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State v. Montgomery

Court of Appeals of Arizona, First Division

November 12, 2013

STATE OF ARIZONA, Appellee,
v.
LEROY MONTGOMERY, Appellant.

Appeal from the Superior Court in Maricopa County No. CR2012-006324-001 The Honorable John R. Ditsworth, Judge

Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee

Christopher Winchell, Tempe Counsel for Appellant

Presiding Judge Andrew W. Gould delivered the opinion of the Court, in which Judge Donn Kessler and Judge Michael J. Brown joined.

OPINION

GOULD, Judge

¶1 Appellant Leroy Montgomery ("Montgomery") seeks reconsideration of this court's order dismissing his appeal as untimely. Montgomery relies on State v. Whitman, 232 Ariz. 60, 301 P.3d 226 (App. 2013), in which a divided panel of this court held that the time for filing the notice of appeal in a criminal case runs from the filing of the minute entry containing the judgment and sentence. For the reasons discussed below, we respectfully disagree with the majority opinion in Whitman, and conclude that the relevant rules of criminal procedure clearly provide that the time for filing a notice of appeal runs from the date of sentencing. We therefore deny Montgomery's motion for reconsideration.

Background

¶2 Montgomery was sentenced on August 16, 2013. The minute entry containing the judgment and sentence was filed on August 19. Arizona Rule of Criminal Procedure 31.3 provides in part that a notice of appeal must be filed "within 20 days after the entry of judgment and sentence." Twenty-four days after the court sentenced Montgomery, but twenty days after the minute entry memorializing the judgment and sentence was filed, Montgomery filed his notice of appeal. Because Montgomery's notice of appeal was not filed within twenty days of the date of sentencing, this court dismissed the appeal for lack of jurisdiction. See State v. Littleton, 146 Ariz. 531, 533, 707 P.2d 329, 331 (App. 1985) (time limits for filing the notice of appeal are jurisdictional).

The Whitman opinion

¶3 Whitman was sentenced on December 7, 2011. The sentencing minute entry was filed on December 9. Whitman filed his notice of appeal on December 28. Calculating the time for filing the notice of appeal from the day of sentencing, the state argued Whitman's notice was untimely. Whitman first agreed that he had twenty days from the date of sentencing to file his notice. Whitman, 232 Ariz. at 75, n.11, ¶ 61, 301 P.3d at 241, n.11. Thus, he conceded that his notice had been untimely filed. Id., at 61, ¶ 3, 301 P.3d at 227. However, after the court ordered supplemental briefing, Whitman changed his position and argued that his notice had been timely filed because the time for filing the notice runs from the date the sentencing minute entry is filed.

¶4 On appeal, the majority in Whitman determined that because our rules of criminal procedure do not expressly state when the "entry" of judgment and sentence occurs, there is an "ambiguity regarding the time for taking an appeal." Id., at 62, ¶ 4, 301 P.3d at 228. To resolve this ambiguity and to ascertain the intent of our supreme court, the majority analyzed the history of our criminal rules and comments to those rules. The court also compared the criminal rules to civil rules and cases addressing the entry of judgment, and concluded that entry of judgment and sentence occurs when a minute entry is filed with the clerk of the court.

¶5 Judge Miller dissented, concluding that Ariz. R. Crim. P. 26.16(a) resolved any possible ambiguity:

[T]he rule's plain statement that judgment and sentence "are complete and valid as of the time of their oral pronouncement in open court, " makes the clause unambiguous. Ariz. R.Crim. P. 26.16(a). Entry of judgment and sentence occurs at the time of sentencing and it starts the clock for filing a ...

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