NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DANIEL WAYNE GIBSON, Appellant.

No. 1 CA-CR 21-0448 

Appeal from the Superior Court in Mohave County

No. S8015CR201800464

The Honorable Richard D. Lambert, Judge

APPEAL DISMISSED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Gracynthia Claw

Counsel for Appellee

Law Firm of Daniel B. Kaiser, Flagstaff

By Daniel B. Kaiser

Counsel for Appellant

FILED 6-2-2022
STATE v. GIBSON

Decision of the Court

2

MEMORANDUM DECISION

Judge Brian Y. Furuya delivered the decision of the Court, in which 

Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

F U R U Y A, Judge:

¶1 Daniel Wayne Gibson appeals from a restitution order 

entered pursuant to a guilty plea. We dismiss the appeal for lack of 

jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶2 The State charged Gibson with burglary in the third degree, 

theft, transporting a motor vehicle to a chop shop, and two counts of theft 

of means of transportation. Gibson accepted the State’s offer to plead guilty 

to an amended charge of attempted theft of means of transportation. The 

plea agreement stipulated that Gibson be sentenced to two years’ 

imprisonment and that he pay “restitution to the victims on all counts, 

including any and all dismissed counts, with [a] restitution cap of 

$242,000.00.” Gibson further agreed he would have no “right to appeal from 

the judgment or sentence imposed as a result of th[e] stipulated guilty 

plea.” In exchange for Gibson’s plea, the State agreed to dismiss the other 

charges.

¶3 The superior court accepted Gibson’s plea, sentenced him to 

two years’ imprisonment with 412 days’ presentence incarceration credit, 

dismissed the other charges, and scheduled a restitution hearing. The 

hearing was continued multiple times, and Gibson moved, after he had 

been released from prison for more than a year, to deny any restitution 

order on account of unreasonable delay. The court denied Gibson’s motion,

held a restitution hearing, and entered an order requiring him to pay

$31,013.26 in restitution.

¶4 Gibson appealed, arguing that the court lacked jurisdiction to 

order restitution after his sentence had expired, that the delay between the 

imposition of sentence and order of restitution was unreasonable, and that 

the amount of restitution ordered exceeded the victims’ economic loss. The 

State disputes Gibson’s claims.
STATE v. GIBSON

Decision of the Court

3

DISCUSSION

¶5 The Arizona Constitution guarantees criminal defendants a 

right to appeal. Ariz. Const. art. 2, § 24. But for defendants who plead guilty

in noncapital cases, the constitutional right to appeal may only be exercised 

through a proceeding for post-conviction relief. See State v. Smith, 184 Ariz. 

456, 458 (1996). That limitation is expressed in our statutes and rules.

Subsection (B) of Arizona Revised Statutes (“A.R.S.”) § 13-4033 states: “In 

noncapital cases a defendant may not appeal from a judgment or sentence 

that is entered pursuant to a plea agreement or an admission to a probation 

violation.” Arizona Rule of Criminal Procedure (“Rule”) 17.1(e) provides:

“A defendant who pleads guilty or no contest in a noncapital case waives 

the right to file a notice of appeal and to have an appellate court review the 

proceedings on a direct appeal under Rule 31. A defendant who pleads 

guilty or no contest may seek relief under Rule 33 by filing a Notice 

Requesting Post-Conviction Relief and a Petition for Post-Conviction Relief 

in the trial court.” Consistent with those provisions, Gibson received a 

notice when he was sentenced informing him he had no right to a direct 

appeal if he had pleaded guilty.

¶6 Gibson and the State both assert in their briefs that we have 

jurisdiction over Gibson’s appeal under A.R.S. § 13-4033(A)—the statute 

enumerating what decisions are appealable by a criminal defendant. 

Neither party addresses the applicability of § 13-4033(B) or Rule 17.1(e). We 

have an independent duty to assess and confirm our appellate jurisdiction, 

which “is provided and limited by law” and which may not be conferred 

by the parties’ agreement or error. State v. Serrano, 234 Ariz. 491, 493, ¶ 4

(App. 2014).

¶7 In Hoffman v. Chandler ex rel. Cnty. of Pima, 231 Ariz. 362 (2013), 

our supreme court considered whether a post-judgment restitution order 

entered after the defendant pleaded guilty was appealable under § 13-

4033(A)(3) (appeal of post-judgment order affecting the defendant’s 

substantial rights) or subject to § 13-4033(B)’s limitation on direct appeal. 

The court held that “when subsection (B) [of § 13-4033] applies, subsection 

(A) cannot be invoked to authorize a direct appeal.” Id. at 365, ¶ 16. 

Reasoning that the legislature intended a post-judgment restitution order 

contemplated by a plea agreement to be treated as part of the defendant’s 

“sentence” under § 13-4033(B), id. at 364, ¶¶ 9–11, the supreme court held 

that § 13-4033(B) “bars a defendant from directly appealing a contested 

post-judgment restitution order entered pursuant to a plea agreement that 

contemplated payment of restitution up to a capped amount. Any appellate 
STATE v. GIBSON

Decision of the Court

4

review must be obtained through post-conviction relief proceedings.” Id. at 

362–63, ¶ 1.

¶8 We see no meaningful distinction between this case and 

Hoffman that would cast doubt on Hoffman’s applicability here. Like the 

defendant in Hoffman, Gibson agreed, in accepting the plea offer, to pay 

restitution up to a capped amount and to waive the right to a direct appeal. 

Id. at 365, ¶ 17. Also as in Hoffman, the restitution in Gibson’s case was 

contested and ordered after the sentencing hearing. Id. at 363, ¶ 3. Neither 

of those facts altered the Hoffman court’s decision that the restitution order 

was not appealable.

CONCLUSION

¶9 Because the restitution order in Gibson’s case was entered 

pursuant to a plea agreement that contemplated the payment of restitution 

up to a capped amount, Gibson’s direct appeal of the order is barred by 

A.R.S. § 13-4033(B) and Rule 17.1(e). We therefore dismiss the appeal for 

lack of jurisdiction.