IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

ALEX PAUL RASMUSSEN, )

)

Petitioner, )

)

v. ) 2 CA-SA 2011-0043

) DEPARTMENT B

HON. CLARK MUNGER, Judge of )

the Superior Court of the State of Arizona, ) O P I N I O N

in and for the County of Pima, )

)

Respondent, )

)

and )

)

THE STATE OF ARIZONA, )

)

Real Party in Interest. )

)

SPECIAL ACTION PROCEEDING

Pima County Cause No. CR20084770

JURISDICTION ACCEPTED; RELIEF GRANTED

Robert J. Hirsh, Pima County Public Defender

 By David J. Euchner Tucson

Attorneys for Petitioner

Barbara LaWall, Pima County Attorney

 By Jacob R. Lines Tucson

Attorneys for Real Party in Interest

E C K E R S T R O M, Judge.

FILED BY CLERK

COURT OF APPEALS

DIVISION TWO

JUL -1 2011
2

¶1 Alex Rasmussen petitions this court for special action review of the 

respondent judge‟s order denying his motion seeking release from jail. For the reasons 

that follow, we accept jurisdiction and grant relief.

¶2 Rasmussen pled guilty to two counts of arson of an occupied structure. The 

respondent judge suspended imposition of sentence and placed Rasmussen on 

consecutive, seven-year terms of probation. The respondent also ordered that, as a 

condition of probation, Rasmussen serve two consecutive, one-year jail terms. At the end 

of his first jail term, Rasmussen filed a motion seeking release, asserting that the statutes 

governing probation did not permit a jail term exceeding one year, or, in the alternative, 

that his second jail term could not begin until he completed his first seven-year probation 

term. The respondent denied Rasmussen‟s motion, determining that consecutive jail 

terms were permitted by A.R.S. § 13-901(F),

1

relying on State v. Richardson, 172 Ariz. 

43, 833 P.2d 714 (App. 1992).

¶3 “Whether to accept special action jurisdiction is for this court to decide in 

the exercise of our discretion.” Potter v. Vanderpool, 225 Ariz. 495, ¶ 6, 240 P.3d 1257, 

1260 (App. 2010). We accept jurisdiction because the issue presented here is a purely 

legal question not addressed fully by existing case law and because Rasmussen has no 

remedy by appeal. See Ariz. R. P. Spec. Actions 1(a); State ex rel. Romley v. Martin, 203 

Ariz. 46, ¶ 4, 49 P.3d 1142, 1143 (App. 2002) (“Special action jurisdiction is appropriate 

in matters of statewide importance, issues of first impression, cases involving purely legal 

 

1We have cited the current versions of the statutes applicable to this opinion, as 

their relevant provisions have not changed since Rasmussen committed his offenses.
3

questions, or issues that are likely to arise again.”), aff’d, 205 Ariz. 279, 69 P.3d 1000 

(2003); see also A.R.S. § 13-4033 (enumerating and limiting appealable orders); State v. 

Jimenez, 188 Ariz. 342, 345, 935 P.2d 920, 923 (App. 1996) (denial of motion to modify 

probation conditions not appealable). Relief is appropriate if the respondent judge has 

abused his discretion by committing an error of law or proceeded in excess of his legal 

authority. See Ariz. R. P. Spec. Actions 3; Potter, 225 Ariz. 495, ¶¶ 5-6, 240 P.3d at 

1259-60.

¶4 The issue before us is a question of statutory construction, a legal issue we 

review de novo. State v. Leonardo, 226 Ariz. 593, ¶ 5, 250 P.3d 1222, 1223 (App. 2011). 

In interpreting a statute, our goal is to determine the intent of the legislature, and the 

statute‟s language is the best indicator of that intent. Zamora v. Reinstein, 185 Ariz. 272, 

275, 915 P.2d 1227, 1230 (1996). Thus, if that language is unambiguous, we apply the 

language as written, without resorting to other rules of statutory construction. State v. 

Getz, 189 Ariz. 561, 563, 944 P.2d 503, 505 (1997). If the language is ambiguous, we 

examine the context of the statute and its historical background, subject matter, effects,

consequences, and purposes to determine the legislature‟s intent. Leonardo, 226 Ariz. 

593, ¶ 7, 250 P.3d at 1224.

