Opposition Brief — Arizona v. Flannigan

Supreme Court, U.S.

7 ee ae D

Nov 29 1999

No. 99-399

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF ARIZONA

Petitioner,

vs.

BILLY JOE FLANNIGAN,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE

ARIZONA SUPREME COURT

RESPONDENT’S BRIEF IN OPPOSITION

CHRISTOPHER V. JOHNS

Deputy Public Defender

11 West Jefferson, Suite 5

Phoenix, Arizona 85003-2302

Attorney for RESPONDENT

QUESTION PRESENTED

When the evidence shows that it is practical to obtain

a warrant because the exigent circumstance is drugs that are

less evanescent than alcohol, do law enforcement officials

violate the Fourth Amendment by not obtaining a warrant, by

instead relying upon a fixed policy that all traffic accident

cases involving a serious injury or death automatically equal

“exigent circumstances?”

TABLE OF CONTENTS

Page

QUEBTION PIREGIIN TEED ....ccsevcescvscesessvseccssssessevavacvecssstaane i

TABLE OF AUTHORITIES ....0..0......cccccccccccsscessesesseesseces iii

RESPONSE TO PETITION FOR WRIT OF

| _ RT S ET ET MR I l

REASONS FOR DENYING THE PETITION.................. |

I. The issue presented is moot. Before petitioning

for a writ for certiorari the State negotiated a plea

agreement with Flannigan for time served. Flannigan

has been sentenced, jeopardy has attached, and his

time to appeal has lapsed...............c.ccccccsssseseceseseececeees ]

Il. No compelling grounds exist to grant a writ of

certiorari since the Arizona Court of Appeals decision

is consistent with federal law and holds only that the

State may not rely on a traffic accident to

automatically bestow exigent circumstances in order

to seize evidence from an arrestee...........cccccececseseceees 4

CERIO INE i sicecsssiicessienenipuceincanensenbvencelianen eae lan 9

il

TABLE OF AUTHORITIES

PAGE

CASES

Campas v. Superior Court In and For County of Maricopa,

159 Ariz. 343,767 P.2d 230 (1989)..........cccccecccsceseesseeeeeees 3

Ex parte Lange, 85 U.S. (11 Wall. 163)(1873)...............c00000. 2

Johnson v. United States, 333 U.S. 10 (1960) ........0..cccccceeeee 8

Menna v. New York, 423 U.S. 61 (1975) .......ccccccccccceeseeeeeseees 2

Mincey v. Arizona, 437 U.S. 385 (1978).........ccccccceeeeeees 5,7,8

Minnesota v. Olson, 495 U.S. 91 (1990).......ccccccccesceeseeeeeeseees 5

North Carolina v. Pearce, 395 U.S. 711 (1969) .........ccccccceee 3

Schmerber v. California, 384 U.S. 757 (1966) .........ccc000000. 4,5

Skinner v. Railway Labor Executives Assn.,

REE 7

State v. Cocio, 147 Ariz. 277, 709 P.2d 1336 (1985)............. 7

State v. Krantz, 174 Ariz. 211, 848 P.2d 296 (App. 1992)....7

Wisconsin v. Bohling, 494 N.W.2d 399 (1993).........ccccc000. 6,7

CONSTITUTIONAL PROVISIONS

I i, icsnabenenenere 3

IIIS BO” icrcccshbscendenvenesbenndsncnecendowsantecsooedeocers 4.8

ESE TE ae 3

RULES

I I IED ao saccrscevscnecssecesveccoscsesewneisaesensss 4

oS ee 3

Rule 31.23(b), Ariz. Rules of Crim. P. .0............:cccccccccceeeceeees 3

OTHER AUTHORITIES

LaFave, Search and Seizure, section 6.5(1)( 1994) .............0.. 5

iil

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

Billy Joe Flannigan ("Flannigan") respectfully requests

that the Court deny the petition by the State of Arizona

("State") for a writ of certiorari.

JURISDICTION

This Court lacks jurisdiction. Before applying for a

writ of certiorari, the State entered into a plea agreement with

Flannigan. The Superior Court of Arizona for Maricopa

County accepted the plea agreement and sentenced Flannigan

on July 20, 1999. Flannigan's time to file an appeal from his

plea agreement has lapsed. Jeopardy has attached.

