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State v. Paz-Lucero12/11/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
BRAMMER, Presiding Judge
After a jury trial, appellant Oscar Antonio Paz-Lucero was convicted of aggravated driving under the influence of an intoxicant (DUI) with a suspended or revoked license; aggravated driving with a blood-alcohol concentration of.10 or more with a suspended or revoked license; aggravated DUI with two prior DUI convictions; and aggravated driving with a blood-alcohol concentration of.10 or more with two prior DUI convictions. The trial court placed him on three years' probation and sentenced him to a four-month term of imprisonment, but credited him with four months' pretrial incarceration. On appeal, Paz-Lucero contends that his speedy trial rights were violated under the state and federal constitutions and under Rule 8, Ariz. R. Crim. P., 16A A.R.S. We disagree and affirm.
Procedural History
We view the facts in the light most favorable to sustaining the jury verdicts and resolve all reasonable inferences against Paz-Lucero. See State v. Riley, 196 Ariz. 40, 992 P.2d 1135 (App. 1999). Paz-Lucero was arrested in December 1998 when a police officer observed him driving erratically. He was subsequently convicted in a separate DUI case and in June 1999 was sentenced to a prison term of 2.5 years for that conviction. In May 1999, the state successfully moved to dismiss these charges without prejudice. The state re-indicted Paz-Lucero on July 1, 1999, and attempted to serve him the summons by mailing it to his last known residence by certified mail. The summons was returned with an "attempted, not known" stamp on the envelope, dated "7-9-99." A warrant was issued for his arrest, and on July 6, 1999, the state offered Paz-Lucero a plea agreement, which he apparently rejected.
In December 2000 the trial court issued a writ of habeas corpus ad prosequendum requested by the state pursuant to which Paz-Lucero, in February 2001, was transported for an initial appearance and arraignment. The trial court granted Paz-Lucero two trial continuances, and a pretrial conference was reset at least twice without objection from Paz-Lucero. Paz-Lucero waived time in May 2001, and his trial was reset twice at the state's request, again without any objection. In October, Paz-Lucero objected to a third request by the state to continue the trial but withdrew that objection four days later. A month later, Paz-Lucero moved to dismiss the charges with prejudice, arguing that his due process and Rule 8.2(a) speedy trial rights had been violated by the delay. The trial court denied the motion and Paz-Lucero's jury trial followed.
Discussion
Rule 8
Paz-Lucero now contends that "the delay between the [December 1998] arrest... and the [February 2001] arraignment..., during which time the State did not use due diligence to serve with the charges, mandated dismissal with prejudice." We review the trial court's denial of Paz-Lucero's motion to dismiss for an abuse of discretion. State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260 (1997); State v. Lemming, 188 Ariz. 459, 937 P.2d 381 (App. 1997). When Paz-Lucero was re-indicted in July 1999, Rule 8.2(a) provided that " very person against whom an indictment... is filed shall be tried by the court... within 150 days of the arrest or service of summons." Here, Paz-Lucero was "arrested" on these charges when the writ of habeas corpus ad prosequendum was served upon him, and he was subsequently brought from prison to be arraigned on February 13, 2001. The state's ability to try a criminal defendant is not limited to the period within 150 days after the initial detention on the date o
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