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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

JIMMY JOSEPH KALETA, Petitioner,

v.

THE HONORABLE JERRY BERNSTEIN, Commissioner of the SUPERIOR 

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

MARICOPA, Respondent Commissioner,

STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa 

County Attorney, Real Party in Interest.

No. 1 CA-SA 16-0065 

Petition for Special Action from the Superior Court in Maricopa County 

No. CR2009-155110-001 DT

The Honorable Jerry Bernstein, Commissioner 

JURISDICTION ACCEPTED; RELIEF DENIED 

COUNSEL 

Office of the Public Defender, Phoenix 

By Angela L. Walker 

Counsel for Petitioner 

Maricopa County Attorney’s Office, Phoenix 

By Jeffrey R. Duvendack 

Counsel for Real Party in Interest
KALETA v. HON. BERNSTEIN/STATE 

Decision of the Court 

2

MEMORANDUM DECISION 

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

Presiding Judge Peter B. Swann and Judge Samuel A. Thumma joined. 

W I N T H R O P, Judge: 

¶1 Jimmy Joseph Kaleta (“Petitioner”) seeks special action relief 

from an order of Respondent Commissioner Jerry Bernstein (“Respondent 

Commissioner”) reinstating 500 community restitution hours as a condition 

of probation. For the following reasons, we accept special action 

jurisdiction but deny relief. 

FACTS AND PROCEDURAL HISTORY 

¶2 In CR2009-155110-001 DT (“the 2009 case”), Petitioner pled 

guilty to two felonies: fraudulent schemes and artifices and forgery, 

agreeing to a prison term for forgery, and probation for fraudulent schemes 

and artifices. In 2010, the court sentenced Petitioner to prison for the 

forgery offense, to be followed by seven years’ probation for the fraudulent 

schemes and artifices offense. As a condition of probation, Petitioner was 

ordered to complete 500 hours of community restitution as directed by the 

Adult Probation Department (“APD”).

¶3 In February 2012, Petitioner was released from prison, and his 

probation term began. Petitioner then was indicted in CR2013-003602-001 

(“the 2013 case”) for offenses that predated the offenses in the 2009 case. In 

April 2014, after Petitioner entered a plea in the 2013 case, the court 

sentenced him to 1.5 years’ imprisonment. The court suspended probation 

in the 2009 case until his discharge from prison, modified Petitioner’s 

probation grant in the 2009 case from seven to three years, and—mistakenly 

assuming Petitioner had completed his 500 hours of community service—

left blank the box beside the condition imposing community restitution 

hours.1

¶4 In May 2015, Petitioner was released from prison, and his 

probation in the 2009 case resumed. In July 2015, the APD submitted a 

 

1 Petitioner and his counsel had the opportunity at the hearing to 

correct the court’s misunderstanding, but neither did so.
KALETA v. HON. BERNSTEIN/STATE 

Decision of the Court 

3

memorandum to the court advising that Petitioner had been ordered to 

complete 500 hours of community restitution when he was placed on 

probation in 2010, and asking for a nunc pro tunc order to include that 

requirement as a condition of Petitioner’s probation. In a July 2015 order, 

Respondent Commissioner directed the APD to “Take Whatever Action 

Deemed Appropriate,” allowing the APD to require the 500 hours of 

community restitution. 

¶5 In November 2015, Petitioner moved to vacate the July 2015 

order, arguing the order improperly modified his probation without due 

process, and improperly delegated court authority to the APD. After full 

briefing and oral argument, Respondent Commissioner denied Petitioner’s 

motion and reinstated the original 500 hours of community restitution as a 

condition of probation in the 2009 case. Respondent Commissioner delayed 

imposition of the order until April 15, 2016, and Petitioner now petitions 

this court for relief from that order. 

JURISDICTION 

¶6 This court may exercise special action jurisdiction when there 

is no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P. 

Spec. Act. 1(a); see also Burton v. Superior Court, 27 Ariz. App. 797, 798, 558 

P.2d 992, 993 (1977) (accepting jurisdiction and holding the trial court acted 

in excess of its jurisdiction by modifying probation to include restitution 

not previously ordered because “[r]estitution or non-restitution was 

decided at the time of sentencing and nothing new—no new event—was 

[later] alleged or established”). Accordingly, in exercising our discretion, 

we accept jurisdiction of the petition. 

