Molski v. Hon. mcgill/state ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
GEORGE MOLSKI, Petitioner,
v.
THE HONORABLE MICHAEL P. MCGILL, Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
YAVAPAI, Respondent Judge,
STATE OF ARIZONA, Real Party in Interest.
No. 1 CA-SA 21-0096
FILED 7-13-2021
Special Action Review from the Superior Court in Yavapai County
No. V1300CR202080664
The Honorable Michael P. McGill, Judge
REVIEW GRANTED; RELIEF GRANTED IN PART; REMANDED.
COUNSEL
DM Cantor, Phoenix
By Joy Riddle and David Cantor
Counsel for Petitioner
Sedona City Attorney’s Office, Sedona
By William A. Kunisch
Counsel for Real Party in Interest
MOLSKI v. HON. MCGILL/STATE
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Peter B. Swann and Judge David D. Weinzweig joined.
M c M U R D I E, Judge:
¶1 Petitioner George Molski seeks special action relief from the
superior court’s order dismissing his appeal for lack of jurisdiction. We
grant special action jurisdiction, reverse the superior court’s order, and
remand for the following reasons.
FACTS AND PROCEDURAL BACKGROUND
¶2 On October 23, 2019, the Sedona Municipal Court sentenced
Molski on his conviction for Extreme DUI under A.R.S. § 28-1382(A)(2).
Molski timely filed a notice of appeal from the final judgment and sentence.
Before filing an opening memorandum in the appeal, Molski moved the
municipal court for a trial de novo, asserting that the record was insufficient
according to Rule 7(g) of the Superior Court Rules of Appellate Procedure—
Criminal. He argued the record was inadequate because a significant
portion of the State’s closing argument was inaudible in the audio
recording and had not been transcribed. On August 19, 2020, the municipal
court denied the motion after finding that it could enhance the recordings.
¶3 On October 21, 2020, Molski filed his opening memorandum
in the superior court, raising the insufficient record issue. The superior
court dismissed the appeal, concluding it lacked jurisdiction because
Molski failed to appeal from the municipal court’s August 19 order. See
Ariz. Sup. Ct. R. App. P. Crim. 3(b) (requiring a notice of appeal to identify
the order, judgment, sentence, or ruling appealed). Molski then petitioned
this court for special action review.1
1 Molski requested an extension to file his otherwise untimely reply
brief. We grant this request and consider the reply brief in this decision.
2
MOLSKI v. HON. MCGILL/STATE
Decision of the Court
DISCUSSION
A. We Accept Special Action Jurisdiction Because Molski Has No
Right to Appeal from the Superior Court’s Dismissal of His
Appeal.
¶4 We may accept special action jurisdiction when a petitioner
has no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P.
Spec. Act. 1(a). Here, Molski has no right to appeal from the superior court’s
dismissal of his appeal, and so we exercise our discretion and grant review.
B. The Superior Court Had Jurisdiction to Review the Sufficiency of
the Record According to Rule 7(g).
¶5 Rule 7(g) provides in part:
If it appears to the trial court that the record is insufficient for
an appeal on the record, the trial court may, on its own motion
or on motion of a party, reset the matter for a new trial within
45 days from such determination. . . . In cases where it
appears that the record is insufficient, the preference shall be
for a new trial at the trial court level. Notwithstanding the
foregoing, cases . . . determined by the superior court to have an
insufficient record may be remanded to the original trial court for a
new trial or hearing in lieu of a trial de novo in the superior court.
(Emphasis added.) This rule allows the superior court to remand a case for
trial de novo on its motion if it finds the record insufficient. Because the
superior court can always consider the sufficiency of the record when acting
as an appellate body, the court erred by concluding that it was without
jurisdiction to consider the issue due to Molski’s failure to file a separate
notice of appeal concerning the August 19 order. We, therefore, reverse the
superior court’s order dismissing the appeal due to lack of jurisdiction, and
remand the matter to the superior court to determine if the record is
sufficient. If the superior court concludes that the record is insufficient, it
may remand the case to the municipal court for a trial de novo. If the court
determines the record is sufficient, it may proceed at its discretion.
¶6 Molski requests that we direct the superior court to conduct a
trial de novo under Rule 7(g). However, whether the record is sufficient is
not before us. The only issue correctly before us is whether the superior
court erred by determining that it lacked jurisdiction to determine if the
record was sufficient. Molski’s relief is therefore limited to the remand of
this case to the superior court for its review of the Rule 7(g) issue.
3
MOLSKI v. HON. MCGILL/STATE
Decision of the Court
CONCLUSION
¶7 We accept jurisdiction, reverse the court’s order dismissing
Molski’s appeal for lack of jurisdiction, and remand for review of the
sufficiency of the record.
AMY M. WOOD • Clerk of the Court
FILED: AA
4