State v. Tarango ( 1995 )

VOSS, Judge,

dissenting.

I disagree with the majority opinion only insofar as it diverges from Behl and holds that the general sentencing guidelines of former A.R.S. section 13-604(D) prevail over the specific sentencing guidelines of former A.R.S. section 13-3408(D). Accordingly, I do not believe defendant is eligible for parole after two-thirds of her sentence is served.

In Behl this court first attempted to harmonize former A.R.S. section 13-1406(B), which prohibited early release from prison in instances of sexual assault, with former A.R.S. section 13-604(G), which generally provided for early release through parole. 160 Ariz. at 529-30, 774 P.2d at 833-34. Notwithstanding former A.R.S. 13-604(K), which provided that penalties in that section be “substituted for the penalties otherwise authorized by law[,]” the court in Behl determined that the statutes were in irreconcilable conflict. Id. at 530, 774 P.2d at 834. Because they could not be harmonized, the court held that former A.R.S. section 13-1406(B), the more recent statute that specifically prohibited early release in instances of sexual assault, prevailed over the general sentencing guidelines of former A.R.S. section 13-604(G). Id.

The present case mirrors Behl. Because former A.R.S. section 13-3408(D) entirely prohibits early release from prison for certain drug offenses, whereas former A.R.S. section 13-604(D) generally provides for early release through parole, a conflict arises. As in Behl former A.R.S. section 13-604(K) fails to harmonize these conflicting statutes to effectuate the intent of the legislature. Therefore, an irreconcilable conflict exists.

It is well-established that when an irreconcilable conflict arises between two statutes, “the more recent, specific statute governs over the older, more general statute.” Lemons v. Superior Court of Gila County, 141 Ariz. 502, 505, 687 P.2d 1257, 1260 (1984); see also Pima County v. Heinfeld, 134 Ariz. 133, 134-36, 654 P.2d 281, 282-84 (1982); Webb v. Dixon, 104 Ariz. 473, 475-76, 455 P.2d 447, 449-50 (1969); Behl, 160 Ariz. at 530, 774 P.2d at 834. Here, former A.R.S. section 13-604(D) applies to felonies in general. It was enacted in 1977 and amended in 1978. On the other hand, former A.R.S. section 13-3408(D) applies only to certain offenses involving narcotic drugs. It was enacted in 1987. Therefore, because former A.R.S. section 13-3408(D) is the more recent and more specific statute, it should govern.

Former A.R.S. section 13-3408(D) enumerates the applicable sentencing guideline: people convicted of certain narcotic drug offenses must, without exception, serve the entire sentence imposed by the court. Accordingly, defendant is not eligible for parole.

Therefore, I respectfully dissent.