ANALYSIS 

¶7 Petitioner argues Respondent Commissioner lacked 

jurisdiction, exceeded his legal authority, and abused his discretion by 

reinstating the court’s original order requiring Petitioner to complete 500 

hours of community restitution. To grant relief, we must find the 

respondent judicial officer abused his discretion or exceeded his 

jurisdiction or legal authority. Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 

253-54, ¶ 10, 63 P.3d 282, 284-85 (2003) (citing Ariz. R.P. Spec. Act. 3); State 

v. Dean, 226 Ariz. 47, 50, ¶ 7, 243 P.3d 1029, 1032 (App. 2010) (reviewing for 

an abuse of discretion a trial court’s modification of probation). We defer 

to the trial court’s factual findings, provided they are supported by 

reasonable evidence. Twin City Fire, 204 Ariz. at 254, ¶ 10, 63 P.3d at 285.
KALETA v. HON. BERNSTEIN/STATE 

Decision of the Court 

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¶8 Citing State v. Dawson, 164 Ariz. 278, 286, 792 P.2d 741, 749 

(1990), Petitioner suggests the State was required to file an appeal in order 

to prevent the purported modification to his community service hours from 

becoming a “final” sentence. Probation, however, is not a sentence. State 

v. Muldoon, 159 Ariz. 295, 298, 767 P.2d 16, 19 (1988). Moreover, 

notwithstanding Petitioner’s suggestion, nothing required the State to seek 

special action relief. Even assuming the State could have appealed from the 

April 2014 disposition, Petitioner has not shown Respondent 

Commissioner lacked jurisdiction to modify, or clarify, Petitioner’s 

probation. 

¶9 “A probationer, probation officer, the State, or other person 

designated by the court, at any time prior to absolute discharge, may 

request the court to modify or clarify any condition or regulation.” Ariz. R. 

Crim. P. 27.3. State v. Contreras recognized: 

 When the trial court suspends sentence and orders 

probation, the sentence is not final. The court retains 

jurisdiction over the probationary terms and the probationer 

until the term of probation is successfully completed or until 

it is revoked and a prison sentence ordered. As the defendant 

knew, A.R.S. section 13-901(C) provides that the trial court 

may, in its discretion, modify or add to the conditions of 

probation “at any time prior to the expiration or termination 

of the period of probation,” whether or not probation is 

revoked. In light of this clear statutory statement to the 

contrary, the defendant’s argument that his initial [or any 

later-modified] probationary terms constituted a judgment 

which could not be disturbed fails. 

180 Ariz. 450, 453-54, 885 P.2d 138, 141-42 (App. 1994) (internal citations 

omitted).

¶10 When reviewing the APD’s memo, Respondent 

Commissioner possessed both jurisdiction and authority to grant the 

request. See id. By reinstating the original requirement that Petitioner 

complete 500 hours of community restitution, Respondent Commissioner 

simply clarified an omission based on an erroneous assumption at the April 

2014 disposition. Contrary to Petitioner’s claim, this clarification is not an 
KALETA v. HON. BERNSTEIN/STATE 

Decision of the Court 

5

“additional burden,” but merely an affirmation of a probation term that 

was never expressly deleted or modified by the court.2

¶11 Relying primarily on Burton v. Superior Court, 27 Ariz. App. 

797, 558 P.2d 992 (1977), Petitioner nonetheless maintains Respondent 

Commissioner was required to find he violated a condition of his probation 

before modifying the terms or conditions of that probation. See id. at 800, 

558 P.2d at 995 (“Where sentence is suspended and the defendant is placed 

on probation on certain specific terms and conditions, those terms and 

conditions are fixed pending an event which constitutes a reasonable basis 

to change them.”). Burton, however, does not apply here. Unlike Burton, 

whose probationary period was extended beyond the original two-year 

probationary period, see id. at 798-99, 558 P.2d at 993-94, Petitioner’s term 

of probation was reduced in duration. Moreover, Petitioner has had no 

additional burdens imposed upon him from the original terms and 

conditions in the 2009 case, as happened in Burton, where restitution was 

added to the original terms and conditions without a reasonable basis for 

imposing the new burden. See id. at 799-800, 558 P.2d at 994-95. In this case, 

rather than impose increased terms of probation, Respondent 

Commissioner simply confirmed the previous order regarding community 

restitution, which had never been expressly deleted. Accordingly, Burton

is distinguishable and this case is more akin to Contreras, a more recent 

decision of this court that is instructive. 

