State v. Fayle , 114 Ariz. 219 ( 1976 )

114 Ariz. 219 (1976) 560 P.2d 403

The STATE of Arizona, Appellee and Cross-Appellant,
v.
Edward G. FAYLE, Appellant and Cross-Appellee.

No. 3724-PR.

Supreme Court of Arizona, In Banc.

December 20, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer III, Asst. Atty. Gen., Phoenix, for appellee and cross-appellant.

Donald W. Harris, Maricopa County Atty. by Herbert Williams, Deputy County Atty., Phoenix, for appellee and cross-appellant.

Ross P. Lee, Maricopa County Public Defender by Rudy J. Gerber, Deputy Public Defender, Phoenix, for appellant and cross-appellee.

CAMERON, Chief Justice.

This is a petition for review from an order of the Court of Appeals, Division One, Department A, which dismissed an appeal by the State from a trial court's order dismissing the charges against the appellant pursuant to Rule 11.6(e), Rules of Criminal Procedure (1973), 17 A.R.S. The Court of Appeals in dismissing the State's appeal cited the previous Court of Appeals case, State v. Lopez, 26 Ariz. App. 559, 550 P.2d 113 (1976), rehearing denied 22 June 1976.

The order of the Court of Appeals in the instant case of State v. Fayle, No. 3724-PR is affirmed, and the majority opinion of the Court of Appeals in State v. Lopez, 1 CA Maricopa County Superior Court as reported in 26 Ariz. App. 559, 550 P.2d 113 (1976), is approved and adopted as the opinion of this court.

STRUCKMEYER, V.C.J., and HAYS, HOLOHAN and GORDON, JJ., concurring.

APPENDIX

IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, | 1 CA-CR 1819 Appellee and | DEPARTMENT A Cross-Appellant, | MARICOPA County v. | Superior Court > No. CR-72807 EDWARD G. FAYLE, | | ORDER Appellant and | Cross-Appellee. |

ORDER

The motion by appellant/cross-appellee Edward G. Fayle to dismiss the cross-appeal by the State of Arizona and the state's opposition thereto has been considered by Presiding Judge Donofrio and Judges Nelson and Ogg. This does not constitute a permanent assignment of this appeal to these Judges, to this Department or to this Division of the Court of Appeals.

In reviewing the record in this matter, the Court notes that the state is attempting to appeal from the trial court's order of February 19, 1976 dismissing the charges against appellant/cross-appellee pursuant to Rule 11.6(e), Rules of Criminal Procedure, 17 A.R.S.

This order not being appealable pursuant to A.R.S. § 13-1712, this Court is without jurisdiction to entertain the appeal. State v. Lopez, 26 Ariz. App. 559, 550 P.2d 113 (1976).

IT IS ORDERED granting the motion of appellant/cross-appellee to dismiss the cross-appeal by the State of Arizona and the cross-appeal is hereby dismissed.

Further review of the file indicates that the appellant Fayle's January 30, 1976 notice of appeal is from the trial court's minute entry order of October 7, 1975 committing the appellant to the Arizona State Hospital. Although the standards applied by the trial court were civil in nature as required by Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972) and Rule 11.5(b)(2)(i), Rules of Criminal Procedure, 17 A.R.S., it is the opinion of this Court that the commitment order arising out of a criminal action and in compliance with the Rules of Criminal Procedure is one which is criminal in nature. Thus, appellant's appeal is governed by the Rules of Criminal Procedure.

Pursuant to Rule 31.3, Rules of Criminal Procedure, 17 A.R.S., a notice of appeal in a criminal action must be filed within 20 days after the entry of the order from which the appeal is taken. In this case, the January 30, 1976 notice of appeal is well beyond the 20 day limit prescribed by the rule and it appears that this Court is without jurisdiction to entertain the appeal. If appellant seeks a delayed appeal, he shall apply to the superior court pursuant to Rule 32.1(f), Rules of Criminal Procedure, 17 A.R.S. State v. Mitchell, 27 Ariz. App. 309, 554 P.2d 905 (1976).

IT IS FURTHER ORDERED that if counsel for the appellant, the Maricopa County Public Defender's Office, or counsel for the state disagrees with this Court's conclusion as to its jurisdiction to entertain the appeal by appellant Edward G. Fayle, they shall file a memorandum of points and authorities with this Court on or before October 4, 1976. In the event that memoranda are not filed prior thereto, the appeal by Edward G. Fayle will be dismissed without prejudice, by order of this Court.

IT IS FURTHER ORDERED that a copy of this order shall be mailed to the appellant Edward G. Fayle in addition to the usual mailing.

DATED this 20th day of September, 1976.

(s) Francis J. Donofrio FRANCIS J. DONOFRIO PRESIDING JUDGE