REASONS FOR DENYING THE PETITION

I. The issue presented is moot. Before petitioning for

a writ of certiorari the State negotiated a plea

agreement with Flannigan for time served.

Flannigan has been sentenced, jeopardy has

attached, and his time to appeal has lapsed.

The Arizona Court of Appeals issued its decision in this

case on November 3, 1998. See Arizona Court of Appeals

Order and Mandate, Appendix A (filed June 18, 1999). The

State timely filed a motion for rehearing, followed by a petition

for review with the Arizona Supreme Court. The Arizona

Supreme Court denied the petition for review on May 26, 1999.

Id.

On July 20, 1999, the State entered into a written plea

agreement with Flannigan. See Appendix B. The agreement

sentenced Flannigan to time served, a final restitution payment,

and revocation of his dtiving privileges. The Maricopa County

Superior Court accepted the plea agreement and sentenced

Flannigan the same day. See Sentence of Imprisonment,

Appendix C.

The trial court advised Flannigan of his right to an

appeal and to file a petition for post conviction relief. Jd.

Flannigan's jurisdiction time limits have lapsed to file either

form of relief. Jd.

It is "settled" that "no man can twice lawfully be

punished for the same offense after conviction." Ex parte

Lange, 85 U.S. (18 Wall. 163 )(1873). This case is moot

because jeopardy has attached. The State of Arizona

voluntarily entered into a plea agreement with Flannigan more

than 30 days before filing a writ of certiorari. Nothing in the

plea agreement provided for waiver of jeopardy. Any waiver

of the prohibition against double jeopardy must be express. See

Menna v. New York, 423 U.S. 61 (1975).

The primary purpose of the double jeopardy clause is to

protect persons "against a second prosecution for the same

offense after conviction. See North Carolina v. Pearce, 395

U.S. 711, 717 (1969). Acceptance of a guilty plea places the

accused in jeopardy. U.S. Const. Amend. V; Ariz. Const. Art.

2, section 10; see also Campas v. Superior Court In and For

County of Maricopa, 159 Ariz. 343, 767 P.2d 230 (1989).

Applying these principles, the State cannot enter into a

plea agreement with Flannigan finalizing his case and then

attempt to overturn his conviction through a petition of

certiorari. The State has in effect waived its right to file a writ

of certiorari, It is without authority to prosecute Flannigan.

Likewise, the State has no authority to request this Court to

provide an advisory opinion. Moreover, if the State intended

to seek a writ of certiorari, it could have sought a stay of the

issuance of the Court of Appeal's mandate and order. Rule 17,

of the Arizona Rules of Criminal Procedure, provides such a

procedural mechanism. See Appendix D, Rule 31.23(b) Ariz.

Rules of Crim. P. The State chose not to seek a stay. Once a

mandate is issued the appellate process is terminated. The

State should not be allowed to resurrect a case it bargained

away. Any attempt to do so would profoundly impact

Flannigan's constitutional rights.

The case is moot.

IL. No compelling grounds exist to grant a writ of

certiorari since the Arizona Court of Appeals

decision is consistent with federal law, and holds

only that the State may not rely on a traffic accident

to automatically bestow exigent circumstances to

seize evidence from an arrestee.

Even if this Court were to ignore mootness in order to

issue a writ of certiorari there is no compelling reason to grant

the State's petition. Supreme Court Rule 10 sets forth the

limited circumstances in which this Court will exercise its

discretionary powers in granting a petition for writ of certiorari.

A close reading of the Arizona Court of Appeals opinion

shows that this case does not meet any of the prerequisites of

Rule 10.

The Arizona Court of Appeals Decision Does not

Conflict with Schmerber.

For more than three decades Schmerber v. California,

384 U.S. 757 (1966) has established that seizing blood as

evidence of guilt constitutes a search triggering Fourth

Amendment constitutional protection. U.S. Const. Amend. IV.

A warrantless blood seizure may, however, be constitutional

if it falls within an exception to the warrant requirement.

Despite an intrusion into the body, blood may be seized if there

are exigent circumstances. The exception is based on the

4

rationale that substances in the blood will disappear and,

consequently, evidence wiil be destroyed.

Constitutionally, a warrantless search must be strictly

circumscribed by the emergency that justified its initiation.

