Appeal and Special Action Proceeding from the Superior Court in Pinal County Nos. CV201200148, CV201300719
April P. Elliott, Pinal County Public Defender, Lisa M. Surhio and David T. Wilkison, Assistant Public Defender, Florence  Counsel for Petitioner/Appellant.
M. Lando Voyles, Pinal County Attorney, Ronald S. Harris and Ivan S. Abrams, Deputy County Attorneys, Florence Counsel for Real Party in Interest/Respondent/Appellee.
Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.
¶1 In this consolidated special action and appeal from the trial court's denial of a petition for writ of habeas corpus, Steven Fuller seeks relief from his continued detention on a petition filed by the state alleging he is a sexually violent person. Specifically, he maintains that his rights under Arizona statutes and the Due Process Clauses of the Arizona and United States Constitutions have been violated because he did not receive a trial within 120 days of the state's filing of the petition, as required by A.R.S. § 36-3706, and because he did not receive appointment of counsel, a professional evaluation, or a prompt probable cause hearing in conformity with A.R.S. §§ 36-3704(C), 36-3705(C), and 36-3705(G). In essence, we must determine whether the state may continue to detain a person and proceed with a petition alleging the person is sexually violent when it has neglected to pursue that petition for over a year, and when the person now has been detained without a trial for over twenty months. For the following reasons, we accept jurisdiction and grant relief.
Factual and Procedural Background
¶2 On January 19, 2012, the state filed a petition and order for detention alleging that respondent, Steven Fuller, was a sexually violent person (SVP) under A.R.S. § 36-3701(7). The Pinal County Superior Court found probable cause to believe Fuller was an SVP, ordered his detention, and ordered the clerk of the court to notify the public defender's office. The court issued an order and notice that Fuller had ten days to request a probable cause hearing and that if he did not, the hearing would be waived. However, the public defender's office did not receive notice of the petition and was not appointed to represent Fuller. Moreover, the notice sent to Fuller did not include contact information for the court or the public defender's office, and Fuller did not request a probable cause hearing.
¶3 Pursuant to the trial court's order, Fuller was transferred from the Arizona Department of Corrections to the Arizona State Hospital (ASH) on January 23, 2012. For over a year, the state overlooked Fuller's case while he remained in detention on the petition. No court dates were sought or scheduled and the state took no steps to prosecute the petition. Although ASH provided housing and general medical care, Fuller did not receive treatment designed to address his alleged propensity for sexual violence. In February 2013, the Pinal County Superior Court Director of Treatment Services notified the state that she had received a bill for Fuller's care indicating that his case still was in the pretrial phase. On March 5, 2013, the state filed a motion to set a hearing in Fuller's case and to appoint counsel for Fuller. On March 11, the court set a status review hearing and appointed the Pinal County Public Defender's Office to represent Fuller.
¶4 Fuller then filed a motion to dismiss the petition for detention and a petition for a writ of habeas corpus based on the trial court's failure to appoint counsel, schedule a timely probable cause hearing, and conduct a trial within 120 days, as provided by §§ 36-3704, 36-3705, and 36-3706. The trial court denied his petition and motion, finding it was not required to appoint counsel, Fuller had waived his right to a probable cause hearing, and the language in § 36-3706 stating that a court "shall conduct a trial" within 120 days of the petition is merely "directory." The court also concluded that, even if the provision is mandatory, the delay was occasioned by the court, and § 36-3706 authorized continuation of the trial so long as Fuller had not been substantially prejudiced, which the court so found. This consolidated appeal and petition for special action followed the entry of the court's order.
¶5 We have jurisdiction to hear the habeas appeal pursuant to A.R.S. § 12-120.21(A)(1). See Drury v. Burr, 107 Ariz. 124, 125, 483 P.2d 539, 540 (1971) ("Court of Appeals . . . has appellate jurisdiction over [habeas] causes originating in the Superior Court"). We likewise have jurisdiction to hear special actions pursuant to § 12-120.21(A)(4). Our decision to accept special action jurisdiction in a particular case is discretionary. See State ex rel. Romley v. Fields, 201 Ariz. 321, ¶ 4, 35 P.3d 82, 84 (App. 2001). Acceptance of special action jurisdiction is appropriate when a case presents a novel question of statewide importance that is also a question of law. Id. Here, we are presented with two such questions: (1) whether, under the circumstances here, the state violated the requirements of § 36-3706 by failing to bring Fuller to trial within 120 days, and (2) if the statutory deadline has been violated, what remedy is appropriate. For this court to accept special action jurisdiction, it also is necessary that the petitioner have no "equally plain, speedy, and adequate remedy by appeal." Ariz. R. P. Spec. Actions 1(a). Although Fuller's petition for habeas corpus may entitle him to release, it does not provide for dismissal of the proceeding against him. See State v. Abbott, 103 Ariz. 336, 339, 442 P.2d 80, 83 (1968) ("The sole function of habeas corpus is to obtain the release of one unlawfully detained."). We therefore accept special action jurisdiction and, for the following reasons, find relief appropriate under both the habeas corpus and special action petitions.
¶6Section 36-3706 provides in pertinent part as ...