¶12 In Contreras, the defendant entered a plea agreement and 

stipulated to pay restitution in an amount “not to exceed $1000.00.” 180 

Ariz. at 452, 885 P.2d at 140. The trial court imposed a two-year term of 

probation, but did not order restitution payments to the victims at that same 

time. Id. Two months later, the APD petitioned to modify the conditions 

of probation to add a restitution requirement, and after a hearing, the court 

did so. Id. The issue on appeal was “whether a trial court may modify a 

defendant’s conditions of probation to impose restitution after probation 

has been ordered and in the absence of any grounds supporting its 

 

2 Petitioner relies on Black v. Industrial Commission, 83 Ariz. 121, 125, 

317 P.2d 553, 555-56 (1957), overruled on other grounds by Estate of Hash v. 

Henderson, 109 Ariz. 174, 177, 507 P.2d 99, 102 (1973), to argue that “a nunc 

pro tunc order is [per se] inappropriate and an abuse of discretion.” The 

portion of that case cited by Petitioner simply states that a nunc pro tunc 

order is designed to make the record correspond with the facts and cannot 

cause an order or judgment never previously made or rendered to be placed 

upon the record of the court. Contrary to Petitioner’s premise, however, 

nothing was “added” to his original terms of probation.
KALETA v. HON. BERNSTEIN/STATE 

Decision of the Court 

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revocation.” Id. at 451-52, 885 P.2d at 139-40. Contreras argued, just as 

Petitioner does here, “that the court lacked jurisdiction to modify the 

probationary terms absent some showing of grounds to revoke probation 

or other changed circumstances.” Id. at 452, 885 P.2d at 140. Contreras also 

argued, as Petitioner does here, that even if jurisdiction existed, “the trial 

court abused its discretion in allowing the modification because it imposed 

a greater burden upon him than the original terms of probation without a 

reasonable basis.” Id. at 453, 885 P.2d at 141. Contreras relied on Burton in 

support of his claims, see id., just as Petitioner does in his petition. 

¶13 Before noting more recent cases had “called the holding of 

Burton into question,” Contreras distinguished Burton, noting it was unclear 

whether Burton had agreed to pay restitution as part of his plea agreement 

and that Burton’s term of probation was extended, whereas Contreras’s

term of probation remained unchanged. Id. (citing Burton, 27 Ariz. App. at 

800, 558 P.2d at 995). These same distinguishing features are present here. 

When placed on probation, Contreras had notice of his obligation to pay 

restitution, see id. at 454, 885 P.2d at 142; similarly, Petitioner had notice of 

his community restitution obligation when he was placed on probation in 

the 2009 case, and the trial court has continuing jurisdiction to ensure 

Petitioner complies with his obligation.3

¶14 Petitioner also argues his due process rights were violated by 

the court’s failure to set a hearing before the July 2015 order. Even were we 

to conclude the failure to set a hearing before the July 2015 order was a 

denial of due process—and we do not conclude so—any such issue was 

mooted by the subsequent motion practice, oral argument, and ruling by 

the court in December 2015. 

 

3 Also, as for the court’s form order allowing the APD to “Take 

Whatever Action Deemed Appropriate,” Petitioner provides no direct 

authority for his claim that particular order is a prohibited delegation of the 

court’s authority, and we conclude that on this record, it is not. The order 

simply clarified or confirmed a term of Petitioner’s probation. See also 

generally Ariz. R. Crim. P. 27.1. 
KALETA v. HON. BERNSTEIN/STATE 

Decision of the Court 

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CONCLUSION 

¶15 For the foregoing reasons, we accept jurisdiction of 

Petitioner’s special action petition but deny relief.