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State v. White

Court of Appeals of Arizona, Second Division, Department A

July 15, 2013

THE STATE OF ARIZONA, Appellee,
v.
ROBERT RAY WHITE, Appellant.

Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20104225001 Honorable Deborah Bernini, Judge

West, Elsberry, Longenbaugh & Zickerman, PLLC By Anne Elsberry Tucson Attorneys for Appellant.

MEMORANDUM DECISION

JOSEPH W. HOWARD, Chief Judge

¶1 Appellant Robert White was convicted after a jury trial of possession of methamphetamine, possession of cocaine, and conducting a business or professional transaction without a required license. The trial court sentenced him to concurrent jail terms, the longest of which was one year. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), stating she has reviewed the record but found no "arguable meritorious issues" to raise on appeal and asking us to review the record for fundamental error. White has not filed a supplemental brief

¶2 We view the evidence in the light most favorable to upholding the jury's verdicts. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In 2010, White performed or offered to perform a procedure on several women—"ozone therapy" as a medical treatment using medical-grade oxygen—without having the appropriate license to administer medical-grade oxygen. Cocaine and methamphetamine were found during a search of his home. This evidence is sufficient to support his convictions. See A.R.S. §§ 13-3401(5), (6)(a)(xxxiv), (20)(z); 13-3407(A)(1); 13-3408(A)(1); 13-3706.

¶3 White's sentences are within the prescribed statutory range and were imposed lawfully. See A.R.S. §§ 13-702(D); 13-707(A)(2); 13-901(F), 13-901.01(A), (H)(4); 13-3407(B)(1); 13-3408(B)(1); 13-3706(B). The sentencing minute entry, however, provides that the "fines, fees, assessments and/or restitution" the court had imposed were "reduced to a Criminal Restitution Order [CRO] . . . ." But this court has determined that, based on A.R.S. § 13-805(C), "the imposition of a CRO before the defendant's probation or sentence has expired 'constitutes an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 909 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). Therefore, this portion of the sentencing minute entry is not authorized by statute.

¶4 Pursuant to our obligation under Anders, we have searched the record for fundamental, reversible error and found none save the improper criminal restitution order. See State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985) (Anders requires court to search record for fundamental error). The criminal restitution order is vacated; White's convictions and sentences are otherwise affirmed.

CONCURRING: GARYE L. VÁSQUEZ, Presiding Judge, MICHAEL MILLER, Judge


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