Opinion
No. 1 CA-CR 13-0053
11-26-2013
STATE OF ARIZONA, Appellee, v. JULIAN ROSENDO NORIEGA, Appellant.
Arizona Attorney General's Office, Phoenix By Michael T. O'Toole Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Thomas K. Baird Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2009-179524-001
The Honorable Janet E. Barton, Judge
CONVICTIONS AFFIRMED; JUDGMENT AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Michael T. O'Toole
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Kenton D. Jones and Judge Kent E. Cattani joined. JOHNSEN, Judge:
¶1 Julian Rosendo Noriega was convicted of first-degree murder and kidnapping, Class 1 and Class 2 dangerous felonies, respectively. The superior court sentenced Noriega to natural life incarceration for the murder and 15 years' incarceration for the kidnapping, the sentences to be served concurrently. The court also ordered him to "submit to DNA testing for law enforcement identification purposes and pay the applicable fee for the cost of that testing in accordance with [Arizona Revised Statutes ("A.R.S.")] § 13-610."
¶2 On appeal, Noriega does not dispute his convictions nor the terms of incarceration the superior court imposed. He argues only that the court erred by ordering him to pay for DNA testing pursuant to A.R.S. § 13-610 (2013). The State confesses error, acknowledging that in State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013), this court held that A.R.S. § 13-610 does not authorize the court to impose a DNA collection fee on a convicted defendant. We agree that pursuant to Reyes, which was issued after Noriega was sentenced, the court erred by imposing the collection fee. We therefore modify the judgment of conviction to omit the requirement that Noriega pay the cost of DNA testing.
Absent material revision after the alleged offense, we cite a statute's current version.