Minnesota v. Olson, 495 U.S. 91, 101 (1990); see also Mincey

v. Arizona, 437 U.S. 385 (1978)(rejecting a murder scene

exception to the warrant requirement). Not every circumstance

that threatens destruction of potential evidence justifies its

seizure. Wayne R. LaFave, Search and Seizure, section

6.5(a 1994).

Applying Schmerber to the facts of Flannigan's case, the

Arizona Court of Appeals held that exigent circumstances did

not exist. It based its holding on the fact that the State did not

consider obtaining a warrant. Instead, the State relied upon the

mechanical test that whenever there is a car accident exigent

circumstances automatically exist.

In Flannigan's case, evidence at the suppression hearing

showed that police routinely obtain telephonic warrants in from

15 to 45 minutes. Unlike Schmerber, Flannigan's case did not

involve alcohol, but instead probable cause to believe that a

stimulant class of drug was present in his body. Evidence

further showed that stimulants, whether methamphetamine or

cocaine, remain considerably longer in the body than alcohol.

In some cases, stimulants may remain in the body up to 4 days.

The State wants to make this an alcohol case. Virtually

every case it relies upon for authority involves alcohol. The

entire rationale of the State's case is based on a substance that

is eliminated by the body at a substantially faster rate than

stimulants. Moreover, alcohol prosecutions rely upon an

accurate measurement of blood alcohol level, while in

Flannigan's case the issue is only detection.

Wisconsin v. Bohling is Distinguishable.

The State's reliance on Wisconsin v. Bohling is

inapplicable to Flannigan's case. It involved alcohol. Bohling,

read in the proper context, does not support the State's

argument. Further, compare, Note, 60 So. Cal. L. rev. 1115,

1140 (1987) to Bohling. The Note argues that "since alcohol

dissipates over a fairly long period of time . . . expedited

procedures for obtaining search warrants and procedures

presently used in felony drunk driving cases, in at least some

states, negate the argument that the evidence will not survive

the period required to obtain the warrant." Both Bohling and

the above Note are extensively discussed in LaFave, Search

and Seizure, section 6.5(a)(1994).

Skinner v. Railway Labor Executives Assn.

Likewise, the State's reliance on Skinner v. Railway

Labor Executives Assn., 489 U.S. 602, is misplaced. Skinner

involves a different exception to the warrant requirement based

on a public employee administrative search. |

Flannigan does not conflict with other Arizona cases.

As untenable as the State's argument that Bohling and

Skinner support its reading of Flannigan's case is its contention

that it overrules Arizona cases. It does not.

State v. Cocio, 147 Ariz. 277, 709 P.2d 1336 (1985)

turned on blood taken for medical purposes. State v. Krantz,

174 Ariz. 211, 848 P.2d 296 (App. 1992), turned on obtaining

evidence in a DUI context. The State cannot cite an Arizona

case that, read closely, is inconsistent with the decision in

Flannigan.

An Accident Exception to the Warrant Requirement.

What the State really seeks is an accident exception to

the warrant requirement not unlike the "murder scene"

exception this Court overruled in State v. Mincey. That is what

this case is all about.

The fairly complicated facts of Mincey can be briefly

summarized as follows: During a narcotics raid on Mincey's

apartment in Tucson, Arizona, an undercover police officer,

vs Daina

who had slipped into Mincey's bedroom, was found shot and

later died. Homicide detectives conducted an exhaustive

warrantless search of Mincey's apartment for four days and

seized over 200 objects. Mincey was convicted of murder,

assault, and several narcotic violations. During the trial and

appeal, Mincey argued that the evidence seized from his

apartment should be suppressed. The Arizona Supreme Court,

however, held that a warrantless search of a homicide scene did

not violate the Fourth Amendment so long as the search was

reasonably limited to determine the circumstances of death. In

others words, a "murder scene" exception to the Fourth

Amendment. This Court did not agree. As justice Stewart

wrote in Mincey:

The point of the Fourth Amendment, which

often is not grasped by zealous officers, is not

that it denies law enforcement the support of

the usual inferences which reasonable men

draw from evidence. Its protection consists in

requiring that those inferences be drawn by a

neutral and detached magistrate instead of

being judged by the officer engaged in the

often-competitive enterprise of ferreting out

crime. (Citing Johnson v. United States, 333

U.S. 10, 13-14 (1960)).

