for Review from the Superior Court in Pima County No.
CR20122348001 The Honorable Javier Chon-Lopez, Judge
Barbara LaWall, Pima County Attorney By Jacob R. Lines,
Deputy County Attorney, Tucson Counsel for Respondent
R. Sonenberg, Pima County Public Defender By Abigail Jensen,
Assistant Public Defender, Tucson Counsel for Petitioner
Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Eckerstrom concurred.
Petitioner Juan Grijalva seeks review of the trial
court's order denying his petition for post-conviction
relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We
will not disturb a trial court's ruling on a petition for
post-conviction relief absent a clear abuse of
discretion." State v. Swoopes, 216 Ariz. 390,
¶ 4, 166 P.3d 945, 948 (App. 2007). Grijalva has not
sustained his burden of establishing such abuse here.
Pursuant to a plea agreement, Grijalva was convicted of theft
of a means of transportation. The trial court imposed a
minimum, 2.5-year term of imprisonment in October 2012. The
state requested restitution for the victim's insurance
company in the amount of $3, 045.58. Defense counsel
indicated she had not seen supporting documentation of the
claim. The court suggested that she contact the prosecutor to
work out a stipulation and gave the parties thirty days to
file it. The court further ordered that it "retain[ed]
jurisdiction over the issue of restitution" and that
counsel should "submit a stipulation regarding the
amount of restitution owed."
In March 2014, the state filed a motion for restitution, and
the court ordered Grijalva to pay $3, 045.58 to the insurance
company. Grijalva filed an opposition to the
motion, and the court held a hearing at which it vacated its
restitution order and gave the parties two weeks "to
request a hearing or to submit a stipulation as to the amount
of restitution." The court filed an under-advisement
ruling in May affirming its earlier grant and ordering the
same amount of restitution to the insurance company.
Later in May, Grijalva filed a notice of post-conviction
relief, arguing in his petition that the trial court had
lacked jurisdiction to enter the restitution order and, in
any event, the amount of restitution was too high. He also
argued the court had erred in entering a criminal restitution
order (CRO). The trial court granted relief insofar as it
vacated the CRO for "fines, fees, and assessments,
" but otherwise summarily denied relief, and denied
Grijalva's subsequent motion for reconsideration as well.
On review, Grijalva again contends the trial court lacked
jurisdiction "to modify" his sentence by adding
restitution. He argues the court could only add restitution
by means of Rule 24.3, Ariz. R. Crim. P., additionally
contending a sentence may only be changed if it is illegal
and the correction is made within sixty days.
In arguing the trial court lacked jurisdiction to award
restitution more than sixty days after the oral pronouncement
of judgment, Grijalva relies on this court's statement in
State v. Serrano, that a "judgment and sentence
are 'complete and valid' upon oral pronouncement, and
cannot be modified thereafter except as provided by Rule
24.3, Ariz. R. Crim. P." 234 Ariz. 491, ¶ 9, 323
P.3d 774, 777 (App. 2014) (citation omitted),
quoting Ariz. R. Crim. P. 26.16(a). Rule 24.3
provides, in relevant part, that a "court may correct
any unlawful sentence or one imposed in an unlawful manner
within 60 days of the entry of judgment and sentence but
before the defendant's appeal, if any, is
Serrano holds that a court lacks authority to later
modify a defendant's sentence to require him to register
as a sex offender. 234 Ariz. 491, ¶ 9, 323 P.3d at
777. We explained that a registration requirement
was not mandatory for Serrano's offense, but could have
been imposed, in the court's discretion, had the state
raised the issue at sentencing. Id. ¶ 7.
Therefore, because the sentences originally imposed by the
court "were not unlawful, . . . [n]or . . . imposed
without regard for statutory and procedural rules, " we
concluded "[t]he absence of a registration order . . .
did not allow the court to modify the judgment or sentences
under Rule 24.3." Id. ¶ 11.
The discretionary registration order in Serrano, as
well as the order expunging a DNA profile in State v.
Bryant, 219 Ariz. 514, 200 P.3d 1011 (App. 2008), on
which Grijalva also relies, were modifications of the
"complete and valid" sentences imposed earlier.
Id., quoting Ariz. R. Crim. P. 26.16(a). In
contrast, the restitution order here did not constitute a
modification or correction of a sentence and judgment;
rather, the trial court expressly reserved jurisdiction to
later order restitution, which it was required to impose upon
the presentation of sufficient evidence. See State v.
Holguin, 177 Ariz. 589, 591, 870 P.2d 407, 409 (App.
We also find Serrano inapposite because we relied on
the legislature's "clear intent that any
discretionary order that a person register as a sex offender
must occur at the time of sentencing." 234 Ariz. 491,
¶ 13, 323 P.3d at 778. In contrast, A.R.S. §
13-603(C), which requires the trial court to impose
restitution, "is silent as to when restitution must be
assessed, " notwithstanding that restitution generally
"is ordered at the time of sentencing" - if the
court has ...