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State v. Kearney12/23/2003
In this special action, petitioner State of Arizona contends the respondent judge erred in ordering real party in interest Amy Lou Henderson to remain released on bond pending sentencing following her conviction for aggravated driving under the influence of an intoxicant (DUI) in violation of A.R.S. § 28-1383(A)(1). The state argues that, because Henderson must be imprisoned for four months pursuant to § 28-1383(D) even if she is granted probation, the respondent judge was required to order her "immediately placed into custody after conviction" pursuant to Rule 7.2(b)(1), Ariz. R. Crim. P., 16A A.R.S. That rule generally requires such action for persons convicted in superior court who "will in all reasonable probability suffer a sentence of imprisonment." Because the state has no equally plain, speedy, and adequate remedy by appeal, see A.R.S. § 13-4032 and Rule 1(a), Ariz. R. P. Special Actions, 17B A.R.S., and because this is a pure question of law, a matter of first impression, and an issue of statewide importance, we accept jurisdiction. Ariz. Dep't of Revenue v. Superior Court, 189 Ariz. 49, 51, 938 P.2d 98, 100 (App. 1997). We conclude the respondent judge had discretion to continue Henderson's release on bond, and we therefore deny relief. See Ariz. R. P. Special Actions 3.
The relevant facts are not disputed. A jury found Henderson guilty of aggravated DUI, a class four felony, on September 12, 2003. Henderson had been released from custody since the time of her arrest. After the jury returned its verdict, the state moved that she be taken immediately into custody pending sentencing pursuant to Rule 7.2(b), Ariz. R. Crim. P. Henderson objected, arguing that she is a strong candidate for probation and noting she had rejected a plea offer in which the state had proposed recommending that she be placed on probation. Recognizing that § 28-1383(D) and Rule 7.2(b) arguably called for Henderson's immediate incarceration, the respondent judge nonetheless found that Rule 7.2(b) did not apply and permitted Henderson to remain released on bond under the supervision of pretrial services pending sentencing. The state petitioned for special action relief on October 1.
Although sentencing was set for October 10, this court ordered the parties to continue litigating this special action regardless of the outcome of that proceeding. According to Henderson's response to the special action petition and the state's avowal at oral argument, Henderson was placed on probation on October 10. Although the issue before us is therefore moot, we may nonetheless decide such an issue when, as here, it is a recurring issue of public importance that will otherwise evade review. See State ex rel. McDougall v. Municipal Court, 155 Ariz. 186, 188, 745 P.2d 634, 636 (App. 1987).
We thus address whether a probation-eligible defendant found guilty of aggravated DUI and, therefore, subject to a mandatory four-month term of imprisonment pursuant to § 28-1383(D) must be immediately taken into custody pursuant to Rule 7.2(b). Rule 7.2(b)(1) provides:
After a person has been convicted of any offense for which the person will in all reasonable probability suffer a sentence of imprisonment, the person shall not be released on bail or on his or her own recognizance unless it is established that there are reasonable grounds to believe that the conviction may be set aside on a motion for new trial, reversed on appeal, or vacated in any post-conviction proceeding. The release of a person pending appeal shall be revoked if the person fails to prosecute the appeal diligently.
Section 28-1383(D) provides in pertinent part:
A person is not eligible for probation, pard
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