Opinion
2 CA-CR 2023-0040
09-18-2023
The State of Arizona, Appellee, v. Mario Guadalupe Montijo, Appellant.
Kristin K. Mayes, Arizona Attorney General By Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals, Phoenix Counsel for Appellee James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20213298002 The Honorable Javier Chon-Lopez, Judge
Kristin K. Mayes, Arizona Attorney General By Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals, Phoenix Counsel for Appellee
James Fullin, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge Eckerstrom and Judge O'Neil concurred.
MEMORANDUM DECISION
BREARCLIFFE, PRESIDING JUDGE
¶1 Mario Guadalupe Montijo appeals from the trial court's January 20, 2023, restitution order following his felony plea. We dismiss the appeal for lack of jurisdiction.
Factual and Procedural Background
¶2 In August 2022, Montijo pleaded guilty to two counts of conspiracy to commit unlawful use of means of transportation. Montijo acknowledged that the trial court could order restitution, "agree[d] pursuant to A.R.S. § 13-4033" that he may not appeal from the judgment and sentence imposed under the plea agreement, and waived "any right to raise and/or to appeal any and all . . . restitution orders."
¶3 The state moved for restitution and Montijo requested a hearing. Following the hearing, the trial court ordered Montijo to pay $590 in restitution. This appeal followed. Montijo argues that the victim's loss bears no "causal link" to Montijo's participation in the conspiracy. The state disputes Montijo's causation claim but principally asserts that we lack jurisdiction over a direct appeal from the post-plea agreement restitution order.
Jurisdiction
¶4 Our jurisdiction is limited to that conferred to us by statute, and we must independently determine our jurisdiction over an appeal. See State v. Eby, 226 Ariz. 179, ¶ 3 (App. 2011). Generally, we have "[a]ppellate jurisdiction in all actions and proceedings originating in or permitted by law to be appealed from the superior court." A.R.S. § 12-120.21(A)(1). A defendant may appeal "[a]n order made after judgment affecting the substantial rights of the party," § 13-4033(A)(3), such as restitution, Hoffman v. Chandler, 231 Ariz. 362, ¶ 7 (2013). Montijo is challenging the restitution order entered following his conviction resulting from his guilty plea pursuant to a plea agreement. Even so, a defendant in a noncapital case is not permitted to "appeal from a judgment or sentence that is entered pursuant to a plea agreement." § 13-4033(B). Instead, such a defendant must file a Rule 33, Ariz. R. Crim. P., petition for post-conviction relief. Ariz. R. Crim. P. 17.1(e); Hoffman, 231 Ariz. 362, ¶ 1.
¶5 Montijo argues nonetheless that Hoffman is inapplicable because its holding was narrowly applied to capped restitution, whereas Montijo's plea agreement allowed for an uncapped restitution amount. 231 Ariz. 362, ¶ 1. But, as our supreme court explained, a pleading defendant must seek relief under Rule 33 even when challenging a restitution order not capped by the plea agreement. E.H. v. Slayton, 249 Ariz. 248, ¶ 12 (2020).
Disposition
¶6 For the foregoing reasons, we dismiss the appeal for lack of jurisdiction.