Taylor v. Sherrill9/25/1990
The State of Arizona has filed a petition for review of the order of the trial court granting defendant John Hubert Taylor's petition for post conviction relief under Rule 32, Ariz.R.Crim.Proc., 17 A.R.S. A new trial was set and Taylor filed a motion to dismiss various charges, relying upon the United States Supreme Court opinion in Grady v. Corbin, 495 U.S. , 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Taylor seeks special action relief from the trial court's denial of that motion. The petition for review and the special action have been consolidated. For the reasons stated below, the petition for review is denied. Because Taylor has no equally plain, speedy and adequate remedy by appeal and because we find that the trial court abused its discretion, we accept jurisdiction of Taylor's petition for special action and grant relief. Rules 1 and 3, Ariz.R.P.Spec.Ac., 17B A.R.S.
FACTS AND PROCEDURAL BACKGROUND
On July 18, 1988, Taylor turned left in front of an oncoming vehicle. As a result
of the subsequent collision, the passenger and driver of the other car were injured. Taylor was cited for an unsafe turn, in violation of A.R.S. § 28-754; speeding, in violation of A.R.S. § 28-701; failure to provide proof of insurance, in violation of A.R.S. § 28-1253; providing false information to the police, in violation of A.R.S. § 13-2907.01; driving on a suspended license, in violation of A.R.S. § 28-473; driving while under the influence of alcohol (DUI), in violation of A.R.S. § 28-692(A); and driving with a blood alcohol level of above .10 percent, in violation of A.R.S. § 28-692(B).
On October 12, 1988, a default judgment was entered against Taylor in Tucson City Court on the unsafe turn and speeding charges as a result of his failure to appear at his pretrial conference. The DUI charges were dismissed in November 1988 and referred to the Pima County Attorney's Office for felony prosecution.
On November 9, 1988, Taylor was indicted on numerous felony charges arising out of the July 1988 incident. On August 17, 1989, following a jury trial, he was convicted of two counts of aggravated assault, class 3 dangerous nature felonies, one count of theft over $1,000, a class 3 felony, two counts of criminal damage less than $1,500, class 6 felonies, DUI and DUI with a blood alcohol level of above .10 percent, and driving on a suspended license. On October 5, Taylor was sentenced to five years' imprisonment on the theft charge, 7.5 years for both aggravated assault charges, to be served consecutively to the theft charge, 1.5 years for both criminal damage charges, to be served concurrently, with time served on three remaining misdemeanors. In March 1990, Taylor filed a petition for post conviction relief under Rule 32, Ariz.R.Crim.Proc., 17 A.R.S., based upon a significant change in the law. Specifically, Taylor argued that the trial court erroneously denied his motion to suppress the results of a breathalyzer test, in violation of State v. Juarez, 161 Ariz. 76, 775 P.2d 1140 (1989), and this court's decision in Saenz v. Rodriguez, 163 Ariz. 386, 788 P.2d 119 (App.1989). In Saenz, this court overruled its prior decision in State v. Superior Court (Matthews), 158 Ariz. 500, 763 P.2d 996 (App.1988) in light of Juarez. The state had relied on Matthews in support of its contention that the breathalyzer test did not need to be suppressed. On April 18, 1990,
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