Court of Appeals of Arizona, First Division, Department S
October 10, 2013
STATE OF ARIZONA, Appellee,
MANUEL RAFAEL ACOSTA, Appellant.
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2012-129016-001 The Honorable Pamela Hearn Svoboda, Judge.
Thomas C. Horne, Attorney General Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Colby Mills, Assistant Attorney General Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender Phoenix By Jeffrey L. Force, Deputy Public Defender Attorneys for Appellant.
DIANE M. JOHNSEN, CHIEF JUDGE
¶1 Manuel Acosta was convicted of three counts of disorderly conduct and one count of unlawful discharge of a firearm, all Class 6 felonies. He was sentenced to consecutive terms of incarceration and ordered to "submit to DNA testing for law enforcement identification purposes and pay the applicable fee for the cost of that testing."
¶2 On appeal, Acosta does not dispute his convictions nor the terms of incarceration the superior court imposed. He argues only that the court committed fundamental error by ordering him to pay for DNA testing pursuant to Arizona Revised Statutes ("A.R.S.") section 13-610 (2013). 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 Acosta was sentenced, the court erred by imposing the collection fee. We therefore modify the judgment of conviction to omit the requirement that Acosta pay for the cost of DNA testing.
¶3 For the reasons stated, we affirm Acosta's convictions and sentences as modified.
CONCURRING: RANDALL M. HOWE, JUDGE, DONN KESSLER, JUDGE.