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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

DUSTIN TUTTLE, Petitioner.

No. 1 CA-CR 21-0178 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2015-154909-001

The Honorable Bradley H. Astrowsky, Judge

REVIEW GRANTED; RELIEF GRANTED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Robert E. Prather

Counsel for Respondent

Dustin Tuttle, Kingman

Petitioner

FILED 11-8-2022
STATE v. TUTTLE

Decision of the Court

2

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which 

Presiding Judge Peter B. Swann and Judge Paul J. McMurdie joined.

W E I N Z W E I G, Judge:

¶1 Dustin Robert Tuttle petitions this court to review the 

summary dismissal of his successive notice for post-conviction relief 

(“PCR”) under Arizona Rule of Criminal Procedure 33.1.

1 The superior 

court dismissed Tuttle’s second notice as untimely, explaining it had 

dismissed Tuttle’s first PCR over a year prior.

¶2 “We review the court’s summary denial of post-conviction 

relief for an abuse of discretion.” State v. Martinez, 226 Ariz. 464, 466, ¶ 6 

(App. 2011). “A defendant may raise a claim of ineffective assistance of 

Rule 33 counsel in a successive Rule 33 proceeding if the defendant files a 

notice no later than 30 days after the trial court’s final order in the first postconviction proceeding, or, if the defendant seeks appellate review of that order,

no later than 30 days after the appellate court issues its mandate in that 

proceeding.” Ariz. R. Crim. P. 33.4(b)(3)(C) (emphasis added); see also State v. 

Pruett, 185 Ariz. 128, 131 (App. 1995) (“[A] second notice of post-conviction 

relief for a claim of ineffectiveness of previous Rule 32 counsel is timely if 

filed within 30 days of the order and mandate affirming the trial court’s 

denial of the petitioner’s first petition for post-conviction relief.”).

¶3 We agree with Tuttle that the superior court erred by 

dismissing his second PCR notice on timeliness grounds. This court’s 

mandate denying Tuttle relief in his first PCR proceeding was issued on 

April 7, 2021. State v. Tuttle, 2 CA-CR 2020-0185-PR, 2020 WL 6488096 (Ariz. 

1 Effective January 1, 2020, the Arizona Supreme Court amended the

post-conviction relief rules. The rules relating to defendants who plead

guilty are now codified in Rule 33. The amended rules apply to all cases

pending on the effective date unless a court determines that “applying the

rule or amendment would be infeasible or work an injustice.” Ariz. Sup. 

Ct. Order R-19-0012 (Aug. 29, 2019). Because there were no substantive 

changes to the respective rules related to this opinion, we apply and cite the 

current rules.
STATE v. TUTTLE

Decision of the Court

3

App. Nov. 3, 2020) (mem. decision). Tuttle therefore had until May 7, 2021 

to file his second PCR notice challenging the effectiveness of counsel in his 

first PCR proceeding, and he did so on December 2, 2020. Accordingly, 

Tuttle timely—if prematurely—filed his second PCR notice, and the 

superior court abused its discretion in concluding otherwise. See State v. 

Burgett, 226 Ariz. 85, 86, ¶ 1 (App. 2010).

¶4 We grant relief and remand to the superior court for further 

proceedings consistent with this decision. We take no position as to the 

merits of the IAC claim Tuttle referenced in his notice.