discussing distinction between affirmative defenses, justifications and defenses that deny an element of the charge
How later courts described this case
- discussing distinction between affirmative defenses, justifications and defenses that deny an element of the charge
- appeal treated as a special action when parties appealed from a superior court minute entry
- noting that the right to appeal in Arizona is “purely statutory”
- exercising special action jurisdiction over appeal after finding appellate jurisdiction lacking
Written by the judges who cited it.
The opinion
THOMPSON, Judge,
concurring.
¶ 24 I agree with the majority’s disposition on the merits. I write separately because I conclude that we have jurisdiction over this appeal.
¶ 25 The appeal is from the superior court’s ruling on the State’s special action. In Larkin v. State ex. rel. Rottas, 175 Ariz. 417, 430 , 857 P.2d 1271, 1284 (App.1992) we gave res judicata effect to the denial of fee requests in connection with resolution of two separate special action petitions. Thus, we deemed the ruling on each special action as a final judgment in each action, treating the special action as separate from the tax matter from which it arose. Id. Similarly, here the State’s special action is not part of the criminal prosecution which occasioned the jury instruction issue.
¶ 26 Rule 8(a) of the Arizona Rules of Procedure for Special Actions directs that the “decision of a Superior Court in a special action shall be reviewed by appeal where there is an equally plain, speedy, and adequate remedy by that means.” Consistent with that Rule, I would hold that we have appellate jurisdiction here pursuant to A.R.S. § 12-2101(A)(1), as the parties assert.