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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSEPH WEAVER, Petitioner,

v.

THE HONORABLE KERSTIN LEMAIRE, Judge of the SUPERIOR 

COURT OF THE STATE OF ARIZONA, in and for the County of 

MARICOPA, Respondent Judge,

STATE OF ARIZONA, Real Party in Interest.

No. 1 CA-SA 23-0204

Petition for Special Action from the Superior Court in Maricopa County

No. CR2023-106173-001

The Honorable Kerstin LeMaire, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Maricopa County Public Defender’s Office, Phoenix

By Zachary Stern

Counsel for Petitioner

Maricopa County Attorney’s Office, Phoenix

By Faith C. Klepper

Counsel for Real Party in Interest

FILED 05-09-2024
WEAVER v. HON. LEMAIRE/STATE

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which Judge 

Anni Hill Foster joined. Presiding Judge Jennifer B. Campbell dissented.

C A T T A N I, Judge:

¶1 Joseph Weaver seeks special action review of the superior 

court’s ruling granting the State’s motion to dismiss the prosecution against 

him without prejudice under Rule 16.4(a) of the Arizona Rules of Criminal 

Procedure. For reasons that follow, we accept jurisdiction but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In February 2023, the State charged Weaver with two counts 

of aggravated assault, two counts of resisting arrest, and one count of 

misdemeanor trespass. The State named Officer Hawes, a law enforcement 

officer, as the alleged victim in each felony count. Weaver pleaded not 

guilty to all charges. At the arraignment, the court calculated Weaver’s 

Rule 8 last day as July 24, 2023.

¶3 In mid-June 2023, after rejecting a plea offer, Weaver moved 

to continue the trial set for the next week; the State objected, presumably 

affirming its readiness for trial at that time. Over the State’s objection, the 

court granted the continuance and excluded time, calculating Weaver’s 

new last day as September 9, 2023.

¶4 In mid-July 2023, the State learned that Officer Hawes had 

been deployed abroad by the U.S. military as of around March 2023, with 

an anticipated return no sooner than February 2024. The State extended a 

new plea offer, noting that should Weaver reject the plea, the case would

be dismissed and refiled once Officer Hawes returned, and that if the case 

were to be dismissed and refiled, the State would be unlikely to extend a 

new plea offer. Weaver rejected the offer.

¶5 The State then moved to dismiss the prosecution without 

prejudice, noting its inability to proceed to trial without Officer Hawes and 

summarily declaring that “[t]his Motion is not for the purpose of avoiding 

Rule 8.” Weaver opposed, asserting that the State’s request was precisely 

to avoid Rule 8 given the State’s inability to proceed with trial before Rule 

8 time would expire. He requested that the court either dismiss the case 
WEAVER v. HON. LEMAIRE/STATE

Decision of the Court

3

with prejudice or deny dismissal and affirm the upcoming trial date. The 

court ordered dismissal without prejudice.

¶6 Weaver filed a special action challenging that dismissal. This 

court accepted jurisdiction and granted limited relief, directing the superior 

court to state on the record its reasons for granting dismissal under Rule 

16.4(a), including findings as to existence of good cause and non-avoidance 

of Rule 8. See Ariz. R. Crim. P. 16.4(c). The superior court then entered 

findings reflecting that (1) the alleged victim was abroad on mandatory 

military deployment with no control over when he could return, (2) the 

State could not proceed to trial without the alleged victim, and (3) the delay 

until the alleged victim’s anticipated return in February 2024 would not 

create significant hardship for Weaver, who was not in custody and whose 

bond had been exonerated. Although noting the tension between Weaver’s 

right to a speedy trial and the alleged victim’s right to participate at trial, 

the court found good cause for dismissal and expressly found that the 

dismissal was not sought to avoid Rule 8 time limits.

¶7 Weaver sought emergency relief from the superior court’s 

updated ruling, which we ordered be treated as a special action petition. 

We again accept jurisdiction because Weaver has no adequate remedy by 

appeal from an order of dismissal without prejudice. See A.R.S. § 13-4033; 

Ariz. R.P. Spec. Act. 1(a); State v. Paris-Sheldon, 214 Ariz. 500, 508, ¶ 23 (App. 

2007).

