IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

STACEY ANN MCCARTNEY, Appellant.

No. 1 CA-CR 20-0477

Appeal from the Superior Court in Maricopa County

No. CR2016-030308-001

The Honorable Glenn A. Allen, Judge Pro Tempore

AFFIRMED IN PART; VACATED IN PART AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jillian B. Francis

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Jennifer Roach

Counsel for Appellant

OPINION

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which 

Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.

FILED 7-1-2021
STATE v. MCCARTNEY

Opinion of the Court

2

W I N T H R O P, Judge:

¶1 After Stacey Ann McCartney was convicted of two drug 

offenses, the superior court suspended her sentences, imposed probation, 

and ordered her to pay various fines, fees, and assessments. She appealed 

her convictions and completed her probation before that appeal concluded. 

After she completed probation, but while her appeal remained pending, the 

superior court entered a criminal restitution order under Arizona Revised 

Statutes (“A.R.S.”) section 13-805(C)(1) that imposed interest on the unpaid 

balance of her payment obligations. McCartney timely appealed from the 

order, arguing that under Arizona Rule of Criminal Procedure (“Rule”) 

31.7(a)(2), the court may not enter a criminal restitution order imposing 

interest on fines and other obligations until a defendant’s appeal is 

concluded. McCartney contends that to the extent § 13-805(C)(1) provides 

otherwise, it violates principles of separation of powers.

¶2 We hold that the two provisions conflict only insofar as they 

relate to entry of an order imposing fines and related surcharges. 

Accordingly, we vacate the part of the criminal restitution order that 

includes McCartney’s drug offense fine and surcharge, along with any 

accrued interest associated with that fine and surcharge, and remand that 

portion of the order. We affirm the restitution order related to McCartney’s 

other unpaid monetary obligations and associated interest.

FACTS AND PROCEDURAL HISTORY

¶3 A jury convicted McCartney of possession or use of 

dangerous drugs (methamphetamine), a class four felony, and possession 

of drug paraphernalia, a class six felony. See A.R.S. §§ 13-3407(A)(1),

-3415(A).

¶4 The superior court suspended sentencing on both counts and 

placed McCartney on concurrent terms of supervised probation for two 

years. As a condition of her probation, the court ordered McCartney to pay: 

(1) a monthly probation service fee, see A.R.S. § 13-901(A); (2) a time 

payment fee, see A.R.S. § 12-116; (3) a drug offense fine with an applicable 

surcharge totaling $1,830, see A.R.S. §§ 13-3407(H), 12-116.01, -116.02, 16-

954(A); (4) a probation assessment, see A.R.S. §§ 12-114.01(A), -269; (5) 

criminal penalty assessments, see A.R.S. § 12-116.04(A); and (6) victim rights 

enforcement assessments, see A.R.S. § 12-116.09(A).

¶5 This court affirmed McCartney’s convictions and probation

on appeal. See State v. McCartney, 1 CA-CR 18-0724, 2020 WL 1027666 (Ariz. 
STATE v. MCCARTNEY

Opinion of the Court

3

App. Mar. 3, 2020) (mem. decision). The Arizona Supreme Court later 

denied McCartney’s petition for review, and the mandate in that appeal 

issued December 23, 2020.

¶6 While McCartney’s petition for review was pending,

however, she was discharged from probation. Upon discharge, McCartney 

still owed $1,284 in monthly probation service fees, the $1,830 drug offense 

fine and surcharge, $26 for the criminal penalty assessments, and $4 for the 

victim rights enforcement assessments—for a combined total of $3,144. The 

day McCartney was discharged, the court entered a criminal restitution 

order, effective October 22, 2020, on the unpaid balance of each monetary 

obligation, plus accruing statutory interest.

¶7 McCartney timely appealed the criminal restitution order. 

We have jurisdiction under the Arizona Constitution, article 6, section 9, 

and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(3).

ANALYSIS

¶8 McCartney argues A.R.S. § 13-805(C)(1) violates separation of 

powers1 because it conflicts with Rule 31.7(a)(2) and therefore intrudes on 

our supreme court’s rulemaking power.

¶9 We review de novo the interpretation of rules and statutes. See

Duff v. Lee, 250 Ariz. 135, 138, ¶ 11 (2020); State v. Hansen, 215 Ariz. 287, 289, 

¶ 6 (2007).

¶10 In Arizona, the legislature possesses those powers “not 

expressly prohibited or granted to another branch of the government.” 

State ex rel. Napolitano v. Brown, 194 Ariz. 340, 342, ¶ 5 (1999) (quoting Adams 

v. Bolin, 74 Ariz. 269, 283 (1952)). Our supreme court, however, has 

“exclusive constitutional authority to enact rules that govern procedural 

matters in all Arizona courts.” State ex rel. Romley v. Ballinger, 209 Ariz. 1, 

2, ¶ 6 (2004) (citing Ariz. Const. art. 6, § 5(5)). The supreme court cannot, 

however, enlarge or diminish substantive rights provided by statute. 

