IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO

THE STATE OF ARIZONA, Petitioner,

v. HON. HOWARD HANTMAN, Ju dge of the Superior Court, in an d for the County of Pima, Respondent,

and ALLAN CLYDE RIEDEL,

Real Party in Interest. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2 CA-SA 2003-0026

DEPARTMENT A O P I N I O N

SPECIAL ACTION PRO CEEDING Pima County Cause No. C R20022216 RELIEF GRANTED Barbara LaWall, Pima County Attorney By Amy Pignatella Cain Susan A. Kettlewell, Pima County Public Defender By John L. Pollock Tucson Attorneys for Petitioner

Tucson Attorneys for Real Par

ty in Interest B R A M M E R, Presiding Judge. ¶1 The State of Arizona petition s this court for special act ion relief in its a

ttempt t o reinstate a misdemeanor prosec ution for driving under the influence of an intoxicant (DUI) a nd2

driving with a blood alcohol concen tration (BAC) of .10 or m ore agains t rea l party in interest Allan Clyde Riedel. A justice of the peace ordered t he charges dismissed on statut e of limitations grounds, an order that was subse quently affirmed by the r espondent superior court jud ge on appeal. For the following reasons, we accept jurisdiction and grant relief. ¶2 Because

this case originated in justice court, the s t ate appealed the dismiss al to superior court. See A.R.S. § 22-371(A) . Consequently, the state has no equally plain, speedy, and adequate remedy by appeal, because it has no further right to appeal. SeeA.R.S. § 22-375 (limited scope of such appeals does not encompass appe als from superior court’s ruling); State v. Superior Court , 188 Ariz. 372, 936 P.2d 558 (App. 1997) (special action only means by which

state may obtain further revie w). Moreover, the issue raised is a pure iss

ue of law, the reby presentinga question appropriate for special action

review. See United States v. Superior Co urt , 144 Ariz. 265, 697 P.2d 658 (1985). Accordingly, in our discre tion, we accept jurisdiction of t he special action. See Ariz. R. P. Special Act ions 1(a), 17B A.R. S. ¶3 Under A.R.S. § 13-107(B)(2), the stat e has one year to

commence a misdem

eanor prosecution. At issue here is the applicability and effect of § 13-107(G), the so-c alled “savings clause,” which permits the state to re file a dismissed charge

outside the one-year limitations per iod under c ertain circumstances. See Johnson v. Tucson City C ourt , 156 Ariz. 284, 751 P.2d 6 0 0 (App. 1988) (interpreting former § 13-107(F), now (G); 1997 Ariz. Sess. Laws, ch. 135, § 1). Section 13-107(G) provides:

If a complaint , indi ctment or information f iled before the period of limitation has expired is dismissed for any reason, a new prosecution

may be com

me nced within six months after the dismissal becomes final even if the period of limitation has expired at the time of the dismissal or will e xpire within six months

of the dismissal.3

¶1 The state and Riedel agree on the following proc edural history

of Riedel’s case in justice court: 11/27/99 Riedel arrested and charged w ith DUI offenses in cause TR99-050547 02/25/00 Cause TR99-050547 dismissed without prejudice 03/13/00 S ame DUI

charges refiled again

st Riedel in c aus e TR00-012019 01/15/02 Cause TR00-012019 dismissed without prejudice 03/27/02 Same DUI charges again refiled against Riedel in cause TR02-017969 On June 21, 2002, the justice of the peace granted Riede

l’s motion to dismiss the cha rges wit h prejudice, stating: “This case violates the statute of limitations. The second refile on March 27, 2002 is not allowable under an y application of the six-mo nth ‘savings clause.’” ¶2 Relying on this court’s decisions in Johnsonand Uhlig v. Lindberg , 189 Ariz. 480, 943 P.2d 840 (App. 1997), the respondent judge denied the state’s subsequent appeal in an order stating that, because the state had “re-filed the [charges] . . . within the one- year statute of limitations period[,] . . . the sav ings clause has no applicat ion to the State’s later dismissal outside the statute of limitations.” Howe ver, Johnsonand Uhlig actually compel the oppos ite conclusion. ¶1 In Johnson , a defendant’s char ges were dism