DISCUSSION

¶8 Weaver asserts that the superior court incorrectly determined 

the State’s motion to dismiss was not to avoid Rule 8 time limits and that 

the court should have denied dismissal and proceeded with trial. We 

review the court’s dismissal ruling for an abuse of discretion. State v. Leota,

256 Ariz. 320, 324, ¶ 16 (App. 2023).

¶9 Rule 16.4 governs pretrial dismissal of prosecutions. Relevant 

here, subsection (a) authorizes—but restricts—dismissal on the State’s 

motion. See Ariz. R. Crim. P. 16.4(a); Earl v. Garcia, 234 Ariz. 577, 577, ¶ 1 

(App. 2014). This rule permits the court, on the State’s motion, to dismiss a 

prosecution without prejudice for “good cause” and upon finding that the 

dismissal is “not to avoid Rule 8 time limits.” Ariz. R. Crim. P. 16.4(a).1 

1 In full, Rule 16.4(a) provides: “On the State’s motion and for good 

cause, the court may order a prosecution dismissed without prejudice if it 

finds that the dismissal is not to avoid Rule 8 time limits.”
WEAVER v. HON. LEMAIRE/STATE

Decision of the Court

4

Rule 8 time limits effectuate a defendant’s speedy trial rights by codifying 

stricter limits than required under constitutional speedy-trial provisions. 

Ariz. R. Crim. P. 8.2; State ex rel. Berger v. Superior Court, 111 Ariz. 335, 339 

(1974); see also U.S. Const. amend. VI; Ariz. Const. art. 2, § 24. Neither party 

disputes the superior court’s calculation of Weaver’s Rule 8 last day as 

September 9, 2023. See Ariz. R. Crim. P. 8.2(a); see also Ariz. R. Crim. P. 8.4 

(excluded periods), 8.5(b) (continuance for extraordinary circumstances in 

the interests of justice).

¶10 Here, the State moved to dismiss less than two months before 

the last day because Officer Hawes was unavailable due to his military 

deployment abroad. Weaver does not meaningfully dispute that the 

alleged victim’s unavoidable absence supports the court’s finding of “good 

cause” for dismissal, and we likewise take no issue with the finding that 

Officer Hawes’s military deployment satisfied Rule 16.4(a)’s “good cause” 

requirement.

¶11 Weaver asserts, however, that the State’s dismissal request 

was for the purpose of avoiding Rule 8 time limits, rendering the Rule 

16.4(a) dismissal without prejudice inappropriate. He argues, with some 

intuitive force, that the State’s professed inability to go to trial within Rule 

8 time limits (given Officer Hawes’s absence) coupled with its stated intent 

to refile charges months after Rule 8 time would have expired (upon Officer 

Hawes’s return) means the dismissal request was necessarily to avoid a trial 

within Rule 8 time.

¶12 But Rule 16.4(a)’s focus on “avoid[ing]” Rule 8 puts the 

emphasis on the State’s conduct, not simply the passage of time.2 Thus, we 

conclude that Rule 16.4(a)’s inquiry into whether the State seeks dismissal 

to “avoid” Rule 8 time limits must center on whether the State engaged in 

deleterious conduct of some sort, as by unreasonably delaying the 

proceedings or failing to take actions that could have facilitated trial within 

Rule 8 limits.

¶13 Here, the State (like Officer Hawes himself) had no control 

over the military’s decision to deploy Officer Hawes abroad or the duration 

of the deployment. And because the charges against Weaver had been filed 

before Officer Hawes was deployed, there was nothing the State could have 

done differently or sooner to make Officer Hawes available for trial before 

2 Indeed, because refiling charges restarts the Rule 8 clock, see State v. 

Mendoza, 170 Ariz. 184, 187 (1992), a purely passage-of-time approach 

would be fatal to nearly all Rule 16.4(a) dismissal requests.
WEAVER v. HON. LEMAIRE/STATE

Decision of the Court

5

Weaver’s Rule 8 last day. The request for dismissal was thus based on, as 

the superior court found, the alleged victim’s unavoidable unavailability, 

not because of any deleterious conduct by the State seeking to “avoid” Rule 

8’s strictures.

¶14 To be sure, there may be cases in which the defendant can 

show (or support an inference of) a sinister motivation on the part of the 

State—perhaps, for example, if the State chose to file charges despite 

knowing that the alleged victim would be unavoidably absent throughout 

Rule 8 time. And there may be cases in which the State arguably could have 

done something different to enable trial within Rule 8 limits. Cf. State v.

Vasko, 193 Ariz. 142, 144–45, ¶¶ 10–11 (App. 1998) (noting that 

“unavailability of a key witness may constitute an extraordinary 

circumstance” justifying a continuance under Rule 8.5(b), but not if the 

“scheduling conflict can be foreseen and avoided”). But this is not that case.

CONCLUSION

¶15 The superior court acted well within its discretion by finding 

the State’s motion was not to avoid Rule 8 time limits and ordering 

dismissal without prejudice under Rule 16.4(a).3 We thus deny relief.

