Opinion
No. 2 CA-CV 2018-0042
08-21-2018
THE STATE OF ARIZONA, Appellee, v. GARY PATRICK CALLAHAN, Appellant.
COUNSEL Brian M. Mclntyre, Cochise County Attorney By Sara V. Ransom, Civil Deputy County Attorney, Bisbee Counsel for Appellee Gary Patrick Callahan, Kettle Falls, Washington In Propria Persona
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NOT FOR PUBLICATION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)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Cochise County
No. CV201700605
The Honorable James L. Conlogue, Judge
APPEAL DISMISSED
COUNSEL Brian M. Mclntyre, Cochise County Attorney
By Sara V. Ransom, Civil Deputy County Attorney, Bisbee
Counsel for Appellee Gary Patrick Callahan, Kettle Falls, Washington
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Gary Callahan appeals the trial court's ruling denying his petition to restore his right to possess or own firearms. Because Callahan's notice of appeal was untimely, we dismiss his appeal for lack of jurisdiction.
Factual and Procedural Background
¶2 In 1993, Callahan was convicted in federal court of offenses related to cocaine trafficking and sentenced to 330 months of imprisonment followed by five years of supervised release, thus becoming a prohibited possessor under federal law. See 18 U.S.C. § 922(g)(1). In 2014, he completed his term of federal imprisonment and was placed on supervised release. In 2016, a federal district court granted Callahan's motion for early termination of supervised release.
¶3 On October 25, 2017, Callahan filed a petition in Cochise County Superior Court, seeking the restoration of his right to possess or own firearms. He asserted he was "not interested in toting a weapon," but wanted to "'immunize' [him] self from any conceivable federal 'constructive possession' charges" that might result from him being "near a person with a weapon." The trial court denied his petition and entered judgment on December 8, 2017. Callahan filed a motion for reconsideration on December 20. The following day, the court denied reconsideration, explaining the "current law is clear that this Court has no power to restore [Callahan's] right to possess a firearm under federal law." This appeal followed.
Appellate Jurisdiction
¶4 We "have an independent duty to confirm our jurisdiction over the appeal before us." Anderson v. Valley Union High Sch., Dist. No. 22, 229 Ariz. 52, ¶ 2 (App. 2012). A timely notice of appeal is essential to the exercise of jurisdiction by this court. State v. Berry, 133 Ariz. 264, 266 (App. 1982); see also Ariz. R. Crim. P. 31.2(a). We lack jurisdiction to consider an untimely appeal. See Berry, 133 Ariz. at 267.
Although the trial court denominated Callahan's petition as a civil matter and we have assigned it a civil case number, the statutes enabling a person convicted of a crime to seek restoration of his firearm rights, A.R.S. §§ 13-905, 13-906, and 13-907, are contained in the criminal code. And, in contrast to Pinal County Board of Supervisors v. Georgini, 235 Ariz. 578, ¶¶ 2, 35 (App. 2014) (proceeding under A.R.S. § 13-925(A) to restore firearm rights restricted due to mental health civil in nature), Callahan lost his firearm rights as a direct consequence of criminal convictions. Thus, in determining whether we have jurisdiction here, we apply criminal law principles and procedures. See State v. Perry, No. 2 CA-CR 2017-0396, ¶¶ 3, 7, 2018 WL 3950716 (Ariz. Ct. App. Aug. 17, 2018) (treating petition for restoration of firearms rights lost due to conviction as criminal matter).
¶5 Callahan's notice of appeal identifies the December 8, 2017 ruling denying his petition as the judgment subject to his appeal. We assume, without deciding, that it was appealable as an "order made after judgment affecting the substantial rights of the party" pursuant to A.R.S. § 13-4033(A)(3). However, Callahan's deadline to file a notice of appeal from the December 8 ruling was December 28, 2017. See Ariz. R. Crim. P. 31.2(a). Because Callahan did not file his notice of appeal until January 22, 2018, his appeal was untimely.
Even were we to consider this a civil matter, applying Georgini, 235 Ariz. 578, ¶ 35, Callahan's notice of appeal would still be untimely under Rule 9(a), Ariz. R. Civ. App. P. (notice of appeal must be filed no later than thirty days after entry of appealable order). Further, the denial of Callahan's motion for reconsideration was not separately appealable. See A.R.S. § 13-4033; State v. Limon, 229 Ariz. 22, ¶ 5 (App. 2011) (order denying motion to reconsider not appealable). And, the filing of a motion for reconsideration does not extend the time for filing a notice of appeal. See Berry, 133 Ariz. at 267.
Disposition
¶6 For the foregoing reasons, we dismiss Callahan's appeal for lack of jurisdiction.