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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

JAMES MICHAEL HARRIES, Appellant.

No. 1 CA-CR 18-0520

Appeal from the Superior Court in Maricopa County

No. CR2001-014438

The Honorable Erin Otis, Judge Retired

REVERSED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Amanda M. Parker

Counsel for Appellee

Rosenstein Law Group, Scottsdale

By Craig J. Rosenstein, Steven G. Scharboneau

Counsel for Appellant

FILED 6-22-2021
STATE v. HARRIES

Decision of the Court

2

MEMORANDUM DECISION

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

Presiding Judge Lawrence F. Winthrop and Chief Judge Peter B. Swann 

joined.

C A T T A N I, Judge:

¶1 James Michael Harries appeals from the superior court’s 

decision vacating its prior ruling designating his class 6 undesignated 

felony conviction as a misdemeanor. For reasons that follow, we hold that 

the superior court improperly granted the State’s request for relief under 

Rule 60 of the Arizona Rules of Civil Procedure, which no longer provides 

a basis for relief in criminal proceedings. Accordingly, we reverse and 

reinstate the prior ruling designating Harries’s 2001 conviction a class 1 

misdemeanor.

FACTS AND PROCEDURAL BACKGROUND

¶2 In late 2001, Harries pleaded guilty to solicitation to possess 

dangerous drugs, a class 6 undesignated felony. The superior court 

suspended sentence and imposed three years’ probation. Harries was 

discharged from probation a few years after that, and he later satisfied his 

related monetary obligations.

¶3 In 2016, the State filed a new charge—misconduct involving 

weapons—against Harries. But the State subsequently filed a motion to 

dismiss that charge without prejudice, and the superior court granted the 

motion at the end of August 2017.

¶4 Harries then immediately filed (and mailed to the Maricopa 

County Attorney’s Office) an application to designate his 2001 offense a 

misdemeanor. In his application, Harries noted that he had completed 

probation, and he disclosed a 2002 federal firearms-related conviction as 

well as the then-dismissed 2016 misconduct-involving-weapons charge. 

The State did not file a response, and in September 2017, superior court 

granted Harries’s request and designated the 2001 offense a class 1 

misdemeanor. See A.R.S. § 13-604(A).

¶5 Almost three months later, the State filed a motion to 

reconsider the misdemeanor designation. The State asserted that Harries
STATE v. HARRIES

Decision of the Court

3

had failed to inform the court that he had been re-indicted for misconduct

involving weapons on August 30, 2017—the day before he filed the

application. Harries opposed, noting that when he filed the application, he 

did not know (and the State had not notified him) that the misconductinvolving-weapons charge had been refiled. Harries further argued that 

the State’s motion was untimely and an improper attempt to overcome a

final ruling after the State had failed to respond to the original application. 

In February 2018, the superior court granted the State’s motion and vacated 

its misdemeanor-designation ruling, leaving the 2001 offense an 

undesignated felony.

¶6 Harries then filed a motion to strike or request for rehearing

of the February 2018 ruling, seeking reinstatement of the original 

misdemeanor-designation ruling. Harries urged that his “re-felonization”

violated due process. After briefing and oral argument, the superior court 

reaffirmed its February ruling. The court reasoned that it retained inherent 

authority to vacate or modify its earlier ruling and explained that “[h]ad 

the Court known at the time of ruling that [Harries] had a pending felony 

case[,] the Court would have never granted the motion to designate the 

offense a misdemeanor in the first place.”

¶7 Harries was granted leave to pursue a delayed appeal. See

State v. Harries, No. 2 CA-CR 2020-0142-PR, 2020 WL 5566139, at *3, ¶ 11 

(Ariz. App. Sept. 17, 2020) (mem. decision); see also Ariz. R. Crim. P. 32.1(f). 

We have jurisdiction to consider Harries’s challenge to the superior court’s 

order vacating the misdemeanor designation, an order affecting his

substantial rights. See A.R.S. § 13-4033(A)(3); cf. State v. Delgarito, 189 Ariz. 

58, 59 (App. 1997).

DISCUSSION

¶8 Harries contends the superior court lacked authority to 

unwind its September 2017 ruling designating his 2001 offense a 

misdemeanor. Under the circumstances presented here, we agree.

¶9 The superior court relied on Condos v. Superior Court, 29 Ariz. 

186 (1925), and its progeny for the proposition that under the framework of 

Civil Rule 60, the court in criminal cases has inherent authority to modify 

or vacate its own orders or judgments within six months after ruling. 

Subject to exceptions not implicated here, Condos allowed the court to use 

the then-existing equivalent of Rule 60 to grant relief from judgment in 

criminal cases as an exercise of the court’s common-law authority. Id. at 

190–91 (authorizing the court to grant Rule 60-type relief from a criminal 
STATE v. HARRIES

Decision of the Court

4

judgment unless doing so would violate double jeopardy); State v. 

McKelvey, 30 Ariz. 265, 267–68 (1926) (restricting application of Condos to

exclude suspension or modification of a valid, executed sentence); Sam v. 

