State of Arizona v. Ramon Limon

FILED BY CLERK
IN THE COURT OF APPEALS DEC 21 2011
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO
DIVISION TWO

THE STATE OF ARIZONA, )
) 2 CA-CR 2011-0098
Appellant, ) DEPARTMENT A
)
v. ) OPINION
)
RAMON LIMON, )
)
Appellee. )
)

APPEAL FROM THE SUPERIOR COURT OF SANTA CRUZ COUNTY

Cause No. CR10050

Honorable Anna M. Montoya-Paez, Judge

DISMISSED

George E. Silva, Santa Cruz County Attorney
By Kimberly J. Hunley Nogales
Attorneys for Appellant

Law Offices of Christopher L. Scileppi, P.L.L.C.
By Christoper L. Scileppi Nogales
Attorneys for Appellee

B R A M M E R, Judge.
¶1 Pursuant to A.R.S. § 13-4032(6), the state appeals from the trial court’s

order suppressing evidence. Because the state’s notice of appeal was untimely, we

dismiss the appeal for lack of jurisdiction.

Factual and Procedural Background

¶2 Ramon Limon was charged with possession of marijuana for sale and

transportation of marijuana for sale. He filed a motion to suppress evidence discovered

during a search of his vehicle, alleging law enforcement officials had no probable cause

to search it and the search was the result of his having been questioned illegally in

violation of his Miranda1 rights. The trial court held a hearing on the motion and in a

ruling filed on January 20, 2011, granted the motion to suppress. The state filed a motion

for reconsideration, which the court denied on March 23, 2011. On March 30, 2011, the

state filed a notice of appeal from the court’s January 20 and March 23 rulings. On the

same day it filed a motion to dismiss “for purposes of appeal” and the court dismissed the

action “without prejudice for purposes of appeal” on April 4, 2011.

Discussion

¶3 We have an independent duty to determine whether we have jurisdiction.

Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App.

1997). Our jurisdiction is prescribed by statute and we have no authority to entertain an

appeal over which we do not have jurisdiction. Hall Family Props., Ltd. v. Gosnell Dev.

Corp., 185 Ariz. 382, 386, 916 P.2d 1098, 1102 (App. 1995). When a notice of appeal is

1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
untimely, we lack jurisdiction over the appeal. See State v. Berry, 133 Ariz. 264, 267,

650 P.2d 1246, 1249 (App. 1982).

¶4 “The right to appeal is strictly statutory.” Id. at 267, 650 P.2d at 1249.

Section 13-4032(6) provides the state may appeal from “[a]n order granting a motion to

suppress the use of evidence.” Rule 31.3, Ariz. R. Crim. P., states a notice of appeal

must be filed “within 20 days after the entry of judgment and sentence,” and has been

interpreted to “require[] that a notice of appeal be filed within 20 days of the order being

appealed.”2 Berry, 133 Ariz. at 266, 650 P.2d at 1248. As indicated above, the state’s

notice of appeal was filed over two months after the trial court’s order granting the

motion to suppress.

¶5 In its notice of appeal, the state cited § 13-4032(6), but purported to appeal

from both the trial court’s order granting the motion to suppress and the subsequent order

denying the state’s motion to reconsider that ruling. The notice of appeal was untimely

as to the court’s order granting the motion to suppress because it was filed more than

twenty days after the ruling. See Ariz. R. Crim. P. 31.3. And, contrary to the state’s

suggestion, the order denying the motion to reconsider is not an appealable order.

Section 13-4032 lists seven types of orders or rulings from which the state may appeal,

and a ruling on a motion for reconsideration is not among them. See State v. Ault, 157

2
We discuss below the state’s argument that, because the text of Rule 31.3 does
not refer to interlocutory orders, the “triggering event for a timely appeal” should be
dismissal.
3
Ariz. 516, 519, 759 P.2d 1320, 1323 (1988) (when legislature expresses list, generally we

assume exclusion of items not listed).

¶6 Nor did the state’s filing of a motion to reconsider the appealable order

extend the time for appealing it.3 “The filing of a motion affecting an appealable order

does not extend the time for filing an appeal from that order, in absence of a rule so

providing.”4 Berry, 133 Ariz. at 267, 650 P.2d at 1249 (filing of motion to reconsider

order dismissing count did not extend time to file notice of appeal from dismissal); see

also, e.g., State ex rel. Neely v. Rodriguez, 165 Ariz. 74, 78, 796 P.2d 876, 880 (1990)

(motion for rehearing did not suspend time limit to appeal from underlying order granting

new trial). The Arizona Rules of Criminal Procedure, unlike the Rules of Civil Appellate

Procedure, do not provide that certain motions extend the time for filing an appeal.