It is the nature of the threat to the destruction of

evidence that defines the exigent circumstance exception in all

cases. In this case, given that the evidence could have been

detected for up to approximately 4 days, it was reasonable for

law enforcement officials to obtain a warrant. The State had

ample time to obtain a warrant before the destruction of

evidence.

CONCLUSION

The petition for writ of certiorari should be denied. The

State should not be allowed to breathe new life into a case it

bargained away. Jeopardy has attached and the case is moot.

Further, the Arizona Court of Appeals left completely

in tact the exigent circumstances exception carved out from the

Fourth Amendment that permits police officers to conduct a

search if there is probable cause to believe evidence will be

destroyed. The destruction of evidence must be imminent. It

was not in this case.

Respectfully submitted,

CHRISTOPHER V. JOHNS

Deputy Public Defender

(Counsel of Record)

11 West Jefferson, Suite 5

Phoenix, Arizona 85003

(602) 506-8190

Counsel for RESPONDENT

APPENDIX A

IN THE

COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

STATE OF ARIZONA, No. 1 CA-CR 97-0763

DEPARTMENT A

Appellee,

Maricopa County

V. Superior Court

No. CR-95-90117

BILLY JOE FLANNIGAN,

Appellant.

ORDER and MANDATE

Janet A. Napolitano, The Attorney General

By: Paul J. McMurdie, Chief Counsel,

Criminal Appeals Section

and

Gregory A. McCarthy, Assistant Attorney

General

Attorney for Appellee

Dean W. Trebesch, Maricopa County Public Defender

By: Christopher V. Johns, Deputy Public

Defender

Attorneys for Appellant

en

63

ORDER and MANDATE

Page Two

1 CA-CR 97-0763

DEPARTMENT A

MARICOPA County

Superior Court

No. CR 95-90117

The opinion of this Court in the above matter was

filed on November 3, 1998.

The motion for reconsideration was denied and notice

thereof was given on December 4, 1998. A petition for

review was filed. The record was forwarded to the Arizona

Supreme Court. By order, dated May 26, 1999, the Arizona

Supreme Court denied the petition for review, Supreme

Court No. CR-98-0551-PR.

IT IS ORDERED in conformity with the opinion

attached hereto.

IT IS FURTHER ORDERED that a certified copy

of the foregoing ORDER and

MANDATE and a copy of the opinion of the court were

mailed to the Clerk of the Superior Court for MARICOPA

County, Arizona, on June 18, 1999. A copy of the ORDER

and MANDATE and a copy of the opinion were mailed to

the Honorable Mark F. Aceto, Judge, and a copy of the

ORDER and MANDATE was mailed on said day to each

party appearing or the attorneys of record; as well as the

MARICOPA County Attorney.

ORDER and MANDATE

Page Three

1 CA-CR 97-0763

DEPARTMENT A

MARICOPA County

Superior Court

No. CR 95-90117

IT IS FURTHER ORDERED pursuant to this Court’s

order of the 11th day of March, 1965, that the Clerk of this

Court return to the Clerk of the Superior Court, all records,

exhibits, and other matters received form said Clerk of the

Court in aid of the consideration of this matter.

DATED June 18, 1999.

VICE CHIEF JUDGE

All of the foregoing directives were

complied with June 18,1999.

GLEN D. CLARK, Clerk

By

APPENDIX B

IN THE SUPERIOR COURT OF THE STATE OF

ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

STATE OF ARIZONA, No. CR-95-90117

Plaintiff,

v. PLEA AGREEMENT

BILLY JOE FLANNIGAN,

Defendant.

E

the cri

The State of Arizona and the Defendant hereby agree

to the following disposition of this case:

The Defendant agrees to plead guilty to:

Count 1: Negligent Homicide, a Class 4 Felony, in

violation of A.R.S. §§ 13-1011, 13-1102, 28-444, 28-

445, 28-448, 13-70 -702, and 13-801 committed

on August 18, 1994.

This is a nondangerous, nonrepetitive der

inal code.

THIS OFFER EXPIRES AND IS REVOKED IF NOT

ENTERED IN COURT BY July 20,1999.

Terms: On the following understandings, terms and conditions:

Ol.

