from the Superior Court in Graham County No. CR201300049 The
Honorable Gary V. Scales, Judge Pro Tempore
Perry, Alpine In Propria Persona
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Staring and Judge Brearcliffe concurred.
ECKERSTROM, CHIEF JUDGE
Ronald Perry attempts to appeal from the trial court's
order denying his application to restore his right to possess
firearms. Because we lack jurisdiction, we dismiss the
and Procedural Background
In February 2016, Perry filed an application to restore his
civil rights and set aside his convictions for aggravated
driving under the influence and disorderly conduct. Perry
also requested that the court restore his right to possess
firearms. In April 2016, the court granted Perry's
application as to his civil rights and set aside the
judgment, but declined to restore his gun rights. In July
2017, Perry filed a new application to restore his gun
rights. On August 15, after a hearing, the trial court denied
that application. On November 17, Perry filed a notice of
Although the state has not contested the issue of
jurisdiction,  we have an independent duty to determine
our jurisdiction over the appeal. See State v.
Serrano, 234 Ariz. 491, ¶ 4 (App. 2014) (appellate
jurisdiction "provided and limited by law."). To
address whether we have jurisdiction over Perry's claim,
we must first determine whether the action to restore gun
rights after a criminal conviction is civil or criminal in
nature. For the reasons that follow, we conclude Perry's
action is properly characterized as criminal. Perry's
application for restoration of his right to possess firearms
seeks relief from a sanction imposed in a criminal case. And,
he seeks restoration under statutes and rules addressing
applications arising from criminal cases. See A.R.S.
§ 13-907; Ariz. R. Crim. P. 29. Furthermore, our courts
have largely treated an action for a restoration of rights
after a criminal conviction as a criminal proceeding,
implicitly treating them as orders appealable under A.R.S.
§ 13-4033(A)(3). See, e.g., State v. Nixon, 242
Ariz. 242 (App. 2017); State v. Hall, 234 Ariz. 374,
¶ 2 (App. 2014); State v. Key, 128 Ariz. 419
(App. 1981); State v. Grant, 24 Ariz.App. 201
(1975); cf. State v. Buonafede, 168 Ariz. 444, 448
(1991) (trial court had no authority, in rights restoration
proceeding, to issue "certificate of
rehabilitation"), but see State v. Rehm, No. 1
CA-CV 15-0417 (Ariz. App. Mar. 22, 2016) (mem. decision),
as amended (Mar. 24, 2016) (treating restoration of
gun rights as civil matter).
When the right to possess firearms has been suspended as a
consequence of a criminal conviction, the information
relevant to the restoration of the right will be present in
the criminal case file. As a practical matter then,
practitioners and courts, for administrative convenience,
will more likely file such applications and resulting orders
under the pertinent criminal cause number.
We acknowledge that this court has previously concluded that
"a proceeding to restore firearm rights pursuant to
[A.R.S.] § 13-925 is civil in nature, notwithstanding
the statute's placement in title 13." Pinal Cty.
Bd. of Supervisors v. Georgini, 235 Ariz. 578, ¶ 35
(App. 2014). But there, the applicant's loss of the right
to possess a firearm occurred as part of a mental health
proceeding and he sought relief under a section of title 13
authorizing restoration of rights in that context.
Id. ¶¶ 2-5; see A.R.S. §
13-925(A), (C)(4) (providing avenue to apply for restoration
for person whose right to possess firearms has been
restricted based upon a finding that he is "a danger to
self or others" pursuant to A.R.S §
13-3101(A)(7)(a) or similar federal statute). Mental health
proceedings are civil in nature. See In re
MH-2008-000867, 225 Ariz. 178, ¶ 5 (2010).
Moreover, Georgini relied, in part, on the fact that
A.R.S. § 12-2101, the statute that identifies appealable
judgments and orders in civil proceedings, provides the
statutory basis for appealing an order "[g]ranting or
denying a petition to restore a person's right to possess
a firearm pursuant to § 13-925." (Emphasis
added.) 235 Ariz. 578, ¶ 35.
Georgini additionally relied on Greehling v.
State, 135 Ariz. 498 (1982), to support its conclusion
that the action was civil, notwithstanding its placement in
the criminal code. Greehling concerned an action to
restore property seized pursuant to a search warrant on the
ground that the warrant was not properly issued. 135 Ariz. at
498-99. The court characterized the action as civil, noting
that such a characterization was "consistent with the
rights of those neither charged nor chargeable with a
criminal offense to recover property that is seized under an
invalid search warrant or improperly seized beyond the scope
of a valid search warrant." Id. at 500. The
court also noted that the person seeking relief in that
action would not necessarily be a criminal defendant, and
thus classified the action as fundamentally civil in nature.
Id. Such is not the case here.
Because we conclude this action is criminal in nature, we
apply the deadlines for appeal provided by the Arizona Rules
of Criminal Procedure. See Ariz. R. Crim. P.
Under those rules, a notice of appeal from a judgment or
order other than a conviction and sentence "must be
filed no later than 20 days after entry of the judgment or
order." Ariz. R. Crim. P. 31.2(a)(2). The court's
order denying Perry's application to restore his right to
possess firearms was entered on August 15, 2017, and Perry
did not file his notice of appeal until November 17, well
beyond the twenty-day period.