Opinion
1 CA-CR 10-0663
12-01-2011
STATE OF ARIZONA, Appellee, v. SHAWN MICHAEL PETRIE, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee Phoenix Abigail Jensen, P.C. By Abigail Jensen Attorney for Appellant Prescott
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Yavapai County
Cause No. P1300CR200901250
The Honorable Ralph Matthew Hess, Judge Pro Tempore
APPEAL DISMISSED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
And Melissa M. Swearingen, Assistant Attorney General
Attorneys for Appellee
Phoenix
Abigail Jensen, P.C.
By Abigail Jensen
Attorney for Appellant
Prescott WINTHROP , Chief Judge
¶1 Appellant, Shawn Michael Petrie, raises only one issue on appeal, which is whether the trial court erred "in attempting to retain jurisdiction over the award of restitution after sentencing appellant to prison." For the reasons that follow, we conclude this issue is not ripe for consideration; accordingly, we dismiss this appeal.
¶2 A jury convicted Petrie of theft of property with a value of $1,000 or more, but less than $2,000, a class six felony. The trial court found that Petrie had two historical prior felony convictions and sentenced him to a mitigated term of three years in prison. Because of imprecise information about the amount owed in restitution, the court retained jurisdiction over restitution. Insofar as the record on appeal reflects, the court has neither conducted a hearing to determine the amount of restitution owed nor ordered Petrie to pay any amount of restitution. Petrie filed a timely notice of appeal.
The trial court relied on Arizona Revised Statutes ("A.R.S.") section 13-4436(B) (2010) to support the existence of continuing jurisdiction. We also note that A.R.S. § 12-123(B) (2003) provides the superior court and its judges "shall have all powers and may issue all writs necessary to the complete exercise of its jurisdiction."
¶3 We would usually have jurisdiction to hear this appeal under A.R.S. §§ 12-120.21(A)(1) (2003) and 13-4033(A)(1) (2010). In the absence of any restitution order, however, Petrie's claim that the court erred in retaining jurisdiction over restitution is not ripe for our consideration; any opinion we might render would be premature and wholly advisory. Because Petrie has not yet suffered any actual injury from the court's retention of jurisdiction over restitution, the issue he raises in this appeal remains theoretical, abstract, and hypothetical. "We will not render advisory opinions anticipative of troubles which do not exist; may never exist; and the precise form of which, should they ever arise, we cannot predict." Velasco v. Mallory, 5 Ariz. App. 406, 410-11, 427 P.2d 540, 544-45 (1967) (citations omitted). If the court later orders restitution, Petrie can appeal the restitution order as appropriate. See A.R.S. § 13-4033(A) (3) (providing that a defendant may appeal from "[a]n order made after judgment affecting the substantial rights of the party"); State v. Vargas-Burgos, 162 Ariz. 325, 327, 783 P.2d 264, 266 (App. 1989) ("A question regarding the court's lack of jurisdiction over the subject matter [] may be raised at any time, including on appeal." (citations omitted)). At this time, however, the issue is not ripe for consideration; accordingly, we decline to address it and dismiss this appeal.
LAWRENCE F. WINTHROP, Chief Judge CONCURRING: DIANE M. JOHNSEN, Presiding Judge PATRICIA A. OROZCO, Judge