Marianne N. v. Dep’t of Child Safety, 243 Ariz. 53, 56, ¶ 14 (2017) (citing Daou 

v. Harris, 139 Ariz. 353, 357-58 (1984)). Particularly in addressing topics, like 

1 Under Article 3 of the Arizona Constitution, our state government’s 

three branches “shall be separate and distinct, and no one of such 

departments shall exercise the powers properly belonging to either of the 

others.”
STATE v. MCCARTNEY

Opinion of the Court

4

restitution, implicating criminal victims’ rights,2 the legislative and judicial 

branches of government both have some rulemaking authority. See Hansen, 

215 Ariz. at 290-91, ¶¶ 11-17; Brown, 194 Ariz. at 343, ¶ 11 (recognizing 

limitations on the legislature’s rulemaking power under the Victims’ Bill of 

Rights). However, “in the event of [an] irreconcilable conflict between a 

procedural statute and a rule, the rule prevails.” Seisinger v. Siebel, 220 Ariz. 

85, 89, ¶ 8 (2009).

¶11 Presented with an argument that a statute violates separation 

of powers, we begin by determining whether the statute and the rule can 

be harmonized. Id. at 91, ¶ 24; Hansen, 215 Ariz. at 289, ¶¶ 7-8. When 

possible, we construe rules and statutes in a way that harmonizes them and 

does not violate the constitution. See Readenour v. Marion Power Shovel, 149 

Ariz. 442, 445 (1986) (citing Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 

550, 554 (1981)); State v. Silva, 222 Ariz. 457, 460, ¶ 13 (App. 2009). Only if a 

conflict exists will we continue our analysis to determine whether a

challenged provision is substantive or procedural, the former being the 

legislature’s province and the latter the domain of the supreme court.

Seisinger, 220 Ariz. at 91, ¶ 24; Hansen, 215 Ariz. at 289, ¶ 9.

¶12 As we recently held in State v. Meinerz, 1 CA-CR 18-0557, 2019 

WL 2647469 (Ariz. App. June 27, 2019) (mem. decision),3 however, there is 

no express conflict between the two provisions. Because the two provisions 

do not irreconcilably conflict, A.R.S. § 13-805(C)(1) does not violate 

separation of powers.

¶13 As relevant here, § 13-805(C)(1) requires that “[a]t the time” a 

defendant completes his or her probation or sentence, the superior court 

shall enter “[a] criminal restitution order in favor of the state for the unpaid 

balance, if any, of any fines, costs, incarceration costs, fees, surcharges or 

assessments imposed.” Under § 13-805(E), enforcement of such an order 

by the state on its behalf “includes the collection of interest that accrues at 

2 See Ariz. Const. art. 2, § 2.1 (enumerating the Victims’ Bill of Rights).

3 Under Rule 111(c)(1)(C) of the Arizona Rules of the Supreme Court,

“[m]emorandum decisions of Arizona state courts are not precedential and 

such a decision may be cited only . . . for persuasive value, but only if it was 

issued on or after January 1, 2015; no opinion adequately addresses the 

issue before the court; and the citation is not to a depublished opinion or a 

depublished portion of an opinion.” Meinerz, which was issued after 

January 1, 2015, qualifies for citation under the conditions provided in Rule 

111(c)(1)(C).
STATE v. MCCARTNEY

Opinion of the Court

5

a rate of four percent a year.”4 Rule 31.7(a)(2) provides that “[a] sentence to 

pay a fine is stayed pending appeal.” By its plain language, Rule 31.7(a)(2) 

pertains solely to fines and makes no mention of costs, fees, surcharges, 

penalties, or assessments. See Meinerz, 1 CA-CR 18-0557, at *4, ¶ 18 n.4.

¶14 McCartney contends the statute and the rule conflict, but § 13-

805(C)(1) says nothing about entry of a criminal restitution order while a 

defendant’s appeal is pending. Compare Hansen, 215 Ariz. at 289, ¶¶ 7-8 

(concluding that where a statute and rule provided “patently contradictory 

instructions,” they could not be harmonized). Further, the statute imposes 

no deadline by which the superior court must issue a criminal restitution 

order, although it must do so “within a reasonable time” after the defendant 

completes his or her probation or sentence. State v. Pinto, 179 Ariz. 593, 596 

(App. 1994). McCartney argues, however, that the statute conflicts with 

Rule 31.7(a)(2) because it allows interest to begin to run on a criminal 

restitution order before the defendant’s appeal is concluded. We agree that 

a criminal restitution order for payment of a fine entered before the 

defendant’s appeal is complete would be inconsistent with Rule 31.7(a)(2). 

Accordingly, we may harmonize § 13-805(C)(1) and the rule by construing 

the statute to allow entry of a criminal restitution order for the payment of 

a fine only after the defendant’s appellate proceedings have concluded.

