ARS 13-702(G) Interpretation

In State v. Shlionsky, 184 Ariz. 631, 632, 911 P.2d 637, 638 (App. 1996), the Court found the phrase "until the probation is terminated" in 13-702(G) "simply establishes the latest point at which that designation may be made." However, that comment was dicta. In Shlionsky, we addressed the issue whether 13-702(G) permitted a trial court to designate an offense prior to the termination of probation, if warranted by the circumstances. Id. In affirming the court's early designation, we noted that "the 1984 amendment to 13-702(G) expands rather than restricts the trial court's discretion by permitting the court to determine the appropriate point at which to classify the offense based on such factors as a defendant's performance or lack of performance on probation." Id. In State v. Arbolida, 206 Ariz. 306, P7, 78 P.3d 275, 277 (App. 2003), the Court considered whether a defendant who had a prior felony conviction was eligible for probation under 13-702(G). The court said nothing about the timing of a trial court's designation of an offense. Section 13-702(G) provides,in pertinent part, as follows: If a person is convicted of any class 6 felony not involving the intentional or knowing infliction of serious physical injury or the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument and if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that it would be unduly harsh to sentence the defendant for a felony, the court may . . . place the defendant on probation . . . and refrain from designating the offense as a felony or misdemeanor until the probation is terminated. the offense shall be treated as a felony for all purposes until such time as the court may actually enter an order designating the offense as a misdemeanor. Thus, under 13-702(G), although a trial court has discretion to delay its designation of a class six felony until the termination of probation, the statute does not provide that a defendant is entitled to have his or her offense designated at any particular time. The Rules of Criminal Procedure likewise do not set forth any requirements for the latest point at which such a designation may be made. See Ariz. R. Crim. P. 27.1 through 27.4.