The crime carries a presumptive sentence of 2.5 years;

a minimum sentence of 1.5 years (1 years if trial court

STATE OF ARIZONA, No. CR-95-90117

Plaintiff,

v. PLEA AGREEMENT

BILLY JOE FLANNIGAN,

Defendant.

makes exceptional circumstances finding); and a

maximum sentence of 3 years (3.75 years if trial court

makes exceptional circumstances finding). Probation

is available. Restitution of economic loss to the victim

and waiver of extradition for probation revocation

procedures are required. The maximum fine that can be

imposed is $150,000 plus a 57% surcharge. If the

Defendant is sentenced to prison, the Defendant shall

also be sentenced to serve a term of community

supervision equal to one-seventh of the prison term to

be served consecutively to the actual period of

imprisonment. If the Defendant fails to abide by the

conditions of community supervision, the Defendant

can be required to serve the remaining term of

community supervision in prison. Special conditions

regarding the sentence imposed by statute (if any) are

revocation of Deft ’s driving privileges

by M.V.D.

O02. The parties stipulate to the following additional terms,

subject to court approval at the time of sentencing as set

forth in paragraph 7.)

Deft t ]_ be sentenced to the ent of

Corrections for a period of time equal to time served.

Restitution shall be paid to the MCSO Business Office

STATE OF ARIZONA, No. CR-95-90117

Plaintiff,

v. PLEA AGREEMENT

BILLY JOE FLANNIGAN,

Defendant.

in the amount of $1,792.26. fendant’s drivi

rivilege ] Vv

03. The following charges are dismissed or, if not yet filed,

shall not be brought against the Defendant:

Counts 2 and 3.

04. This agreement serves to amend the complaint or

information, to charge the offense to which the

Defendant pleads, without the filing of any additional

pleading. However, if the plea is rejected by the court

or withdrawn by either party, or if the conviction is

subsequently reversed, the original charges and any

charges that are dismissed by reason of this plea

agreement are automatically reinstated.

05. If the Defendant is charges with a felony, he hereby

waives and gives up his rights to a preliminary hearing

or other probable cause determination on the charges to

which he pleads. The Defendant agrees that this

agreement shall not be binding on the State should the

Defendant be charged with or commit a crime between

the time of this agreement and the time for sentencing

STATE OF ARIZONA, No. CR-95-90117

Plaintiff,

v. PLEA AGREEMENT

BILLY JOE FLANNIGAN,

Defendant.

06.

in this cause; not shall this agreement be binding on the

State until the State confirms all representations made

by the Defendant and his attorney, to wit:

None.

If the Defendant fails to appeal for sentencing, the court

may disregard the stipulated sentence and impose any

lawful sentence which is the same as or exceeds the

stipulated sentence in the plea agreement. In the event

the court rejects the plea, or either the State or the

Defendant withdraws the plea, the Defendant hereby

waives and gives up his right to a preliminary hearing

or other probable cause determination on the original

charges.

Unless this plea is rejected by the court or withdrawn by

either party, the Defendant hereby waives and gives up

any and all motions, defenses, objections, or requests

which he has made or raised, or could assert hereafter,

to the court’s entry of judgment against him and

imposition of a sentence upon him consistent with this

agreement. By entering this agreement, the Defendant

further waives and gives up the right to appeal.

STATE OF ARIZONA No. CR-95-90117

Plaintiff,

v. PLEA AGREEMENT

BILLY JOE FLANNIGAN,

Defendant.

07. The parties hereto fully and completely understand and

08.

agree that it is the court’s duty to impose sentence upon

the Defendant, and that any sentence either stipulated to

or recommended herein in paragraph two is not binding

on the court. If after accepting this plea the court

concludes that any of the plea agreement’s provisions

regarding the sentence or the term and conditions of

probation are inappropriate, it can reject the plea. If the

court decides to reject the plea agreement provisions

regarding sentencing, it must give bother the state and

the Defendant an opportunity to withdraw from the plea

agreement. In case this plea agreement is withdrawn,

all original charges will automatically be reinstated.

The Defendant in such case waives and give up his

right to a probable cause determination on the original

charges.

If the court decides to reject the plea agreement

provisions regarding sentencing and neither the state

nor the Defendant elects to withdraw the plea

agreement, then any sentence either stipulated to or

recommended herein in paragraph 2 is not binding upon

the court, and the court is bound only by the sentencing

limits set forth in paragraph 1 and the applicable

statutes.