¶5 Section 13-901(F), A.R.S., provides that a trial court may impose a jail 

term as a condition of probation. The court has broad discretion in imposing such a term 

and may require it be served “within the period of probation” at any “time or intervals, 

consecutive or nonconsecutive, . . . as long as the period actually spent in confinement 

does not exceed one year or the maximum period of imprisonment permitted under 
4

chapter 7 of this title, whichever is the shorter.” Id. Rasmussen first asserts the phrase 

“period of probation” is unclear, and, in the case of consecutive probation terms, could 

either mean the individual probation terms imposed or a combined, total term of 

probation. Thus, he posits, if the second definition is correct, although a trial court may

impose consecutive probation terms, the total jail term imposed as a condition of those 

terms cannot exceed one year.

¶6 We find no textual support in the statute for Rasmussen‟s position, and he 

identifies none. Section 13-901(A) enables our courts to place a person on probation for 

“an offense,” and § 13-901(B) states that the “period of probation” is determined by 

A.R.S. § 13-902, which identifies maximum probation terms based on the classification 

of individual offenses. The statutory scheme in no way contemplates a blending or 

merging of separate “period[s] of probation” imposed for separate offenses into a single 

“period of probation” for the purpose of § 13-901(F). Cf. State v. Bowsher, 225 Ariz. 

586, ¶ 21, 242 P.3d 1055, 1059 (2010) (consecutive probation terms reflect “distinct 

sanction for each count”). Division One of this court previously determined as much in 

Richardson, affirming a trial court‟s decision to impose consecutive, one-year jail terms 

when imposing two concurrent probation terms. 172 Ariz. at 44, 833 P.2d at 715. The 

court noted the trial court had not “merg[ed] the two convictions together to make one 

grant of probation,” but instead had sentenced Richardson separately for each offense. 

Id. at 44-45, 833 P.2d at 715-16.

¶7 Rasmussen nonetheless contends Richardson was wrongly decided.

Although that decision was issued by Division One of this court, both divisions 
5

“constitute a single court.” A.R.S. § 12-120(A). Thus, we will not depart from 

Richardson “„unless we are convinced [it is] based upon clearly erroneous principles, or 

conditions have changed so as to render [it] inapplicable.‟” Scappaticci v. Sw. Sav. & 

Loan Ass’n, 135 Ariz. 456, 461, 662 P.2d 131, 136 (1983), quoting Castillo v. Indus. 

Comm’n, 21 Ariz. App. 465, 471, 520 P.2d 1142, 1148 (1974). Rasmussen first asserts 

Richardson was wrongly decided because it “runs counter to the language of” § 13-

901(F). He reasons that, because the statute uses the phrase “period of probation” and 

“does not say „one year per offense,‟” the legislature clearly intended a maximum jail 

term of one year, irrespective of the number of convictions. But, as we have explained, 

the phrase “period of probation” refers to the term of probation imposed for each 

individual offense, not a combined term.

¶8 Rasmussen next asserts Richardson is contrary to public policy. He posits, 

without support, that the one-year maximum jail term provided in § 13-901(F) reflects a 

legislative policy decision that a jail term exceeding one year undermines the 

rehabilitative role that probation is meant to play. But, because the statutory language is 

unambiguous, we need not consider other rules of statutory construction, including the 

legislature‟s public policy goals. See Getz, 189 Ariz. at 563, 944 P.2d at 505. Further, 

although Rasmussen‟s interpretation of the one-year maximum‟s purpose is plausible, 

that maximum is at least equally likely to reflect the legislature‟s recognition that, as a 

practical matter, the typical jail—as opposed to a Department of Corrections facility—is 

not intended to accommodate long-term inmates. We find nothing in the legislative 

history or materials supporting Rasmussen‟s public policy argument. And, in any event, 
6

Rasmussen‟s speculation about the purpose of the one-year limit is not sufficient for us to 

conclude that Richardson was based on clearly erroneous principles. See Scappaticci, 

135 Ariz. at 461, 662 P.2d at 136. Moreover, Rasmussen‟s proposed interpretation would 

create an anomaly, recognized in Richardson, when a defendant placed on probation

contemporaneously for two unrelated offenses would be exposed to a lesser jail term than 

a defendant placed on probation at separate times for two unrelated offenses. 172 Ariz. at 

45-46, 833 P.2d at 716-17; see also State v. Baca, 187 Ariz. 61, 63, 926 P.2d 528, 530 

(App. 1996) (in construing statute, appellate court presumes legislature did not intend 

absurd result and we attempt to avoid such consequence).