3 We note that Weaver alleged the State’s motion to dismiss was 

designed to secure a tactical advantage (availability of a critical witness) 

and to harass him (threatening to withhold any plea offer “if the case . . . 

has to be refiled”), and that the action caused him prejudice (anxiety from 

pretrial incarceration and the threat of future prosecution). These 

principles would be relevant to whether dismissal for a Rule 8 violation

should be with or without prejudice. See Leota, 256 Ariz. at 325, ¶¶ 23–24.

But see id. at 326, ¶¶ 26–27 (noting impairment of an ability to defend 

against the charges is cognizable prejudice, not just anxiety or emotional 

stress alone). But here there was no Rule 8 violation, and the analysis 

applicable to dismissal under Rule 16.4(a) is, as explained above, markedly 

different. We note, however, that if the State opts to refile charges, these 

principles would likewise be relevant to a challenge to the new charges 

based on preindictment delay, particularly if Weaver can present evidence 

(should it exist) of how the delay has hampered his ability to defend against 

the charges. See State v. Broughton, 156 Ariz. 394, 397 (1988).
WEAVER v. HON. LEMAIRE/STATE

Campbell, J., dissenting

6

C A M P B E L L, J., dissenting:

¶16 I respectfully dissent. The Arizona Rules of Criminal 

Procedure were adopted to ensure a just and speedy resolution of criminal 

proceedings. Ariz. R. Crim. P. 1.2. Courts, parties, and crime victims should 

construe these rules to secure simplicity in procedure, fairness in 

administration, the elimination of unnecessary delay and expense, and to 

protect the fundamental rights of the accused individual while preserving 

the public welfare. It is unclear how, as occurred in this case, the State has 

been allowed to utilize Rule 16.4 as a strategic tool to pressure defendants 

into taking plea agreements and to circumvent the limitations of Rule 8. See

State v. Smith, 112 Ariz. 321, 323 (1975) (each constitutional rule of criminal 

procedure has “a distinct function, an individual history and precedent, 

and a separate impact on the administration of justice”).

I. Rule 8

¶17 Before an arraignment, all decisions about a case are in the 

control of the State. The State decides what to charge and when to bring 

those charges, subject only to the constraints of the applicable statutes of 

limitation. See U.S. v. Lovasco, 431 U.S. 783, 789, 791–92 (1977). Once the State 

files charges, the speedy trial clock begins. Under Rule 8, a defendant has a 

right to be tried, if in custody within 150 days, and if out of custody within 

180 days, from the date he is arraigned on charges in a non-capital, noncomplex case. Ariz. R. Crim. P. 8.2(a). 

¶18 Rule 8 was adopted to codify the defendant’s right to a speedy 

trial under the 8th Amendment to the U.S. Constitution in Arizona’s 

procedural rules. Rule 8 is more restrictive than the constitutional right to a 

speedy trial. State v. Spreitz, 190 Ariz. 129, 136 (1997). Yet there are 

procedures set forth in Rule 8 that allow for the suspension of speedy trial

time limits in extraordinary circumstances—namely, motions to continue. 

Ariz. R. Crim. P. 8.5(b). Motions to continue beyond the speedy trial date 

are permissible “on a showing that extraordinary circumstances exist, and 

the delay is indispensable to the interests of justice, and only for so long as 

is necessary to serve the interests of justice.” Ariz. R. Crim. P. 8.5(b).

II. Rule 16

¶19 Rule 16 is a procedural mechanism employed by a party to 

dispose of a criminal case after an arraignment, but before a conviction or 

acquittal. For the dismissal to be without prejudice, the State must 

demonstrate both “good cause” and that “the dismissal is not to avoid Rule 

8 time limits.” Ariz. R. Crim. P. 16.4(a). If the State makes both showings, 
WEAVER v. HON. LEMAIRE/STATE

Campbell, J., dissenting

7

the court may grant the motion, allowing the State the opportunity to refile 

the charges later. This dismissal restarts the Rule 8 clock if the State chooses 

to re-indict the defendant. State v. Mendoza, 170 Ariz. 184, 187 (1992).

¶20 As such, Rule 16.4(a) requires the court to engage in an 

inquiry into the motivation for the dismissal, and a dismissal without 

prejudice should not be automatically granted. Justice Douglas highlighted 

in a concurring opinion that “[t]he duty which the Sixth Amendment places 

on Government officials to proceed expeditiously with criminal 

prosecutions would have little meaning if those officials could determine 

when that duty was to commence.” U.S. v. Marion, 404 U.S. 307, 331–32 

(1971) (Douglas, J., concurring). Because a dismissal without prejudice 

restarts the Rule 8 clock, Mendoza, 170 Ariz. at 187, it is crucial that we hold 

the State accountable to Rule 16.4(a)’s requirements. 