STATE OF ARIZONA, No. CR-95-90117

Plaintiff,

v. PLEA AGREEMENT

BILLY JOE FLANNIGAN,

Defendant.

09. This plea agreement in no way affects any forfeiture

proceedings pursuant to A.R.S. § 13-4301 et esq., § 13-

2314, or § 32-1993, if applicable, nor does the plea

agreement in any way compromise or abrogate any civil

actions, including actions pursuant to A.R.S. § 13-2301

et seq. or § 13-4301 et seq., or the provisions of A.R.S.

§ 13-2314 or A.RS. § 13-4310.

010. Ihave read and understand the provisions of pages one

and two of this agreement I have discussed the case and

my constitutional rights with my lawyer. I understand

that by pleading guilty I will be waiving and giving up

my right to a determination of probable cause, to a trial

by jury, to confront, cross-examine, compel the

attendance of witnesses, to present evidence in my

behalf, my right to remain silent, my privilege against

self-incrimination, presumption of innocence and right

to appeal. I agree to enter my plea as indicated above

on the terms and conditions set forth herein. I fully

understand that if, as part of this plea agreement, | am

granted probation by the court, the terms and conditions

thereof are subject to modification at any time during

the period of probation. I understand that if I violate

any of the written conditions of my probation, my

probation may be terminated and I can be sentenced to

STATE OF ARIZONA, No. CR-95-90117

Plaintiff,

v. PLEA AGREEMENT

BILLY JOE FLANNIGAN,

Defendant.

any term or terms state above in paragraph one, without

limitation.

I have personally and voluntarily placed my initials in each of

the above boxes and signed the signature line below to indicate

I read and approved all of the previous paragraphs in this

agreement, both individually and as a total binding agreement.

Date Defendant

BILLY JOE FLANNIGAN

I have discussed this case with my client in detail and advised

him of his constitutional rights and all possible defenses. |

believe that the plea and disposition set forth herein are

appropriate under the facts of this case. I concur in the entry of

the plea as indicated above and on the terms and conditions set

forth herein.

Date Defense Counsel

Mark Nermyr

I have reviewed this matter and concur that the plea and

disposition set forth herein are appropriate and are in the

interests of justice.

Date Prosecutor

Michael G. Gingold

APPENDIX C

SUPERIOR COURT OF ARIZONA

Maricopa County

CLERK OF THE COURT

R193B

July 20, 1999 HONORABLE MARK F. ACETO

D. Smalley

Deputy

No. CR 95-90117

FILED: 07-22-99

STATE OF ARIZONA County Attorney

By: Michael Gingold

v.

Mark Nermyr, PD

BILLY JOE FLANNIGAN

DOB: 09-05-68

SENTENCE OF IMPRISONMENT

9:47 a.m. State is represented by above-named counsel.

Defendant is present with above named counsel.

Court Reporter, Jodie Guhr, is present.

The Defendant is advised of the charge, the

determination of guilt and is given the opportunity to speak.

Docket Number 193 Continued Page 1

———

SUPERIOR COURT OF ARIZONA

Maricopa County

CLERK OF THE COURT

R193B

July 20, 1999 HONORABLE MARK F. ACETO

D. Smalley

Deputy

No. CR 95-90117

STATE v. FLANNIGAN Continued

THE COURT FINDS that reasonable efforts have been

made to give the victim notice of this proceeding and an

opportunity to be heard.

Pursuant to A.R.S. Section 13-607,

THE COURT FINDS AS FOLLOWS:

WAIVER OF TRIAL. The Defendant knowingly,

intelligently and voluntarily waived his right to a trial with or

without a jury, his right to confront and cross examine

witnesses, his right to testify or remain silent and his night to

present evidence and call his own witnesses after having been

advised of these rights. The determination of guilt was based

upon a plea of guilty.

Docket Number 193 Continued Page 15

SUPERIOR COURT OF ARIZONA

Maricopa County

CLERK OF THE COURT

R193B

July 20, 1999 HONORABLE MARK F. ACETO

D. Smalley

Deputy

No. CR 95-90117

STATE v. FLANNIGAN Continued

Having found no legal cause to delay rendition or

judgment and pronouncement of sentence, the Court enters the

following judgment and sentence:

IT IS THE JUDGMENT of the Court that the

Defendant is guilty of the following crime(s) as set forth on the

following page(s), that upon due consideration of all the facts,

law and circumstances relevant herein, the Court finds that

suspension of sentence and a term of probation are not

appropriate and that a sentence of imprisonment with the

Department of Corrections is appropriate.

