S. § 13-107.

[7]Id.

[8]Id.

[9]  See Arizona Rules of Criminal Procedure, Rule 5.3.

[10] Id.

[11] Id.

[12] Id.

[13] See Arizona Rules of Criminal Procedure, Rule 5.4.

[14]  A defendant can always waive his preliminary hearing and be bound directly over to Superior Court.  This is called a “straight waiver”.  See Arizona Rules of Criminal Procedure, Rule 5.1(a).

[15] See State ex rel. Dean v. City Court, 173 Ariz. 515, 844 P.2d 1165 (App. 1992)(Victim’s Bill of Rights does not preclude defendant from issuing subpoena for victim to testify at evidentiary hearing on motion to dismiss for lack of probable cause).

[16]See Arizona Rules of Criminal Procedure, Rule 12.7.

[17]See Arizona Rules of Criminal Procedure, Rule 12.5.

[18] Id.

[19] See ARS § 13-2812(statute which penalizes grand jury disclosure as class 1 misdemeanor).

[20] See also, Rule 39(A)(2)(definition of “criminal proceeding” under Rule 39).

[21] See Arizona Rules of Criminal Procedure, Rule 14.1.

[22] See Arizona Rules of Criminal Procedure, Rule 14.3.

[23] See Arizona Rules of Criminal Procedure, Rule 16.4(a).

[24] A crime victim has the constitutional right to refuse an interview, deposition, or other discovery request by the defendant, the defendant’s attorney, or other person acting on behalf of the defendant. Ariz.Const., Art. II, § 2.1(A)(5).  See also, Rules 39(b)(11), Ariz. Rules Crim. Proc. and ARS § 13-4433.  If a victim chooses to participate in a defense interview or deposition, the victim can place conditions on that interview. See Rule 39(b)(12), Ariz. Rules Crim. Proc., and ARS § 13-4433(D).

[25] See Arizona Rules of Criminal Procedure, Rule 17.4.

[26] See State v. McInelly, 146 Ariz. 161, 704 P.2d 291 (Ariz.App. 1985).

[27]   For example, cases involving a deadly weapon may require the defendant to plead to a stipulated prison sentence.  Maricopa County also has a plea policy wherein if the case proceeded via preliminary hearing the plea would expire at the first PTC date, approximately 56 days after the preliminary hearing.  If the case proceeded by way of a grand jury indictment, the plea deadline would be 90 days from arraignment.

[28] See Arizona Rules of Criminal Procedure, Rule 17.4(b).

[29]  A defendant may be allowed to enter into an Alford plea. In an "Alford plea," the defendant pleads guilty to a crime while denying that he or she participated in it. See generally North Carolina v. Alford, 400 U.S. 25 (1970). These pleas, while constitutionally permissible, are strongly discouraged by Arizona’s courts and barred by others for various policy reasons. See, e.g., Duran v. Superior Court, 782 P.2d 324, 325 (Ariz. Ct. App. 1989).

[30] See e.g., State v. Montgomery, 115 Ariz. 583, 566 P.2d 1329 (Ariz. 1977).

[31]   See Arizona Rules of Criminal Procedure, Rule 17.1(b) and Rule 17.3.

[32] See Arizona Rules of Criminal Procedure,  Rule 17.3.

[33] Ariz.Const., Art. II, § 2.1(A)(4).

[34] See Arizona Rules of Criminal Procedure, Rule 17.4(d).

[35] See Arizona Rules of Criminal Procedure, Rule 17.4(b).

[36]  See Arizona Rules of Criminal Procedure, Rule 17.4(e).

[37] See Arizona Rules of Criminal Procedure, Rule 26.5(a)(1) and Rule 26.4. For capital cases, an aggravation/mitigation hearing shall be ordered to be held not less than sixty days nor more than ninety days after the determination of guilt.    See Arizona Rules of Criminal Procedure, Rule 26.5(c)(1). 

[38] See Arizona Constitution, Art. II § 23 and ARS § 21-102.

[39] See Arizona Constitution, Art. II, § 23 and ARS § 21-102(A).

[40]  See ARS § 21-102(B).

[41] See Arizona Constitution, Art. II, § 23 and ARS § 21-102(D). 

[42] See Arizona Rules of Criminal Procedure, Rule 8.2(b).

[43] See Arizona Rules of Criminal Procedure, Rule 8.2(c).

[44] See Arizona Rules of Criminal Procedure, Rules 8.4 and 8.5.  Although no time limitations are provided, victims also have a constitutional right to a speedy trial or disposition and prompt and final conclusion of the case after the conviction and sentence.  Ariz.Const., Art. II, § 2.1(A)(10).  The right to a speedy trial or disposition and the right to a prompt and final conclusion are different rights.

[45] However, because victims are entitled to be present at every criminal proceeding in which defendants have the right to be present (Ariz.Const., Art. II, § 2.1(A)(3)), victims can remain in the courtroom for trial even where the rule to exclude witnesses has been invoked. 

[46] A criminal trial may proceed in the defendant’s absence if the court finds that the defendant had actual and real notice of the time and date set for trial and he voluntarily absented himself, this is known as a trial in absentia.

[47] Victims are entitled to sit through jury selection.  See e.g., State v. Gonzales, 181 Ariz. 502, 892 P.2d 838 (1995).

[48] See Arizona Rules of Criminal Procedure, Rule 20.

[49]  For capital cases, a penalty hearing must be held not less than sixty days nor more than ninety days after the determination of guilt unless good cause exists to accelerate or postpone the sentencing.   See Arizona Rules of Criminal Procedure, Rule 26.3(a).

[50] See Arizona Rules of Criminal Procedure, Rules 26(a)(1) and 26.4.

[51] See Arizona Rules of Criminal Procedure, Rule 26.6(a).

[52] Id.

[53] See Arizona Rules of Criminal Procedure, Rule 26.6(c).

[54] Ariz.Const., Art. 2, § 2.1(A)(4).  See also, Ariz. Rules of Crim.Proc., Rule 26.6(a) and Rule 39(b)(13) and ARS § 13-4425.

[55] See Arizona Rules of Criminal Procedure, Rule 26.10(b).

[56] Ariz.Const., Art. II, § 2.1(A)(4).

[57] ARS § 13-4426(A).

[58] ARS § 13-4426(B).

[59] See Arizona Rules of Criminal Procedure, Rule 26.10(b).

[60] See Arizona Rules of Criminal Procedure, Rule 26.10(c). 

[61]  See State v. Contreras, 180 Ariz. 450, 885 P.2d 138 (App. 1994).

[62] Ariz.Const., Art. 2, § 2.1(A)(4).

[63] A sentencing chart is provided to you to assist you in the determining the available options for sentencings.

[64] See Arizona Rules of Criminal Procedure, Rule 31.3.

[65]See Arizona Rules of Criminal Procedure, Rule 31.2(b).