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State v. Aguilar6/25/1991
Petitioner was found guilty by a jury in city court of driving under the influence , driving with a blood alcohol content greater than .10% and failure to stop. He was also found to have had a previous DUI conviction and was found civilly responsible for failure to drive in one lane. He filed a notice of appeal to superior court, but the appeal was dismissed because petitioner's former counsel failed to file an opening brief. The superior court also denied his motion to reinstate his appeal.
Petitioner then filed a Rule 32, Arizona Rules of Criminal Procedure, petition for post-conviction relief in Phoenix City Court. The trial judge denied the petition and petitioner's subsequently filed motion for rehearing. Petitioner filed a petition for review in superior court, which the superior court also denied.
Petitioner next filed a petition for review to this court pursuant to Rules 32.9(f), 31.18 and 31.19. The state filed a response to the petition pursuant to Rules 32.9(f) and 31.19.
Petitioner and respondent both claim that this court has jurisdiction pursuant to Rule 32.9(f). This court, however, has the duty sua sponte to raise the question of its subject matter jurisdiction and we do so here. State v. Poli, 161 Ariz. 151, 776 P.2d 1077 (App.1989). We hold that we do not have subject matter jurisdiction for two reasons. First, a Rule 31.19 petition for review, referred to in Rule 32.9(f), only applies to petitions for review from a decision of this court to the Arizona Supreme Court. Second, this court cannot enlarge its jurisdiction by granting or denying review in a Rule 32 petition for post-conviction relief that originated in city court and that sets forth issues over which we would not have had jurisdiction in a direct appeal.
Discussion
Initially we note that Rule 32 relief is not limited to criminal convictions that originate in superior court, but is available for criminal convictions that originate in municipal court. The rule provides that any person who has been convicted of or sentenced for a criminal offense may institute proceedings to secure appropriate relief. Rule 32.1; see also A.R.S. § 13-4231. It also provides for notice to a prosecuting attorney, when the conviction occurs in a court other than superior court: "If the conviction occurred in a court other than the superior court, the copy shall be sent to the office of the prosecuting attorney who represented the state at trial." Rule 32.4(a); but see A.R.S. § 13-4234(A), which does not include the above language. Relief is available by Rule 32 without regard to whether the conviction was for a felony or a misdemeanor offense, as the rule provides relief to any person who has been convicted of a criminal offense.
Once the court where the Rule 32 petition has been initiated has ruled, Rules 32.9(c) and 32.9(f) provide for further review. Rule 32.9(c) governs petitions for review from a trial court to an appellate court, in this instance from city court to superior court. See also A.R.S. § 13-4239(C). Rule 32.9(f), the rule at issue, which governs review of an appellate court decision in a petition for post-conviction relief, provides:
(f) Reconsideration and Review of Appellate Court Decision. The provisions governing the filing of motions for reconsideration and petitions for review in criminal appeals set forth in Rules 31.18 and 31.19 shall apply to and govern motions for reconsideration and petitions for review of an appellate court decision entered pursuant to Rule 32.
Rule 32.
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