THE COURT FURTHER FINDS that there are

circumstances sufficiently substantial to call for the term as

indicated. These circumstances are state by the Court on the

record

Docket Number 193 Continued Page 16

SUPERIOR COURT OF ARIZONA

Maricopa County

CLERK OF THE COURT

R193B

July 20, 1999 HONORABLE MARK F. ACETO

D. Smalley

Deputy

No. CR 95-90117

STATE v. FLANNIGAN Continued

AS PUNISHMENT, IT IS ORDERED that the

Defendant is sentenced to a term of imprisonment and is

committed to the Arizona Department of Corrections as

follows:

OFFENSE: NEGLIGENT HOMICIDE

FELONY CLASS: 4NONREPETITIVE

IN VIOLATION OF A.R‘S. Section 13-1101, 13-1102, 28-444,

28-445, 28-448, 13-701, 13-702 and 13-801

DATE OF OFFENSE: 08-18-94

SENTENCE: 2 years

MITIGATED

NONDANGEROUS

This sentence is to date from July 20, 1999.

The Defendant is to be given credit for two years served

prior to sentencing.

Docket Number 193 Continued Pagel

SUPERIOR COURT OF ARIZONA

Maricopa County

CLERK OF THE COURT

R193B

July 20, 1999 HONORABLE MARK F. ACETO

D. Smalley

Deputy

No. CR 95-90117

STATE v. FLANNIGAN Continued

IT IS FURTHER ORDERED that the Defendant

shall serve one day for every seven days of the sentence

imposed under the supervision of the Community Supervision

Program, to be served consecutively to the actual period of

imprisonment.

RESTITUTION: IT IS ORDERED the Defendant

shall make and pay restitution to the victim(s) of this crime, for

the economic loss of the victim(s), through the Clerk of the

Superior Court in the total amount of $1,792.26. Restitution is

owed in the following amounts of the following persons:

MCSO Business Office $1,792.26

Payment shall commence on the first day of the second

month upon release from custody of the Department of

Corrections. Said payment shall not be less than $40.00 per

month.

Docket Number 193 Continued Page 18

SUPERIOR COURT OF ARIZONA

Maricopa County

CLERK OF THE COURT

R193B

July 20, 1999 HONORABLE MARK F. ACETO

D. Smalley

Deputy

No. CR 95-90117

STATE v. FLANNIGAN Continued

IT IS ORDERED the Adult Probation Office shall

submit a new restitution ledger to the Clerk of the Court.

Pursuant to A.R.S. Section 12-116, Defendant shall pay

a fee of $20.00 to the Clerk of the Superior Court of Maricopa

County. Should Defendant pay all penalties, fines and/or

sanctions in full this date, said fee is not applicable.

The Defendant is advised concerning rights of review

after conviction and written notice of those rights is provided.

IT IS ORDERED granting the Motion to Dismiss

Counts 2 and 3.

IT IS ORDERED the defendant shall not be transported

to the Department of Corrections as he has served the sentenced

imposed.

IT IS FURTHER ORDERED the defendant shall report

to the Adult Probation Department upon release from jail.

Docket Number 193 Continued Page 19

SUPERIOR COURT OF ARIZONA

; Maricopa County

CLERK OF THE COURT

R193B

July 20, 1999 HONORABLE MARK F. ACETO

D. Smalley

Deputy

No. CR 95-90117

STATE v. FLANNIGAN Continued

ISSUED: Order of Release

FILED: Notice of Rights of Review After

Conviction.

Let the record reflect that the Defendant has waived

the preparation of a presentence report.

ce: DOC — Certified Copy via Certification Desk

MCSO-AIS — Certified Copy via Certification Desk

Docket Number 193 Continued Page 20

SUPERIOR COURT OF ARIZONA

Maricopa County

CLERK OF THE COURT

R193B

July 20, 1999 HONORABLE MARK F. ACETO

D. Smalley

Deputy

No. CR 95-90117

STATE v. FLANNIGAN Continued

Later:

The Court has been informed that the defendant

must be transported to the Arizona Department of Corrections

and released from there.

