Opinion
No. 2 CA-CR 2014-0002
11-20-2014
THE STATE OF ARIZONA, Appellee, v. JASON LEVI BURKE, Appellant.
COUNSEL Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, Tucson Counsel for Appellant
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NOT FOR PUBLICATION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 Gila County
No. S0400CR201100662
The Honorable Robert Duber II, Judge
AFFIRMED
COUNSEL Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee
Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge: ¶1 After a jury trial, appellant Jason Burke was convicted of aggravated assault and disorderly conduct and sentenced to a prison term of 6.5 years. On appeal, he argues the trial court erred by denying his motion to dismiss the prosecution in violation of his speedy trial rights under Rule 8.3, Ariz. R. Crim. P. Because Burke has not argued or shown he was prejudiced by the purported violation, we affirm.
Factual and Procedural Background
¶2 The procedural facts necessary for our decision are undisputed. Burke was in the custody of the Arizona Department of Corrections ("ADOC") on an unrelated charge, when he filed a request for final disposition in this case pursuant to Rule 8.3(b). He dated the request May 21, 2013, and the trial court received the request on May 28, 2013. He filed a second request approximately one week later. ¶3 Burke was released from ADOC custody on August 21, 2013. The trial court then set trial for November 20, 2013. Before trial, Burke filed a motion to dismiss his indictment, arguing that the court violated his speedy trial rights when trial did not begin within ninety days after the date he sent his first Rule 8.3(b) request.
Although Burke included a certificate of service with his Rule 8.3(b) request, his certificate does not specify the date on which he mailed the request to the trial court.
¶4 The trial court denied the motion on the ground that, even if Rule 8.3(b) required a trial within ninety days after the date Burke sent his first request, Rule 1.3, Ariz. R. Crim. P., added five days to the ninety-day period because he had sent the request by mail. By this reasoning, the court determined that Rule 8.3(b) and Rule 1.3(a) required a trial by August 24, 2013, but by that time, Burke was no longer in ADOC custody and Rule 8.3(b) was inapplicable.
August 24, 2013, was a Saturday, and the last day to begin trial with the additional five days for mailing in Rule 1.3(a) would have been Monday, August 26, 2013. See Ariz. R. Crim. P. 1.3(a).
--------
¶5 We have jurisdiction over Burke's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).
Discussion
¶6 Burke argues the trial court erred in denying his motion to dismiss because Rule 8.3(b) entitled him to trial by August 19, 2013, ninety days after he mailed his first request for final disposition. We review claims of speedy trial violations for an abuse of discretion, State v. Spreitz, 190 Ariz. 129, 136, 945 P.2d 1260, 1267 (1997), but the application of Rule 8 is an issue of law we review de novo, State v. Burkett, 179 Ariz. 109, 111, 876 P.2d 1144, 1146 (App. 1993).
¶7 We will not reverse a conviction for a technical violation of Rule 8 where the "defendant has not established that the . . . error . . . prejudiced his defense in any way or deprived him of a fair trial." State v. Vasko, 193 Ariz. 142, ¶ 31, 971 P.2d 189, 196 (App. 1998); see also State v. Hunter, 227 Ariz. 542, ¶ 10, 260 P.3d 1107, 1109 (App. 2011). To show prejudice, a defendant must establish that "his defense has been harmed by the delay," the delay caused prolonged confinement, the delay's length was unreasonable, Vasko, 193 Ariz. 142, ¶ 22, 971 P.2d at 194, or that the delay had some "impact . . . on his prospects for parole and meaningful rehabilitation." Moore v. Arizona, 414 U.S. 25, 27 (1973).
¶8 Here, Burke does not argue, and thus fails to demonstrate, he was prejudiced by any delay caused by the alleged Rule 8.3(b) violation. He does not argue that the alleged failure to meet the rule's time limits harmed his defense, caused him prolonged confinement, or impacted parole and rehabilitation; nor does he argue that the length of the alleged delay was unreasonable. See Moore, 414 U.S. at 27; Vasko, 193 Ariz. 142, ¶ 22, 971 P.2d at 194. Thus, even if we were to accept his argument that Rule 8.3(b) entitled him to a trial by August 19, 2013, we will not reverse his conviction. See Vasko, 193 Ariz. 142, ¶ 31, 971 P.2d at 196.
Disposition
¶9 For the foregoing reasons, we affirm Burke's convictions and sentences.