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Hiskett v. Lambert

Court of Appeals of Arizona, First Division

October 1, 2019

ROBERT LOUIS HISKETT, Petitioner,
v.
THE HONORABLE RICK LAMBERT, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MOHAVE, Respondent Judge, STATE OF ARIZONA ex rel. MATTHEW J. SMITH, MOHAVE COUNTY ATTORNEY, Real Party in Interest.

          Petition for Special Action from the Superior Court in Mohave County No. CR-2018-01854 The Honorable Richard D. Lambert, Judge.

          American Civil Liberties Union Foundation of Arizona, Phoenix By Jared G. Keenan, Kathleen E. Brody, Marty Lieberman Co-Counsel for Petitioner

          Aspen, Watkins & Diesel, P.L.L.C., Flagstaff By Michael J. Wozniak Co-Counsel for Petitioner

          Mohave County Attorney’s Office, Kingman By Megan McCoy, Jacob Cote Counsel for Real Party in Interest

          Pima County Public Defender’s Office, Tucson By David J. Euchner Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice

          Coconino County Public Defender’s Office, Flagstaff By Sandra L.J. Diehl Counsel for Amicus Curiae Arizona Public Defender Association

          Arizona Attorney General’s Office, Phoenix By Rusty D. Crandell, Anthony R. Napolitano Counsel for Amicus Curiae Arizona Attorney General

          Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Presiding Judge Paul J. McMurdie and Chief Judge Peter B. Swann joined.

          OPINION

          WINTHROP, Judge.

         ¶1 Arizona Revised Statutes ("A.R.S.") section 13-3967(E)(1) mandates that persons charged with certain bailable sex offenses be subject to electronic monitoring "where available." In this special action, we address a question raised but not directly answered by § 13-3967(E)(1): Must the defendant pay the cost of that pretrial electronic monitoring? We answer that question in the negative, and we also address other issues raised by the parties.

         ¶2 Robert Louis Hiskett ("Petitioner"), whose criminal charges trigger the application of A.R.S. § 13-3967(E)(1), challenges the superior court's pretrial release orders requiring him to pay for electronic location monitoring and later requiring him to post bond in the amount of $100, 000 or be jailed pending trial. Petitioner argues the cost of pretrial electronic location monitoring must not be imposed on pretrial defendants. He also argues the superior court failed to properly determine whether such monitoring was "available" under § 13-3967(E)(1) and failed to conduct the proper inquiry regarding the bond. For the following reasons, we accept special action jurisdiction, grant relief in part, and direct the superior court to conduct further proceedings consistent with this opinion.

         FACTS AND PROCEDURAL HISTORY

         ¶3 Petitioner is facing three counts of sexual conduct with a minor under fifteen years of age, each a class two felony and a dangerous crime against children.

         ¶4 In December 2018, the superior court released Petitioner on his own recognizance pending trial. Given the nature of the charges, A.R.S. § 13-3967(E)(1) required the court to impose "[electronic monitoring where available." The court ordered Petitioner "to wear a GPS monitoring device within 48 hours of [his release] and [be] responsible for all costs associated with it."

         ¶5 Petitioner began wearing an electronic location monitoring device from a monitoring service provider that contracted with the Mohave County probation department. Petitioner was required to make a $150 down payment and pay a charge of more than $10 per day or approximately $400 per month for the monitoring device. Because he was released on his own ...


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