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§ 13-4033(C); -85, 88, ¶¶ 3-4, 20 (App. 2011) (When a defendant has voluntarily delayed sentencing by more than 90 days, this court is without jurisdiction to decide conviction issues raised on the direct appeal.).

The State then filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the court of appeals did not have jurisdiction over Johnson’s appeal under § 13-4033(C)

¶ 20 (App. 2011) (waiver of right to appeal pursuant to § 13-4033(C) requires the defendant “has been informed he could forfeit the right to appeal” by absconding).

knowing, voluntary, and intelligent.” ¶ 20 (App. 2011).

occurring within ninety days after conviction and the defendant fails to prove by clear and convincing evidence at the time of sentencing that the absence was involuntary.” But because the right to appeal is constitutional, a defendant only waives his right to appeal under the statute if his “voluntary delay of sentencing can be regarded as knowing, voluntary, and intelligent.” ¶ 20 (App. 2011).

Ariz. Const. art. 2, § 24; accord Raffaele, 249 Ariz. at 478, ¶ 10; ¶ 16 (App. 2011).

¶ 20 (App. 2011) (concluding A.R.S.

However, because the right to appeal a criminal conviction in Arizona is constitutional, we must determine whether his waiver was “knowing, voluntary, and intelligent.” ¶ 20 (App. 2011).

But because the record before us does not appear to contain evidence that Nunnery was informed that his voluntary delay of sentencing for more than 90 days would result in a waiver of his appeal rights, ¶ 20 (App. 2011), we find no waiver.

See State v. Goldsmith , , 400, , 1099 (1975) (rejecting, as "completely without merit," State's argument "that the appeal should be dismissed because [the defendant] had not been apprehended as of the date that his appeal was filed"); State v. Bolding , , 88 ¶ 20, , 285 (App. 2011) (concluding statute prohibiting appeal based on defendant's absence at sentencing is constitutional if absence was "a knowing, voluntary, and intelligent waiver of his constitutional right to appeal," but finding sta

State v. Bolding , , ¶ 18

This statute has been construed to apply only when the superior court notified the defendant on the record that absconding could deprive the defendant of his constitutional right to appeal and that the waiver is deemed “knowing, voluntary and intelligent.” ¶¶ 18–20

Such waiver, however, must be knowing, voluntary and intelligent, with such an inference properly drawn “only if the defendant has been informed he could forfeit the right to appeal if he voluntarily delays his sentencing for more than ninety days.” ¶ 20

See, , (“A judgment of conviction is final only when a verdict has been rendered, whether by jury or the trial court after a bench trial, and sentence has been ‘orally *63 pronounced in open court and entered on the clerk’s minutes.’”), , 267 n.