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State v. Burbey

Supreme Court of Arizona

October 13, 2017

State of Arizona, Appellee,
v.
Lynn Lavern Burbey, Appellant.

         Appeal from the Superior Court in Pima County The Honorable Scott Rash, Judge No. CR20144529-001 REVERSED

         Opinion of the Court of Appeals, Division Two 240 Ariz. 496 (App. 2016) VACATED

          Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor General, Joseph T. Maziarz, Chief Counsel, Eric Knobloch (argued), Assistant Attorney General Criminal Appeals Section, Phoenix, Attorneys for State of Arizona.

          Pima County Legal Defender's Office, Dean Brault, Robb P. Holmes (argued), Assistant Legal Defender, Tucson, Attorneys for Lynn Lavern Burbey.

          Sarah L. May hew (argued), Pima County Public Defender's Office, Tucson, Attorney for Amicus Curiae Pima County Public Defender's Office.

          JUSTICE BOLICK authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL, TIMMER, and GOULD, and JUDGE McMURDIE joined. [*]

          OPINION

          BOLICK, JUSTICE.

         ¶1 Registered sex offenders must notify law enforcement officials of their new "residence" or address within seventy-two hours after they move and must "register as a transient not less than every ninety days" if the person "does not have an address or a permanent place of residence." A.R.S. § 13-3822(A). Lynn Lavern Burbey was convicted of a felony for failing to satisfy the first requirement after leaving a halfway house and becoming homeless. We overturn the conviction, holding that only the second requirement applies to transient individuals.

         I. BACKGROUND

         ¶2 In April 2014, Burbey registered as a sex offender when he was released from prison to a halfway house. A.R.S. § 13-3821(I). In his registration, Burbey listed the address of the halfway house as his residence. That September, he left the halfway house and became homeless, living outdoors near the Speedway/Alvernon intersection in Tucson. He did not notify the Pima County Sheriff's Department that he left the halfway house, nor did he register as a transient. Within the month thereafter, Burbey was arrested for failing to notify authorities within seventy-two hours that he had moved from the halfway house, in violation of § 13-3822(A), a class four felony. At trial, the court rejected Burbey's proposed instruction regarding the meaning of "registration" under § 13-3822(A) and instructed the jury that the statute required notice within seventy-two hours of moving. Burbey was convicted and sentenced to seven years in prison.

         ¶3 The court of appeals affirmed. State v. Burbey, 240 Ariz. 496, 498 ¶ 1 (App. 2016). After considering the statute's language, purpose, and history, the court concluded that "§ 13-3822(A), while imposing on homeless registrants a reporting obligation not less than every ninety days so long as the person remains homeless, also plainly requires that all registrants, including those who become homeless, notify the sheriff, in person and in writing, within seventy-two hours of moving from a previously registered address." Id. at 501 ¶ 14 (emphasis in original).

         ¶4 We granted review to determine whether a person must register a new residence or address within seventy-two hours of becoming homeless, a recurring issue of statewide concern. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

         II. DISCUSSION

         ¶5 We review trial court rulings regarding jury instructions for abuse of discretion. State v. Garza,216 Ariz. 56, 66 ΒΆ 42 (2007). We review issues of "whether jury instructions properly state the law" and statutory interpretation ...


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