Berry, 133 Ariz. at 267, 650 P.2d at 1249. The procedural device for “delayed” appeals,

which is available to defendants in some circumstances, Ariz. R. Crim. P. 32.1(f), is not

available to the state “because determinable and speedy finality is an important

3
The state argues that because motions for reconsideration are allowed by
Rule 16.1(d), Ariz. R. Crim. P., not permitting those motions to extend the time for
appeal “obviate[s] the need for and purpose of Rule 16.1(d).” The same argument was
raised and rejected in Berry, 133 Ariz. at 267, 650 P.2d at 1249. The right to file the
motion does not answer the issue of “whether the filing of such a motion extends the time
for appeal.” Id.
4
The state argues Berry should be construed narrowly to control appeals from
dismissal, but not interlocutory, orders. However, Berry refers generally to motions
affecting “appealable order[s],” and we find no reason its analysis should not apply to all
orders appealable pursuant to § 13-4032, especially in the absence of authority to the
contrary. Berry, 133 Ariz. at 267, 650 P.2d at 1249.
4
constitutional and public policy consideration in favor of defendants in criminal

prosecutions.” Neely, 165 Ariz. at 78, 796 P.2d at 880.

¶7 The state alternatively argues that, because the text of Rule 31.3 does not

refer to interlocutory orders, the “triggering event for a timely appeal” should be the trial

court’s dismissal for the purposes of appeal because it is a “final adjudication of the

claim, similar to a judgment and sentence.”5 However, the plain language of §13-4032

allows the state to appeal from an “order granting a motion to suppress” without

distinguishing between interlocutory or final orders. An order granting a motion to

suppress almost always will be an interlocutory order. Furthermore, there is no mention

of dismissal in § 13-4032(6) or in Rule 31.3, and the state has identified no case where

the time for an appeal was begun by anything other than the appealable order.

¶8 We also question whether the state operated under the belief that dismissal

began the time for appeal; its notice of appeal was filed before the dismissal and therefore

would have been premature under its proposed construction of the rule.6 Regardless, we

find no reason to depart from the interpretation of Rule 31.3 articulated in Berry—that

the time for appeal begins to run from the date of the appealable order specified in

5
The state does not argue the dismissal here was appealable pursuant to
§ 13-4032(1), and it is clear the dismissal is not appealable directly. See State v. Gilbert, 172 Ariz. 402, 404, 837 P.2d 1137, 1139 (App. 1991) (state may appeal only from order
of dismissal going beyond what it requested).
6
We need not determine whether the premature notice of appeal would have been
effective nonetheless pursuant to the exception articulated in Barassi v. Matison, 130
Ariz. 418, 422, 636 P.2d 1200, 1204 (1981), but merely note it was filed before the trial
court’s order dismissing the action.
5
§ 13-4032.7 133 Ariz. at 266, 650 P.2d at 1248; see also State v. Gilbert, 172 Ariz. 402,

404, 837 P.2d 1137, 1139 (App. 1991) (dismissal without prejudice did not start clock for

appeal; clock started by subsequent appealable dismissal with prejudice).

¶9 The state urges that concluding “the appropriate triggering event for the

State’s appeal from an interlocutory order is dismissal would promote judicial economy”

and fairness. It argues the trial court should have “an opportunity for a second look at its

ruling” before an appeal is initiated. But neither the plain language of § 13-4032 nor the

language of Rule 31.3 permit us to consider this policy to allow appeals from orders other

than those they designate. And, as discussed above, this interpretation of Rule 31.3 is

contradicted by case law, and the state offers no authority to support its suggestion that

considerations of judicial economy or fairness compel a contrary conclusion. It also fails

to explain why this policy concern should be weighed differently in this case than in

analogous case law and civil rules that do not allow a motion for reconsideration to

extend the time for appeal, even though the impact on judicial economy and a trial court’s

“opportunity for a second look” before appeal ostensibly are the same in those contexts.

See, e.g., Berry, 133 Ariz. at 267, 650 P.2d at 1249; see also Ariz. R. Civ. P. 7.1(e); Ariz.

R. Civ. App. P. 9(b). Nor does the state address the competing policy concerns that may

arise if the time for appeal is not begun until an order has been entered after a request

7
This is also consistent with the Arizona Appellate Handbook’s (AAH)
interpretation of the rule. 1B State Bar of Arizona, AAH § 4.2.3.2, at 4-9 (5th ed. 2010)
(“[T]he notice of appeal must be filed within 20 days after entry of the judgment and
sentence, or the date of the order from which the appeal is taken.”); see also Barassi, 130
Ariz. at 420 n.4, 636 P.2d at 1202 n.4 (noting AAH interpretation of rule, although not
binding on court).
6
made by the state at a time of its choosing. Therefore, the time within which the state

needed to appeal began when the court entered its January 20, 2011, appealable order

granting the motion to suppress.

Disposition

¶10 For the foregoing reasons, the state’s notice of appeal was untimely.

Because we lack jurisdiction over this appeal, we dismiss it.

/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge

CONCURRING:

/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge

/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge

7