Arizona Appellate Court Allows Illegal Sentence Due to Timing of Court’s Decision

In a recent case, an Arizona court of appeals held that an Arizona DUI sentence should stand because the court’s correction of the unlawful sentence was made too late. According to the court’s opinion, in 2016, the defendant was convicted of aggravated driving under the influence and aggravated driving with a Blood Alcohol Content (BAC) of .08 or higher. The case was reset for sentencing, but before the defendant was sentenced, he moved to designate a prior conviction as a misdemeanor, which the state granted. The state then moved for reconsideration, and the court denied reconsideration. On September 15, 2017, the court sentenced the defendant. It imposed a sentence of one year in prison.

The state then moved to correct the defendant’s sentence under Rule 24.3 of the Arizona Rules of Criminal Procedure (“Rule 24.3). It argued that the defendant’s prior conviction was a felony at the time he committed the DUI, and therefore, the court should have sentenced him more harshly. In On December 1, 2017, the court granted the state’s motion, finding that the original sentence was inappropriate under an applicable statute, and re-sentenced the defendant to a presumptive term of imprisonment of 2.5 years. On appeal, the defendant argued that the trial court could not re-sentence him under Rule 24.3.

Under the current version of Arizona Rules of Criminal Procedure 24.3, a court can correct an unlawful sentence or a sentence imposed in an unlawful manner within 60 days of the entry of judgment of the sentence, or within 15 days of the appellate clerk distributing a notice under Rule 31.9(e) that a record on appeal has been filed. At the time of the defendant’s sentence, the rule stated simply that a court could “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 perfected.”

In this case, the defendant argued that the trial court should not have resentenced him more than 60 days after his sentencing, because this was a violation of Rule 24.3. The court agreed with the defendant. It explained that the version of the statute in effect at the time clearly stated that the sentence could only be corrected within 60 days of the original sentence. The court explained that the rule requires not only that the state notify the court of its error, but that it also act to correct the unlawful sentence within the 60 days provided under the statute.

Contact a Phoenix DUI Attorney

Driving under the influence convictions can carry harsh punishments in Arizona, even for a first offense. An experienced Arizona DUI attorney may be able to help people accused of drunk driving to avoid or mitigate these harsh punishments. The Law Office of James E. Novak is committed to defending the rights of people accused of Arizona drunk driving crimes. James E. Novak is a former prosecutor who knows how the other side thinks and uses that knowledge to help his clients. If you want to speak with a dedicated Phoenix DUI attorney about your case, contact James Novak at 480-413-1499 or fill out our online contact form to schedule your free consultation.

Additional Resources:

• A.R.S. 28-1381
• A.R.S. 28-1321