IT IS THEREFORE ORDERED authorizing the

Sheriff of Maricopa County to deliver the Defendant to the

custody of the Arizona Department of Corrections and

authorizing the Department of Corrections to carry out the term

of imprisonment by releasing the defendant forthwith.

Docket Number 193 Continued Page 21

APPENDIX D

17 A.RS.,, Arizona Rules of Criminal Procedure, Rule 31.23(b)

states:

(b) Stay of Mandate Pending Application for Certiorari.

(1) Automatic Stay in Capital Cases Affirming Death

Sentence. The clerk of the Supreme Court shall issue the

mandate in capital cases when the time for filing a petition for

writ of certiorari in the United States Supreme Court from the

decision affirming the defendant'+ conviction and sentence on

direct appeal has expired, or, in a case in which a petition for

writ of certiorari has actually been filed, when the clerk of the

Supreme Court is notified by the United States Supreme Court

that the petition has been denied. The filing of a petition for

rehearing of the denial of a petition for writ of certiorari shall

not delay the issuance of the mandate.

(2) In All Other Cases.

(i) A stay of the issuance of the mandate of either the

Court of Appeals or the Arizona Supreme Court pending

application to the United States Supreme Court for a writ of

certiorari may be granted upon request.

(ii) An application for a stay of the issuance of a

mandate of the Arizona Supreme Court may be filed with the

clerk of the Arizona Supreme Court within 15 days after the

filing of the court’s opinion, memorandum decision or order

denying a motion for reconsideration.

(iii) An application for a stay of the issuance of a

mandate of the Court of Appeals may be filed with the clerk of

the Court of Appeals within 15 days after an order of the

Supreme Court denying a petition for review, or in any other

situation requiring the Court of Appeals to issue a mandate.

(iv) The stay shall not exceed 90 days unless the period

is extended for cause shown. If, during the period of the stay,

there is filed with the clerk of the appropriate court a notice that

the party who has obtained the stay has filed a petition for a writ

of certiorari, the stay shall continue until the clerk is notified by

the United States Supreme Court that the writ has been denied

or, in a case in which the writ has been granted, that a mandate

has been issued by the United States Supreme Court.

17 A.RS., Arizona Rules of Criminal Procedure, Rule 31.19(c)

states:

(c) Form and Contents. The petition and cross-petition for

review shall be bound or fastened and shall comply with Rule

31.12. An original and six copies of the petition or cross-

petition and an original and two copies of any separately bound

or fastened appendices shall be filed. The parties shall be

designated as in the Court of Appeals. A copy of the Court of

Appeals’ decision shall be attached to the petition. Where the

Court of Appeals’ decision is simply an order declining to

accept jurisdiction of a special action, a copy of the Superior

Court’s decision from which the petition for special action was

taken shall also be attached to the petition. The petition shall

not exceed 12 pages whether done in proportionately spaced or

monospaced typeface, exclusive of the appendix and attached

decisions, and shall contain concise statements of the following:

(1) The issues which were decided by the Court of

Appeals and that the petition wishes to present to the Supreme

Court for review. The petition shall also list, separately and

without argument, those additional issues which were presented

to, but not decided by, the Court of Appeals and which may

need to be decided if review is granted.

(2) The facts material to a consideration of the issues

presented to the Supreme Court for review without appropriate

references to the record on appeal. No evidentiary matter shall

be included unless material to a proper consideration of the

issues presented, in which instance a reference shall be made to

the record or page of the transcript where such evidence

appears.

(3) The reasons the petition should be granted, which

may include, among others, the fact that no Arizona decision

controls the point of law in question, that a decision of the

Supreme Court should be overruled or qualified, that

conflicting decisions have been rendered by the Court of

Appeals, or that important issues of law have been incorrectly

decided.

If there are documents in the record on appeal that are

necessary for a determination of the issues raised by the petition

or cross-petition, the petition and cross-petitioner shall file,

simultaneously with a copy of the petition and cross-petition, an

appendix consisting only of such documents. If the appendices

exceed 15 pages in length such appendices shall be bound or

fastened together separately from the petition and the copy of

the Appeals Court decision or the cross-petition.

Any petition for review presented for filing that does

not substantially comply with this rule may, in the discretion of

the clerk of the appellate court, be returned to the petitioner by

the clerk with written instructions to the petitioner to file a

proper petition within 30 days from the date on which the

written instructions are mailed to the petitioner.