Opinion
No. 2 CA-CV 2014-0038
09-16-2014
THE STATE OF ARIZONA, Plaintiff/Appellee, v. BRADLEY ALAN SCHWARTZ, Defendant/Appellant, PIMA COUNTY AND THE PIMA COUNTY OFFICE OF COURT APPOINTED COUNSEL, Intervenors.
COUNSEL Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Defendant/Appellant Mesch, Clark & Rothschild, P.C., Tucson By Gary J. Cohen Counsel for Intervenors
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20043995
The Honorable Brenden J. Griffin, Judge
APPEAL DISMISSED
COUNSEL Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Defendant/Appellant
Mesch, Clark & Rothschild, P.C., Tucson
By Gary J. Cohen
Counsel for Intervenors
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Judge Vásquez and Judge Brammer concurred. HOWARD, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 Appellant Bradley Schwartz appeals from the trial court's denial without prejudice of his Motion for Release of Any and All Claims by Pima County. He argues the trial court abused its discretion by denying his motion and allowing it to be re-filed in another division. Because we lack jurisdiction, we dismiss this appeal.
Factual and Procedural Background
¶2 During Schwartz's criminal trial, the trial court provided him court-appointed counsel on the condition that he assign the income he received pursuant to several disability insurance policies to the Pima County Office of Court-Appointed Counsel to reimburse the agency for the cost of his defense. At sentencing following Schwartz's conviction for conspiracy to commit first-degree murder, the court ordered that he repay the cost of his defense, less the amount already paid. The court also ordered that his disability checks would continue to be assigned to the County to pay those costs.
¶3 Around that same time, Schwartz's former wife attempted to garnish the disability income to satisfy a spousal maintenance judgment she had obtained during dissolution proceedings. Shortly thereafter, all three parties entered into a settlement agreement which provided that half of Schwartz's disability income would be paid to the County and the other half would be paid to his former wife. That agreement was incorporated into an order in the criminal case.
The agreement was modified later so the income paid to Schwartz's former wife satisfied his child support obligations, rather than the spousal maintenance award.
¶4 In January 2014, Schwartz filed a Motion for Release of Any and All Claims by Pima County, claiming the County had been reimbursed fully for the costs of his defense and requesting that his disability income be released to him or his representative. Schwartz's former wife asked the trial court to delay ruling on the matter until another division of the court ruled on a pending motion to modify child support in the dissolution proceedings. The court determined that the division overseeing the child support modification was best suited to determine whether and how to modify the arrangement due to Schwartz's ongoing financial obligation to his former wife. It therefore denied Schwartz's motion without prejudice to his bringing it again in the dissolution proceeding. Schwartz appealed.
Discussion
¶5 Schwartz argues the trial court abused its discretion by denying his motion and abdicating its responsibility to another division. In its answering brief, the County argues that this court lacks jurisdiction to hear Schwartz's appeal based on the civil appellate rules and relevant case law. But the court imposed the original condition that Schwartz's disability payments be used to reimburse the County as a part of Schwartz's original judgment and sentence in his criminal case. The later settlement agreement modifying that condition was incorporated pursuant to his criminal case. Schwartz filed his motion to release in his criminal case, and the court handling his criminal case denied the motion. Although the challenged order includes the domestic relations case number, no order was entered in that case. Consequently, this appeal is governed by A.R.S. § 13-4033(A), which addresses a defendant's right to appeal in a criminal case.
¶6 Pursuant to § 13-4033(A)(3), a defendant may only appeal "[a]n order made after judgment affecting the substantial rights of the party." In order to fall under § 13-4033(A)(3), the order must "actually change[] or modif[y] the judgment or sentence originally imposed." See State v. Jimenez, 188 Ariz. 342, 345, 935 P.2d 920, 923 (App. 1996). An interlocutory order which leaves the defendant further avenues for review in the trial court does not affect the substantial rights of the defendant and is inappropriate for appellate review. State v. Hovey, 175 Ariz. 219, 220, 854 P.2d 1205, 1206 (App. 1993).
Jimenez relied on § 13-4033(A)(2) and Hovey on § 13-4033(2). Jimenez, 188 Ariz. at 344, 935 P.2d at 922; Hovey, 175 Ariz. at 220, 854 P.2d at 1206. Both subsections have since been renumbered to § 13-4033(A)(3). 1992 Ariz. Sess. Laws, ch. 184, § 1; 1993 Ariz. Sess. Laws, ch. 256, § 6; 2008 Ariz. Sess. Laws, ch. 25, § 1.
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¶7 The trial court's denial of Schwartz's motion "without prejudice to file the motion in the Division handling the family-law matter" did not change or modify Schwartz's original judgment and sentence in any way. Rather, it only allowed him to re-file his motion with what the court deemed a more appropriate division of superior court so that he could seek relief. Schwartz therefore had further avenues for review of his motion below. See Hovey, 175 Ariz. at 220, 854 P.2d at 1206. Consequently, this court has no jurisdiction to hear Schwartz's appeal because the court did not enter an "order made after judgment affecting [Schwartz's] substantial rights." See § 13-4033(A)(3); see also Jimenez, 188 Ariz. at 345, 935 P.2d at 923; Hovey, 175 Ariz. at 220, 854 P.2d at 1206.
¶8 Moreover, we would lack jurisdiction even if we were to consider this a civil appeal. See State v. Salerno, 216 Ariz. 22, ¶¶ 8-14, 162 P.3d 661, 663-64 (App. 2007) (treating appeal from denial of motion to release property seized in connection with criminal case as civil appeal). This court generally has jurisdiction only over appeals from final civil judgments. A.R.S. § 12-2101(A). A dismissal without prejudice is not a final judgment and is not appealable. McMurray v. Dream Catcher USA, Inc., 220 Ariz. 71, ¶ 4, 202 P.3d 536, 539 (App. 2009); see also § 12-2101(A). Thus, because Schwartz is not appealing from a final judgment, we lack jurisdiction over his appeal. See McMurray, 220 Ariz. 71, ¶ 4, 202 P.2d at 539.
¶9 In his reply brief, Schwartz requests that, if this court finds it lacks jurisdiction, we treat his appeal as a petition for special action. But review of the trial court's ruling "will be available, and we believe more appropriately conducted, on appeal from an eventual final judgment." See Catalina Foothills Unified Sch. Dist. No. 16 v. La Paloma Prop. Owners Ass'n, 229 Ariz. 525, ¶ 22, 278 P.3d 303, 310 (App. 2012); see also § 12-2101(A)(1). And Schwartz has not explained how this matter "presents a purely legal question on an issue of statewide importance." See Ariz. Dep't of Econ. Sec. v. Superior Court, 186 Ariz. 405, 407, 923 P.2d 871, 873 (App. 1996). Moreover, "[s]pecial actions may not be used as a substitute for an appeal." Jordan v. Rea, 221 Ariz. 581, ¶ 8, 212 P.3d 919, 924 (App. 2009), citing Neely v. Rodriguez, 165 Ariz. 74, 76, 796 P.2d 876, 878 (1990) (recognizing "strong Arizona policy against using extraordinary writs as substitutes for appeals"). We therefore decline to accept special action jurisdiction in this matter. See Robinson v. Kay, 225 Ariz. 191, ¶ 7, 236 P.3d 418, 420 (App. 2010).
Disposition
¶10 For the foregoing reasons, we dismiss this appeal.