State, 33 Ariz. 421, 423–24, 429 (1928) (restating the Condos rule and 

clarifying that the superior court nevertheless loses jurisdiction once an 

appeal is perfected); see also, e.g., State v. Lopez, 96 Ariz. 169, 171–72 (1964); 

Campbell v. Thurman, 96 Ariz. 212, 214 (1964); State v. Hogue, 106 Ariz. 532, 

534 (1971). But that line of cases makes clear that the Condos rule served 

only as a gap-filler absent specific rules governing post-judgment motions 

in criminal cases. See Campbell, 96 Ariz. at 214 (“Where statutes and rules 

exist covering the situation it is unnecessary and improper to look to the 

common law for inherent powers.”); see also Lopez, 96 Ariz. at 172 

(reiterating that Rule 60 could be used in a criminal case “in the absence of 

a specific rule or statute”).

¶10 As of the early 1970s, the Arizona Rules of Criminal 

Procedure provided just such rules: adoption of Rules 24.2 (“Motion to 

Vacate Judgment”) and 24.3 (“Modification of Sentence”) replaced the 

Condos-era reliance on Rule 60 and provided “specifically criminal post-trial 

remedies of similarly broad scope.” Ariz. R. Crim. P. 24.2 cmt. These 

criminal-specific rules for relief from judgment supplanted reliance on Rule 

60 in criminal cases and abrogated this aspect of Condos and its progeny. 

See id. (“Rule 60(c) does not have any further application to criminal 

cases.”); see also Campbell, 96 Ariz. at 214; cf. State v. Falkner, 112 Ariz. 372, 

374 (1975) (holding that the superior court’s substantive authority 

regarding post-trial motions “is limited to that set out in the Rules”). 

Accordingly, the superior court’s authority to vacate its misdemeanordesignation ruling must now be found in—and is constrained by—these 

rules of criminal procedure.

¶11 Here, the superior court’s misdemeanor-designation ruling 

permissibly modified the initial adjudication of Harries’s guilt by adjusting 

the classification of his offense of conviction, so it operated as the court’s 

“judgment” for these purposes; Harries’s sentence was entered in 2001. See

Ariz. R. Crim. P. 26.1(b); see also State ex rel. Adel v. Hannah, 249 Ariz. 537, 

540, ¶ 18 (2020). The State was thus required to file any request to unwind 

the misdemeanor designation “no later than 60 days after” that ruling. 

Ariz. R. Crim. P. 24.2(b); cf. Ariz. R. Crim. P. 24.3(a) (same time limit for a 

request to correct the sentence). The State did not do so, however, until 88 

days later. Although the State’s request to unwind would have been timely 

under the 6-month deadline in Rule 60, it was not timely under Rule 24.
STATE v. HARRIES

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¶12 In superior court, the State claimed its actions were delayed 

because Harries’s application to designate his 2001 offense a misdemeanor 

only endorsed the Maricopa County Attorney’s Office generally and not the 

deputy county attorney assigned to the 2016 case. We are unaware of any

legal authority, however, that would require that the application relating to

the initial offense specifically endorse the attorney who had been 

prosecuting the wholly distinct, already-dismissed 2016 case. And the State 

has not explained how the general endorsement excused a nearly threemonth delay in responding to the application.

¶13 The State argues that the superior court nevertheless had 

authority to consider its untimely motion. But the authorities on which the 

State relies address the court’s discretion to extend the time for filing

pretrial motions, not post-judgment motions challenging a final, appealable 

ruling. See Ariz. R. Crim. P. 16.1(a), (c); State v. Colvin, 231 Ariz. 269, 271–

72, ¶¶ 6–7 (App. 2013); State v. Cramer, 174 Ariz. 522, 523 (App. 1992); State 

v. Vincent, 147 Ariz. 6, 8–9 (App. 1985). Rule 24.2 itself delineates limited 

circumstances in which the State can file a motion to vacate judgment “at 

any time.” See Ariz. R. Crim. P. 24.2(e)(1) (clear and convincing evidence of 

defendant’s actual innocence), (2) (wrongful conviction “based on an 

erroneous application of the law”). But neither permissible ground is 

implicated here.

¶14 Finally, we see no inherent injustice in applying Criminal 

Rule 24 rather than Civil Rule 60 to the facts of this case. The refiled 

misconduct-involving-weapons charge carries its own punishment upon 

conviction, and nothing prevents the State from asserting the circumstances 

underlying the prior offense designation in arguing for a harsher sentence 

within the available sentencing range. Our ruling simply reaffirms that if 

the State disagrees with a ruling affecting a criminal judgment, it must 

challenge the ruling within the time frame set forth in Rule 24.

¶15 Accordingly, under these circumstances, we hold that the 

superior court lacked authority to vacate its prior misdemeanordesignation ruling. We thus reverse and reinstate the superior court’s 

September 2017 ruling designating Harries’s 2001 offense as a class 1 

misdemeanor.
STATE v. HARRIES

Decision of the Court

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CONCLUSION

¶16 The cause is reversed and the misdemeanor designation 

reinstated.