Publication – Rule 111(c), Rules of the Arizona Supreme
for Review from the Superior Court in Pima County No.
CR056376 The Honorable Richard S. Fields, Judge
Barbara LaWall, Pima County Attorney By Nicolette Kneup,
Deputy County Attorney, Tucson Counsel for Respondent
Jonathan B. Edgar, Kingman In Propria Persona
Staring authored the decision of the Court, in which Judge
Vásquez and Judge Miller concurred.
Jonathan Edgar seeks review of the trial court's order
denying his motion to vacate judgment, which the trial court
characterized as a successive, of-right petition for
post-conviction relief filed pursuant to Rule 32, Ariz. R.
Crim. P. We will not disturb that order unless the court
clearly abused its discretion. See State v. Swoopes,
216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App.
2007). Edgar has not met his burden of demonstrating such
Edgar pled guilty in June 1997 to second-degree burglary. The
trial court suspended the imposition of sentence and placed
him on a five-year term of probation. In May 1998, the state
filed a petition to revoke Edgar's probation, asserting
inter alia that he had changed his residence without
permission and that his current whereabouts were unknown.
Edgar was arrested in 2014, after which he admitted
absconding from probation. The court revoked his probation
and imposed a seven-year prison term. He sought
post-conviction relief, raising a sentencing
claim. The trial court denied relief, and this
court denied relief on review. State v. Edgar, No. 2
CA-CR 2015-0047-PR (Ariz. App. July 14, 2015) (mem.
While his first petition for review was pending, Edgar filed
a motion to vacate the judgment, citing Rule 60, Ariz. R.
Civ. P., and arguing the trial court lacked jurisdiction to
revoke his probation because his probationary period had
expired. The court determined Edgar's filing, in effect,
was a petition for post- conviction relief pursuant to Rule
32 and ordered the state to respond. After the state
responded and Edgar filed his reply, the court denied relief
after oral argument. This petition for review followed the
court's denial of Edgar's motion for rehearing.
On review, Edgar repeats his argument that the trial court
did not have jurisdiction to revoke his probation because his
probation period had expired. To the extent Edgar's
arguments require us to interpret statutes, our review is de
novo. Fragoso v. Fell, 210 Ariz. 427, ¶ 7, 111
P.3d 1027, 1030 (App. 2005). Our primary task is to give
effect to legislative intent, and the statute's plain
language is the best indicator of that intent. State v.
Lee, 236 Ariz. 377, ¶ 16, 340 P.3d 1085, 1090 (App.
2014). Thus, if the statute's language is unambiguous,
"we need not look further to determine the statute's
meaning and apply its terms as written" without applying
other principles of statutory construction. Id. In
interpreting court rules, we follow the same approach,
applying the rule's unambiguous language as the best
indication of the supreme court's intent in promulgating
the rule. State v. Harden, 228 Ariz. 131, ¶ 6,
263 P.3d 680, 681 (App. 2011).
A trial court lacks jurisdiction to revoke probation if the
probationary period has expired. State v. Chacon,
221 Ariz. 523, ¶ 6, 212 P.3d 861, 864 (App. 2009). And,
to comport with due process, a revocation hearing "must
be held within a reasonable time" following the filing
of a petition to revoke. State v. Adler, 189 Ariz.
280, 282, 942 P.2d 439, 441 (1997). But, unless a court
ultimately determines the defendant did not violate the terms
of probation, "[t]he running of the period of probation
shall cease during the period from the filing of the petition
to revoke probation to the termination of revocation of
probation proceedings." A.R.S. § 13-903(D). As
noted above, the state filed the petition to revoke
Edgar's probation before his probationary term expired.
As such, it was tolled for the intervening years until he was
arrested and his probation revoked.
Edgar argues, however, that § 13-903(D) does not apply
to him because the state was required to proceed with the
revocation of his probation in absentia pursuant to Rule
27.10, Ariz. R. Crim. P., and therefore the state was not
sufficiently "diligent when seeking a remedy." Rule
27.10 provides: "A proceeding to revoke probation in
absentia shall be commenced only after the probationer's
whereabouts are unknown to the probation officer for at least
60 days." We agree with the trial court that the
rule's language cannot reasonably be read to require the
state to proceed with revocation if the probationer's
whereabouts are unknown for sixty days; instead, that plain
language permits revocation in the probationer's absence
only if that condition is met. And, even if Rule 27.10 did
require the state to proceed, Edgar has not established that
violating that rule would create a jurisdictional defect.
Edgar cites State v. Flemming, 184 Ariz. 110, 907
P.2d 496 (1995), for the proposition that the state's
undue delay in pursuing revocation can deprive a court of
jurisdiction. In Flemming, our supreme court
addressed the time limits of former Rule 27.7, Ariz. R. Crim.
P., governing the time between "the service of summons
or arrest on a warrant in a probation revocation
proceeding."  Flemming, 184 Ariz. at 115, 907
P.2d at 501. The supreme court noted the rule was intended
"to ensure that a probationer's due process rights
are not violated by undue delay in probation revocation
procedures." Id. It further observed that the
time limits were not jurisdictional. Id.
Although the court in Flemming suggested that delays
between the filing of a petition to revoke and the hearing
could implicate due process concerns, the case is readily
distinguishable because Flemming was in jail for the entire
duration of the delay.Id. at 112, 115, 907 P.2d at
498, 501; see also Adler, 189 Ariz. at 282,
942 P.2d at 441 (due process required revocation hearing to
be "held within a reasonable time"). But, even if
the delay here constituted a due process violation, by
admitting that he had violated the terms of his probation,
Edgar has waived all non-jurisdictional defects save those
related to the voluntariness of that admission. See State
v. Quick,177 Ariz. 314, 316, 868 P.2d 327, 329 (App.
1993). And Edgar has identified no basis for us to conclude
that a delay between the filing of a petition to revoke and
revocation would create a jurisdictional defect when the
delay between arrest and revocation does not. See
Flemming, 184 Ariz. at 115, 907 P.2d at 501; cf.
State v. Carter,151 Ariz. 532, 534, 729 P.2d 336, 338
(App. 1986) (speedy trial limitations "not
jurisdictional in the sense that their violation deprives a
court of the power to ...