Heath v. Kiger

158 P.3d 248, 215 Ariz. 119, 504 Ariz. Adv. Rep. 39, 2007 Ariz. App. LEXIS 83
CourtCourt of Appeals of Arizona
DecidedMay 24, 2007
DocketNo. 1 CA-SA 06-0197
StatusPublished
Cited by1 cases

This text of 158 P.3d 248 (Heath v. Kiger) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heath v. Kiger, 158 P.3d 248, 215 Ariz. 119, 504 Ariz. Adv. Rep. 39, 2007 Ariz. App. LEXIS 83 (Ark. Ct. App. 2007).

Opinions

OPINION

OROZCO, Judge.

¶ 1 This special action arises from the trial court’s granting of the Yavapai County Attorney’s Office’s (State) motion to hold Sarah M. Heath (Petitioner) without bond, pursuant to Article 2, Section 22.A.2, of the Arizona Constitution. Petitioner argues that the trial court erred because at the time she was ordered detained, she was released on her own recognizance (OR) and not “admitted to bail” under Art. 2, § 22.A.2. We previously issued an order accepting jurisdiction, granting relief and stating that Art. 2, § 22.A.2, of the Arizona Constitution did not prevent a trial court from exercising its discretion when considering whether to grant Petitioner release under appropriate circumstances. We also stated that a written decision would follow, this is that decision.

FACTS AND PROCEDURAL HISTORY

¶ 2 On March 29, 2005, in CR82005-0216 (2005 case), Petitioner was arrested and charged with Possession or Use of Dangerous Drugs, Possession of Marijuana and Possession of Drug Paraphernalia. On May 2, 2005, Petitioner entered into a plea agreement wherein she pled guilty to Possession or Use of Dangerous Drugs, a class four felony; Possession of Marijuana, a class six felony; and Possession of Drug Paraphernalia, a class six undesignated felony. The plea agreement included a section exonerating any bond and releasing Petitioner OR. The court approved the terms of the plea agreement, exonerated the bond and released Petitioner OR.

¶ 3 The plea agreement also provided that Petitioner would be allowed to participate in the Treatment Assessment Screening Center (TASC) Program and sentencing would be deferred. The plea agreement further stated that Petitioner would be deemed to have failed the TASC program if she “fail[ed] to obey all laws ... prior to sentencing.”

¶4 After Petitioner completed the TASC program, the State filed a motion to set the matter for sentencing. The court initially set Petitioner’s sentencing for May 15, 2006, but Petitioner failed to appear. The court reset Petitioner’s sentencing for June 5, 2006.

¶5 On June 4, 2006, the day before her sentencing date, Petitioner was arrested for Possession or Use of Dangerous Drugs, a class four felony; Possession or Use of Marijuana, a class six felony; and Possession or Use of Drug Paraphernalia, a class six felony.

¶ 6 The next morning, in ease number CR82006-0397 (2006 case), Petitioner posted bond and was released from jail. That afternoon, Petitioner was sentenced in the 2005 case for Possession of Drug Paraphernalia, a misdemeanor.

¶7 On June 22, 2006, the State filed a Motion to Hold Defendant Non-Bondable in the 2006 ease and requested an evidentiary hearing. On July 10, 2006, the trial court denied the motion without prejudice because the Petitioner had been sentenced to a misdemeanor in the 2005 ease. Subsequently, [121]*121the State filed a second Motion to Hold Defendant Non-Bondable and again requested an evidentiary hearing to present evidence that the “proof is evident or presumption great” that Petitioner committed the felony charges while on release from the 2005 ease and again cited to Art. 2, § 22.A.2.

¶ 8 Petitioner responded and requested the trial court deny the motion because she was not “admitted to bail” under Art. 2, § 22.A.2 in the 2005 case at the time she allegedly committed the offenses in the 2006 case.

¶ 9 An evidentiary hearing was held on August 25, 2006, in the 2006 case. At the conclusion of the hearing, the trial court found Petitioner was on felony release when the State charged her in the 2006 case. It also found “there [was] proof evident or presumption great as to possession of drug paraphernalia,” but it did not find that the State had met that standard on the other charges. The trial court ordered Petitioner “held without bail until further order of the court.”

¶ 10 Petitioner filed this special action asking this court to review the trial court’s decision to hold her without bond.

SPECIAL ACTION JURISDICTION

¶ 11 This court’s special action jurisdiction is discretionary. State v. Super. Ct. (Norris), 179 Ariz. 343, 344, 878 P.2d 1381, 1382 (App.1994). (Citation omitted.) We accept jurisdiction because this matter raises an issue of first impression and statewide importance. State v. Brown (McMullen), 210 Ariz. 534, 537, 115 P.3d 128, 131 (App.2005).

DISCUSSION

¶ 12 Under Art. 2, § 22.A.2, of the Arizona Constitution “[a]ll persons charged with crime shall be bailable by sufficient sureties, except: ... For felony offenses, committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the presumption great as to the present charge.” (Emphasis added.) There is no definition for “admitted to bail.” Therefore, the issue is whether “admitted to bail” includes OR release.

¶ 13 Arizona Rules of Criminal Procedure 7.1.a defines “[o]wn recognizance” as a “release without any condition of an undertaking relating to, or deposit of, security.” Additionally, Rule 7.1.c defines “secured appearance bond” as “an appearance bond secured by deposit with the clerk of security equal to the full amount thereof.” The comments to this rule state that “ ‘secured appearance bond’ is used instead of ‘bail’ ” Moreover, the comments to Rule 7.1.b state “[t]he rule substitutes for ‘bail bond’ and ‘bail’ the term ‘appearance bond’ which emphasizes the role of unsecured bonds.” Clearly, Arizona distinguishes between being released OR and being released with the posting of a secured or unsecured appearance bond or bail.

¶ 14 Additionally, many current Arizona statutes differentiate between being released OR and being released on bail. See, e.g., Arizona Revised Statutes (A.R.S.) Section 13-604.R (Supp.2006) (noting that “[a] person who is convicted of committing any felony offense, which felony offense is committed while the person is released on bail or on the defendant’s own recognizance on a separate felony offense” must have her sentence -increased by two years) (emphasis added); § 13-3967.A (Supp.2006) (stating that “any person who is charged with a public offense that is bailable as a matter of right shall be ordered released pending trial on his own recognizance or on the execution of bail in an amount specified by the judicial officer”) (emphasis added); § 13-4082 (2001) (allowing a magistrate to order witnesses to provide security for their appearances through the “depositing of money or bonds as provided upon the admission of a defendant to bail ”) (emphasis added); see also Arizona Rules of Criminal Procedure 7.2.b(l) (distinguishing between being released on bail and being released OR: “the person shall not be released on bail or on his or her own recognizance.”) (Emphasis added.)

¶ 15 Petitioner argues that she was released OR and thus not “admitted to bail” under Art. 2, § 22.A.2. We agree. At the time Petitioner was arrested in the 2006 ease, the plea agreement clearly stated that she was released OR. Because Arizona distin[122]*122guishes between being released OR and bail release, she was not “admitted to bail” at the time of her arrest in the 2006 case.

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Related

Heath v. Kiger
176 P.3d 690 (Arizona Supreme Court, 2008)

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Bluebook (online)
158 P.3d 248, 215 Ariz. 119, 504 Ariz. Adv. Rep. 39, 2007 Ariz. App. LEXIS 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heath-v-kiger-arizctapp-2007.