IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA, )
)
Petitioner, )
)
v. )
) 2 CA-SA 2003-0026
HON. HOWARD HANTMAN, Judge of ) DEPARTMENT A
the Superior Court, in and for the County of )
Pima, ) OPINION
)
Respondent, )
)
and )
)
ALLAN CLYDE RIEDEL, )
)
Real Party in Interest. )
)
SPECIAL ACTION PROCEEDING
Pima County Cause No. CR20022216
RELIEF GRANTED
Barbara LaWall, Pima County Attorney
By Amy Pignatella Cain Tucson
Attorneys for Petitioner
Susan A. Kettlewell, Pima County Public Defender
By John L. Pollock Tucson
Attorneys for Real Party in Interest
B R A M M E R, Presiding Judge.
¶1 The State of Arizona petitions this court for special action relief in its attempt to
reinstate a misdemeanor prosecution for driving under the influence of an intoxicant (DUI) and
driving with a blood alcohol concentration (BAC) of .10 or more against real party in interest
Allan Clyde Riedel. A justice of the peace ordered the charges dismissed on statute of limitations
grounds, an order that was subsequently affirmed by the respondent superior court judge on
appeal. For the following reasons, we accept jurisdiction and grant relief.
¶2 Because this case originated in justice court, the state appealed the dismissal to
superior court. See A.R.S. § 22-371(A). Consequently, the state has no equally plain, speedy,
and adequate remedy by appeal, because it has no further right to appeal. See A.R.S. § 22-375
(limited scope of such appeals does not encompass appeals from superior court’s ruling); State v.
Superior Court, 188 Ariz. 372, 936 P.2d 558 (App. 1997) (special action only means by which
state may obtain further review). Moreover, the issue raised is a pure issue of law, thereby
presenting a question appropriate for special action review. See United States v. Superior Court,
144 Ariz. 265, 697 P.2d 658 (1985). Accordingly, in our discretion, we accept jurisdiction of the
special action. See Ariz. R. P. Special Actions 1(a), 17B A.R.S.
¶3 Under A.R.S. § 13-107(B)(2), the state has one year to commence a misdemeanor
prosecution. At issue here is the applicability and effect of § 13-107(G), the so-called “savings
clause,” which permits the state to refile a dismissed charge outside the one-year limitations period
under certain circumstances. See Johnson v. Tucson City Court, 156 Ariz. 284, 751 P.2d 600
(App. 1988) (interpreting former § 13-107(F), now (G); 1997 Ariz. Sess. Laws, ch. 135, § 1).
Section 13-107(G) provides:
If a complaint, indictment or information filed before the
period of limitation has expired is dismissed for any reason, a new
prosecution may be commenced within six months after the
dismissal becomes final even if the period of limitation has expired
at the time of the dismissal or will expire within six months of the
dismissal.
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¶1 The state and Riedel agree on the following procedural history of Riedel’s case in
justice court:
11/27/99 Riedel arrested and charged with DUI offenses in cause
TR99-050547
02/25/00 Cause TR99-050547 dismissed without prejudice
03/13/00 Same DUI charges refiled against Riedel in cause
TR00-012019
01/15/02 Cause TR00-012019 dismissed without prejudice
03/27/02 Same DUI charges again refiled against Riedel in cause
TR02-017969
On June 21, 2002, the justice of the peace granted Riedel’s motion to dismiss the charges with
prejudice, stating: “This case violates the statute of limitations. The second refile on March 27,
2002 is not allowable under any application of the six-month ‘savings clause.’”
¶2 Relying on this court’s decisions in Johnson and Uhlig v. Lindberg, 189 Ariz. 480,
943 P.2d 840 (App. 1997), the respondent judge denied the state’s subsequent appeal in an order
stating that, because the state had “re-filed the [charges] . . . within the one-year statute of
limitations period[,] . . . the savings clause has no application to the State’s later dismissal outside
the statute of limitations.” However, Johnson and Uhlig actually compel the opposite conclusion.
¶1 In Johnson, a defendant’s charges were dismissed without prejudice after the
limitations period had expired. The state then refiled the charges within six months of the
dismissal. For reasons relating to an appeal that the state initially pursued but then abandoned,
the charges were again dismissed without prejudice. The state later refiled the charges, but still
within six months of the original dismissal. This court held that § 13-107(G) permits the state to
again refile a case after it has been dismissed twice, “so long as it is accomplished within the
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six-month time frame triggered by the initial dismissal without prejudice.” 156 Ariz. at 286, 751
P.2d at 602.
¶1 As apparently did the respondent judge, Riedel attaches great significance to the
foregoing quote from Johnson, arguing that the six-month savings period here was “triggered”
by the dismissal of TR99-050547 on February 25, 2000, because that was the “initial dismissal.”
But the quoted passage in Johnson must be understood in context. In Johnson, both the initial and
subsequent sets of dismissals and refilings were made after the expiration of the one-year
limitations period. In that situation, the six-month savings period that § 13-107(G) provides could
only have been triggered by the first dismissal, after the one-year period of limitations had
expired. But, as we made clear in Uhlig, the quoted language from Johnson does not apply to a
first dismissal when, as here, the first dismissal and the subsequent refiling of the charges occur
within the one-year limitations period.
¶2 In Uhlig, the charges against the defendant were dismissed shortly after the
limitations period had begun and were refiled eight months later, still within the one-year
limitations period but outside the six-month time frame the savings clause provides. In this
situation, we held that, because the purpose of the statute is to extend the limitations period and
not to reduce it, “§ 13-107([G]) simply has no application.” 189 Ariz. at 481, 943 P.2d at 841.
¶3 Here, the initial dismissal of the charges against Riedel in TR99-050547 and the
refiling of those charges in TR00-012019 occurred within the one-year limitations period. As in
Uhlig, then, § 13-107(G) simply had no application to this first dismissal and refiling.
Consequently, that dismissal did not trigger the six-month savings period provided in the statute. 1
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As in Uhlig, we are not presented with a situation in which a charge is dismissed in the
last six months of the one-year limitations period and refiled either during that six-month period
or after the expiration of the one-year limitations period, which may implicate § 13-107(G).
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But the respondent judge’s conclusion that § 13-107(G) had no application to the state’s later
dismissal was unfounded and not required by Uhlig, which did not feature a second dismissal and
refiling. The first refiling of the charges, in TR00-012019, occurred before the limitations period
expired. It is irrelevant that those were refiled charges; they were still filed within the limitations
period, as required by § 13-107(G). It was the dismissal of those charges on January 15, 2002,
then, that implicated § 13-107(G) and triggered the six-month savings period. The state’s second
refiling of the charges in TR02-017969 less than three months later, therefore, was within the
applicable savings period provided by § 13-107(G). The justice of the peace erroneously ordered
the prosecution dismissed on statute of limitations grounds, and the respondent judge abused his
discretion in affirming that order on appeal based on Johnson and Uhlig. See State v. Chapple,
135 Ariz. 281, 660 P.2d 1208 (1983) (equating abuse of discretion with legally incorrect ruling).
¶4 Accordingly, we accept jurisdiction and grant relief. See Ariz. R. P. Special
Actions 3 (claims of abuse of discretion properly raised in special action proceedings). We
therefore vacate the respondent judge’s order dated January 23, 2002.
________________________________________
J. WILLIAM BRAMMER, JR., Presiding Judge
CONCURRING:
______________________________________
M. JAN FLÓREZ, Judge
______________________________________
JOSEPH W. HOWARD, Judge
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