is sed without prejudice afte r the limitations period had expired. The st ate then refiled t

he charges within six months of the dismissal. For reasons relating to an ap pea l that the state initially pursued but then abandoned, the charges were again dismissed without prejudice. The state later refiled the charges, but still within six months of the original dism issal. This court held

that § 13-107(G) permits the sta te to again refile a case after i

t has been dismissed t

wic e, “so long as it is accomplis hed within the1 As in Uhlig , we are not presented with a situ ation in which a

charge is dismissed in the last six months of the one-year limitations period and refiled either during that six-month period or after the expiration of the one-year limitations period, which may implicate § 13-107(G). 4 six-month time frame triggered by the initial dismiss al without prejudice.” 156 Ariz. at 286, 751 P.2d at 602. ¶1 As apparently did the respondent judge, Riedel attaches great significa nce to the foregoingquote from Johnson , arguing that the six-month savings period here was “triggered” by the dismissal of TR99-0505 47 on February 25, 2000, be causethat was the

“initial dismissal.” But the quoted passage in Johnsonmust be understood

in context. In Johnson , both the initial and subsequent

sets of dismissals and refi lings we re made after the expiration of the one-year limitations period. In that situation, the six-m onth savings period that § 13-10 7(G) provides could only have been triggere d by the f

irst dismissal, after the one-year period of limitations had expired. But, as we made clear in Uhlig , the quoted language from Johnsondoes not apply to a first dismissal when, as here, the first dismissal and the subsequen t refiling of the charges o ccur within the one-year limita tions period. ¶2 In Uhlig , the charges against the defend ant were dismissed shortly after the limitations period had begun and were r efiled eight months later, still within the one-year limitations period but outside the six-mo nth time frame the savin gs c lau se provides. In this situation, we held that, bec ause the purpose of the sta tute is to extend the limitations period and not to reduce it, “§ 13-107( [G]) simply has no applic ation.” 189 Ariz. at 481, 94 3 P.2d at 841. ¶3 Here, the initial dismissal of the ch arges against Riedel in TR 99-0505 47 a nd the refiling of

those charges in TR00-012019 oc curred within the one-yea r limitations period. As in Uhlig , then, § 13- 1 07(G) simply had no applic ation to this first dismissal and r efiling. Consequently, that dismissal did not trigger the six-month savings period provided in the statute. 15

But the respondent judge’s conclusion that § 13-107(G) had no applicat ion t o the state’s later dismissal was unfounded and not required by Uhlig , which did not feature a se cond dismissal and refiling. The first refiling of the ch arges, in TR00-012019, occurred before the lim itations period expired. It

is irrelevant

that those were refiled

charges; they were stillfiled within the limitations period, as required by

§ 13-107(G). It

was the dismissal of those c harges on January 15, 2002 , then, that implicated § 13-107( G) and triggered the six-m onth savings period. The state’s second refiling of the charges in TR02-017969 le ss than three months later, therefore, was within the applicable

savings period provided by § 13-107(G). The justice of the peace erroneously ordered the prosecution dismissed on statute of limitations grounds, andthe respondent judge abuse d his discretion in affirming tha t order on appeal based on Johnsonand Uhlig

. See State v. Chapple , 135 Ariz. 281, 660

P.2d 1208 (1983) (equa

ting abuse

of discretion with legally incorrect ruling). ¶4 Accordingly, we ac cept jur isdiction and grant relief. SeeAriz. R. P. Special Actions 3 (claims of abuse of di scre tion properly raised in special action proceedings). We therefore vacate the respondent judge’s order dated January 23, 2002.

____________________________ ____________ J. WILLIAM BRAMMER , JR., Presiding Judge CONCURRING:

____________________________ __________ M. JAN FLÓREZ, Judge

____________________________ __________ JOSEPH W. HOWARD, Jud ge