¶9 Rasmussen also suggests Richardson was wrongly decided because 

consecutive terms of probation were not permitted until our supreme court‟s recent 

decision in Bowsher. He is mistaken; our supreme court‟s decision in Bowsher makes it 

plain that, although prior dicta suggested otherwise, consecutive probation terms have 

been permitted in Arizona since at least 1978. 225 Ariz. 586, ¶¶ 17-20, 23, 242 P.3d at 

1058-59. The Richardson decision cannot reasonably be faulted for disregarding dicta

addressing a different, albeit related, question, particularly when that dicta has since been 

rejected as incorrect.

¶10 We agree with Rasmussen, however, that the respondent judge was not 

permitted to require that his jail terms be served consecutively. Section 13-901(F)

permits the trial court to determine the time and intervals of the jail term only “within the 

period of probation.” By ordering Rasmussen to serve consecutive jail terms, the 

respondent effectively ordered Rasmussen to serve a second jail term, a condition of his 
7

second term of probation, during the first term of probation the court had imposed. 

Based on the statute‟s plain language, the court could require service of a second oneyear jail term only during Rasmussen‟s second probation term.

¶11 We disagree with the state‟s assertion that Richardson supports a contrary 

reading. The trial court in Richardson imposed concurrent probation terms. 172 Ariz. at 

44, 833 P.2d at 715. The Richardson court determined that a trial court‟s authority under 

§ 13-901(F) to determine the time and interval of associated jail terms permits it to order 

the terms be served consecutively because both would occur within their respective 

probation terms—therefore comporting with the statute‟s language requiring the jail 

terms to occur “within the period of probation.” 172 Ariz. at 45-46, 833 P.2d at 716-17. 

That reasoning is inapplicable to the consecutive jail terms imposed here.

¶12 For the reasons stated, we hold that when a trial court imposes consecutive 

periods of probation, each of which includes a term of incarceration, each jail term must 

be served within the probation period imposed for each respective offense.

2

 And, 

 

2Because we have determined the statute‟s plain language requires that any jail 

time imposed pursuant to a term of probation must be served during that probation term, 

we do not address the public policy merits of so limiting the trial court‟s discretion. We 

note that, under the current statutory language, the imposition of jail terms in each of the 

consecutive probationary periods could have the salutary effect of motivating 

probationers to perform well during the first probation period so that they could plausibly 

seek a modification of the terms of the second probation period, including vacating or 

suspending the second jail term. See Ariz. R. Crim. P. 27.3 (authorizing probationers to 

request court “to modify . . . any condition” of probation). On the other hand, the current 

language somewhat reduces the trial court‟s range of options in tailoring a sentence to 

address the unique features of the case and defendant before it. But the state has not 

argued that our interpretation of the plain language would lead to an absurd result. “An 

absurd result is one „so irrational, unnatural, or inconvenient that it cannot be supposed to 

have been within the intention of persons with ordinary intelligence and discretion.‟” 
8

because Rasmussen has already served his one-year jail term for his first probation 

period, he must be released from confinement as to the second. Accordingly, the 

respondent abused his discretion by denying Rasmussen‟s motion for release. We

therefore vacate the respondent judge‟s order denying Rasmussen‟s motion and remand 

the case to the respondent to modify the conditions of Rasmussen‟s probation in 

conformity with this opinion.

/s/ Peter J. Eckerstrom

PETER J. ECKERSTROM, Judge

CONCURRING:

/s/ Garye L. Vásquez

GARYE L. VÁSQUEZ, Presiding Judge

/s/ Virginia C. Kelly

VIRGINIA C. KELLY, Judge

 

Evans Withycombe, Inc. v. W. Innovations, Inc., 215 Ariz. 237, ¶ 12, 159 P.3d 547, 550 

(App. 2006), quoting State v. Estrada, 201 Ariz. 247, ¶ 17, 34 P.3d 356, 360 (2001). 

When, as here, the plain language of the pertinent statute expresses a legislative intent 

that is not absurd, it is for the legislature, not this court, to debate the wisdom of that 

legislation.