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State v. Aguilar6/25/1991
hat are part of our system but it may not be abused.
(Citation omitted.) State v. Carriger, 143 Ariz. 142, 146, 692 P.2d 991, 995 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985). In Carriger the court pointed out that the right to appeal is guaranteed by our constitution, Ariz. Const. art. 2, § 24, but the Rule 32 procedure is not. The court went on: "The right to appeal is of such importance that after sentencing, the judge must inform the defendant of his right to appeal . . . ." Id. at 145, 692 P.2d at 994. There is no comparable requirement under Rule 32. Thus, it is incongruous to allow petitioner to petition for review in this court when he would be unable to obtain review under a direct appeal. This court has no jurisdiction to consider any issue under Rule 32 that falls outside section 22-375.
Despite the outcome necessitated by the Rule 32.9(f) and section 22-375, petitioner is not necessarily left without a remedy. When section 22-375 prevents an appellant from raising an issue, the appropriate remedy, if any, is a petition for special action. See State v. McNeill, 146 Ariz. 568, 707 P.2d 972 (App.1985) (issue on appeal fell outside the jurisdictional requirements of A.R.S. § 22-375; appellant's remedy, if any, would be by way of special action). Similarly, when Rule 32 provides a petitioner with no avenue for relief, a petition for special action may also be appropriate. Cf. State v. Davis, 148 Ariz. 62, 712 P.2d 975 (App.1985). Recently, this court's jurisdiction to hear petitions for special action has been expanded to include petitions for special action without regard to this court's appellate jurisdiction. A.R.S. § 12-120.21.
Petitioner, with a petition for special action, receives the same level of review as if he had originated his petition for post-conviction relief in superior court. He receives one mandatory review, the city court where the post-conviction proceeding originated, and he receives two levels of discretionary review, the superior court and then this court via special action. If we held as the parties' request, there would be four tiers of review -- the city court, the superior
court, the court of appeals and the supreme court.
Treating petitioner's petition for review under Rule 32.9(f) as a petition for special action under A.R.S. § 12-120.21(A)(4), this court, in the exercise of its discretion, denies review.
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