State v. Gonzalez

Opinion

NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

SARA GONZALEZ, Appellant.

No. 1 CA-CR 13-0348 FILED 07-01-2014

Appeal from the Superior Court in Maricopa County No. CR2012-137145-001

The Honorable John R. Ditsworth, Judge

CONVICTION AFFIRMED; JUDGMENT AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix By Louise Stark Counsel for Appellant

STATE v. GONZALEZ Decision of the Court

MEMORANDUM DECISION

Chief Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Margaret H. Downie and Judge John C. Gemmill joined.

J O H N S E N, Judge:

¶1 Sara Gonzalez was convicted of second-degree burglary, a Class 3 felony. The superior court suspended imposition of sentence and imposed a two-year term of probation. In its written judgment, the court also ordered Gonzalez to "submit to DNA testing for law enforcement identification purposes and pay the applicable fee for the cost of that testing in accordance with [Arizona Revised Statutes ("A.R.S.")] § 13-610."

¶2 On appeal, Gonzalez does not dispute her conviction nor the term of probation the superior court imposed. She argues only that the court erred by ordering her to pay for DNA testing pursuant to A.R.S. § 13–610 (2014). 1 The State confesses error, acknowledging that in State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013), this court held that A.R.S. § 13–610 does not authorize the court to impose a DNA collection fee on a convicted defendant. We agree that pursuant to Reyes, which was issued after Gonzalez was sentenced, the court erred by imposing the collection fee. We therefore modify the judgment of conviction to omit the requirement that Gonzalez pay the cost of DNA testing.

:gsh

1 Absent material revision after the alleged offense, we cite a statute's current version.