dissenting:
Although the petitioner may be precluded from relief, see Rule 32.2(a)(2), (3); A.R.S. § 13-4232(A), I do not believe that this ease presents an appropriate vehicle for an exercise of the “inherent authority” of the judicial branch. The necessity that the state plead and prove preclusion by a preponderance of the evidence specifically is required by the Arizona Rules of Criminal Procedure, see Rule 32.2(c), and by statute. AR.S. § 13-4232(C); see State v. Rockefeller, 117 Ariz. 151, 152-53, 571 P.2d 297, 298-99 (App.1977). As the Arizona Supreme Court made clear, “preclusion can be found only if the state pleads and proves it before the trial court by a preponderance of the evidence.” State v. Hursey, 176 Ariz. 330, 332, 861 P.2d 615, 617 (1993). As sympathetic as I am to the result the majority wants to reach, particularly in light of the recent statutory amendment to AR.S. section 13-4232(0,7 I feel compelled to vacate the trial court’s summary dismissal of the petition for post-conviction relief and remand to the trial court for proceedings consistent with Rule 32.
. 1995 Ariz.Sess.Laws, ch. 198, § 4.