Court of Appeals of Arizona, First Division, Department B
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yavapai County Cause No. P1300CR201300070 The Honorable Cele Hancock, Judge.
Sheila Sullivan Polk, Yavapai County Attorney Prescott By Cody W. Johnson, Deputy County Attorney, Attorneys for Appellant.
Law Office of Daniel DeRienzo, P.L.L.C. Prescott Valley By Daniel J. DeRienzo, Attorney for Appellee.
PATRICIA K. NORRIS, Judge.
¶1 Appellant State of Arizona appeals the superior court's order dismissing a misdemeanor criminal prosecution against Appellee Daniel Joseph DeRienzo. As we explain, the superior court should not have dismissed the prosecution. Accordingly, we vacate the dismissal and remand for further proceedings consistent with this decision.
FACTS AND PROCEDURAL BACKGROUND
¶2 The Prescott Valley Police Department issued DeRienzo an "Arizona Traffic Ticket and Complaint" for allegedly committing misdemeanor criminal damage in violation of Arizona Revised Statutes ("A.R.S.") section 13-1602(A)(1) (2010) . DeRienzo appeared in Prescott Justice Court for arraignment on December 12, 2012 and entered a not guilty plea. A prosecutor was not present at the arraignment ("justice court case"). Five days later, on December 17, 2012, DeRienzo filed a "Notice of Defenses/Rule 15.2 Disclosure" and a motion for change of judge. Neither the notice nor the motion reflected service on the State. On December 26, 2012, the justice court granted DeRienzo's motion for change of judge.
¶3 On January 8, 2013, the State offered DeRienzo a plea agreement. The justice court held a pretrial conference on January 14, 2013; DeRienzo and a prosecutor from the Yavapai County Attorney's Office appeared. DeRienzo informed the court he had rejected the plea offer and intended to file a motion to determine counsel based on what he alleged was a conflict of interest with the Yavapai County Attorney's Office. The justice court agreed to address the motion at a pretrial conference it scheduled for February 11, 2013.
¶4 On January 18, 2013, the State moved to dismiss the justice court case without prejudice because it "ha[d] been transferred to Superior Court." The State mailed a copy of its motion that same day to DeRienzo. The justice court granted the motion on January 22, 2013 and on January 24, 2013 mailed a copy of the dismissal order to the State but not to DeRienzo.
¶5 On the same day the State moved to dismiss the justice court proceeding, it re-filed the case in the superior court ("superior court case"). DeRienzo moved to dismiss asserting, as relevant here, the State had filed the superior court case because it feared the justice court might remove the State from the justice court case when it heard his motion to determine counsel and was, thus, improperly "forum shopping." The State did not respond to the motion.
¶6 At a February 5, 2013 early disposition hearing, the superior court did not directly address DeRienzo's motion, but, after confirming the general procedural history of the justice court case with the State, dismissed the superior court case without prejudice to the State re-filing it in justice court. The superior court denied the State's motion to reconsider, reasoning, "[t]he case was pending for over a month in City Court [sic] . As the case was originally filed in the Prescott City Court [sic], that is where the case started and should remain."
¶7 The State argues the superior court should not have dismissed the superior court case because, by statute and rule, it may file misdemeanor actions in the superior court. See generally A.R.S. § 12-123(A) (Supp. 2012) (superior court has original and concurrent jurisdiction with justices of the peace of misdeamenanors when penalty does not exceed $2500 fine or six months imprisonment); Ariz. R. Crim. P. ...