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State v. Waters

Court of Appeals of Arizona, First Division

December 3, 2013

STATE OF ARIZONA, Appellee,
v.
BRITTANY WATERS, Appellant.

         Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CR2011-006960-001 The Honorable Pamela Hearn Svoboda, Judge.

Arizona Attorney General's Office, Phoenix By Michael T. O'Toole Counsel for Appellee.

Maricopa County Public Defender's Office, Phoenix By Stephen J. Whelihan Counsel for Appellant.

Chief Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Margaret H. Downie and Judge John C. Gemmill joined.

MEMORANDUM DECISION

JOHNSEN, JUDGE

¶1 Brittany Waters was convicted of aggravated assault, a Class 3 dangerous felony, and sentenced to five years' incarceration. The superior court also ordered her to "submit to DNA testing for law enforcement identification purposes and pay the applicable fee for the cost of that testing in accordance with [Arizona Revised Statutes ("A.R.S.")] § 13-610."

¶2 On appeal, Waters does not dispute her conviction nor the term of incarceration the superior court imposed. She argues only that the court erred by ordering her to pay for DNA testing pursuant to A.R.S. § 13-610 (2013).[1] 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 Waters was sentenced, the court erred by imposing the collection fee. We therefore modify the judgment of conviction to omit the requirement that Waters pay the cost of DNA testing.


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