¶15 In Meinerz, we confronted a situation much like that found 

here—in which a defendant’s unpaid monetary sanctions were converted 

to a criminal restitution order while his appeal was pending—and 

concluded A.R.S. § 13-805(C)(1) and Rule 31.7(a)(2) could be harmonized.

See 1 CA-CR 18-0557, at *3-4, ¶¶ 16, 20. We further concluded that 

“[w]ithout striking down any portion of A.R.S. § 13-805, . . . Rule 31.7(a)(2) 

requires that entry of a [criminal restitution order] for payment of a fine 

must be stayed pending a defendant’s appeal.” Id. at *4, ¶ 21. We then 

vacated the defendant’s criminal restitution order for the drug offense fine 

and surcharge, along with accrued interest, and ordered the criminal 

restitution order stayed until the final mandate in the appeal was issued.5

Meinerz, 1 CA-CR 18-0557, at *4, ¶ 23. We also held that our decision was 

4 The interest rate may be greater in other instances. See A.R.S. §§ 13-

805(E), 44-1201.

5 In Meinerz, the criminal restitution order was issued during the 

pendency of the defendant’s appeal from his convictions and sentences, 

and the defendant filed an amended notice of appeal to incorporate issues 

arising from the criminal restitution order. See 1 CA-CR 18-0557, at *1, ¶ 3.
STATE v. MCCARTNEY

Opinion of the Court

6

not meant to modify the portion of the criminal restitution order relating to 

the monthly probation service fee. Id.

6

¶16 Construing § 13-805(C)(1) in this manner is consistent with 

the rule that “[o]ur rules of procedure and statutes should be harmonized 

wherever possible and read in conjunction with each other.” Phoenix of 

Hartford, Inc. v. Harmony Rests., Inc., 114 Ariz. 257, 258 (App. 1977). Because 

A.R.S. § 13-805(C)(1) and Rule 31.7(a)(2) can be harmonized, they do not 

irreconcilably conflict.

¶17 Our conclusion, therefore, requires us to vacate that portion 

of the superior court’s criminal restitution order for the drug offense fine 

and surcharge of $1,830, along with any associated accrued interest. 

Because the mandate has since issued on McCartney’s appeal of her 

convictions and sentences, we remand for the superior court to issue a 

criminal restitution order regarding the drug offense fine and surcharge 

and related interest.

¶18 The conclusion that § 13-805(C)(1) does not allow the superior 

court to enter a criminal restitution order for payment of a fine until the 

defendant’s appeal is complete does not apply to a criminal restitution 

order for payment of other unpaid monetary sanctions that are not fines. 

See Meinerz, 1 CA-CR 18-0557, at *4, ¶¶ 18 n.4, 23. Relying on State v. Dustin, 

247 Ariz. 389 (App. 2019), in which we held in part that a probation 

assessment is a fine, see id. at 391-92, ¶¶ 7-11, McCartney argues we should 

treat the other monetary assessments as fines and vacate the remainder of 

the court’s criminal restitution order. The superior court did not, however,

incorporate McCartney’s probation assessment or the time payment fee in 

the criminal restitution order; accordingly, her argument that these 

constitute a fine is a non sequitur. As for the criminal penalty assessments

and the victim rights enforcement assessments, McCartney provides no 

compelling rationale or supporting authority for why those obligations 

should be treated as “fines” under Rule 31.7(a)(2). Finally, as for the 

monthly probation service fees, McCartney concedes “[c]ases defining the 

term ‘fine’ within Arizona’s statutes suggest that the $65 monthly probation 

services fee would not be a fine, penalty or sanction because this fee is not 

imposed for the conviction itself, but for services provided through 

probation.” See, e.g., Dustin, 247 Ariz. at 391, ¶ 6 (discussing State v. 

6 The State argues, and McCartney ultimately concedes, that the 

superior court may not enter a criminal restitution order that delays accrual 

of interest pending completion of the defendant’s appeal. State v. Lopez, 231 

Ariz. 561, 562, ¶ 5 (App. 2013).
STATE v. MCCARTNEY

Opinion of the Court

7

Connolly, 216 Ariz. 132, 132-33, ¶ 3 (App. 2007)). This court has previously 

declined to treat such fees as fines, see Meinerz, 1 CA-CR 18-0557, at *4, ¶ 23, 

and we decline to do so now. Accordingly, our decision to vacate that 

portion of the superior court’s criminal restitution order involving fines 

does not affect any other portion of the order related to McCartney’s other 

unpaid monetary obligations and accrued interest.

CONCLUSION

¶19 We vacate the portion of the superior court’s criminal 

restitution order for the drug fine and surcharge of $1,830, along with any 

related accrued interest, and remand for the court to issue a criminal 

restitution order regarding the drug offense fine and surcharge and related 

interest. The portions of the criminal restitution order related to 

McCartney’s other unpaid monetary obligations and accruing interest are

affirmed and remain intact.