III. Continuance Versus Dismissal

¶21 There will be times when the State needs to avert the time 

limits imposed by Rule 8 for legitimate purposes. The question then 

becomes which rule provides that mechanism while still protecting the 

accused’s right to a speedy trial. The difference between a continuance 

under Rule 8.5(b) and a dismissal without prejudice under Rule 16.4(a) is 

meaningful. With a continuance, the defendant retains his right to assert 

speedy trial limitations, and the court retains oversight of that right. Once 

any “extraordinary circumstances” justifying a continuance have been 

remedied—for example, once a key witness becomes available—trial will 

be scheduled within the remaining timeframe. See State v. Vasko, 193 Ariz. 

142, 144, ¶ 11 (App. 1998).

¶22 By contrast, when a case is dismissed without prejudice, the 

State regains complete control of what constitutes a speedy trial by resetting 

the Rule 8 clock to zero. Mendoza, 170 Ariz. at 187. A dismissal without 

prejudice places the State in its original pre-indictment position, while the 

defendant has already undergone an arraignment, faced public accusation, 

and, in some cases, been incarcerated. In a dissenting opinion, Justice 

Marshall wrote that it is “entirely unrealistic” to suggest that a defendant 

whose case is dismissed is placed in the same constitutional position as he 

was in before he was indicted. U.S. v. MacDonald, 456 U.S. 1, 17–19, 24 (1982) 

(Marshall, J., dissenting). 

¶23 Unfortunately, our case law suggests that courts frequently 

grant motions to dismiss without prejudice without engaging in the proper 

Rule 8 inquiry. This routine practice simply provides the State a tool to 
WEAVER v. HON. LEMAIRE/STATE

Campbell, J., dissenting

8

circumvent Rule 8 time limits. See Cornell v. Superior Court (State), 160 Ariz. 

1, 3–4 (1989) (State “clearly, grievously, and repeatedly violated Rule 8” by 

filing two motions to dismiss without prejudice to “restart the clock”—both 

granted); State v. Ordaz, 2 CA-CR 2010-0339, 2011 WL 6916531 at *3, ¶ 8 

(Ariz. App. Dec. 28, 2011) (mem. decision) (State motion to dismiss without 

prejudice because key witness not served and not present on first day of 

trial—granted); Boltz v. Gaines, 1 CA-CV 06-0712, 2007 WL 5462294 at *2, 

¶¶ 8–9 (Ariz. App. Oct. 4, 2007) (mem. decision) (State motion to dismiss 

without prejudice on day of trial because testifying witness going on 

vacation the next day—granted). 

¶24 Here, the court seems to have engaged in an “extraordinary 

circumstances” balancing test inquiry pursuant to Rule 8.5(b) rather than 

the two-prong analysis required for a motion to dismiss by Rule 16.4(a). Cf.

Vasko, 193 Ariz. at 144–45, ¶¶ 10–11 (witness unavailability due to Army 

Reserve training constituted “extraordinary circumstances” justifying a 

continuance). The court should have evaluated whether the State was 

violating the Rule 16.4 requirements for dismissals without prejudice, not 

just whether good cause existed for the dismissal. Ariz. R. Crim. P. 16.4(a). 

¶25 I take no issue with the court’s finding that the victim’s 

deployment satisfied the “good cause” requirement of Rule 16.4(a). See State 

v. Gilbert, 172 Ariz. 402, 404 (App. 1991) (dismissals reviewed for abuse of 

discretion). But the court did not engage in a meaningful inquiry about 

whether the dismissal was sought to avoid Rule 8 time limits. In failing to 

do so, it rendered the second prong of Rule 16.4(a) meaningless. Moreover, 

the record suggests the State’s purpose was to avoid Rule 8 time limits. 

Unlike the circumstances in Vasko, it appears the State failed to 

communicate with the victim, improperly extended plea agreements

without the victim’s input, learned the victim was deployed, and then 

attempted to erase its mistakes by dismissing the case and starting over 

once the victim could participate. Where there is nothing ambiguous about 

a rule’s language, we must apply it as written. Bilke v. State, 206 Ariz. 462, 

464, ¶ 11 (2003). 

¶26 The court’s decision to grant the State’s motion to dismiss 

absent a finding that the dismissal was not to avoid Rule 8 time limits

amounted to error. Instead, had the court found “extraordinary 

circumstances,” it could have granted a continuance under Rule 8.5(b). A 

continuance would have both preserved Weaver’s speedy trial rights and 

accommodated the victim’s right to be present for trial. See Vasko, 193 Ariz. 

at 144, ¶ 11 (witness unavailability may constitute “extraordinary 

circumstances” justifying a continuance, though continuance may not be 
WEAVER v. HON. LEMAIRE/STATE

Campbell, J., dissenting

9

warranted if unavailability was foreseeable or avoidable). For these 

reasons, I dissent.