State v. Garcia (1997)
In State v. Garcia, 189 Ariz. 510, 943 P.2d 870 (App. 1997), the defendant had a 1992 prior conviction that qualified as a historical prior under subsection (c) and two 1985 convictions that did not qualify as historical priors under subsections (a) or (b).
The trial court determined, however, that either of the 1985 convictions qualified as a second historical prior under subsection (d), reasoning that a third prior conviction did not have to be the third in time.
Division One disagreed, finding that the legislature intended for trial courts to "count prior felony convictions in chronological order" and that "the term 'third' typically denotes the most recent item or occurrence in a series of three." 189 Ariz. at 513, 943 P.2d at 873.
Division One also rejected as inconsistent with legislative intent the state's argument that one should count backwards chronologically to determine whether a defendant has a third prior conviction under subsection (d).
The court observed:
The problem with counting backwards to find a "third prior conviction," as the state urges we do, is that by doing so we would capture felonies that the legislature has expressly deemed to be too remote in time under subsections (b) and (c). . . . We think such a result is inconsistent with the legislature's apparent intent to establish a cut-off date for considering convictions that do not fall within subsection (a). Id. at 514, 943 P.2d at 874.
Division One thus found the trial court could consider only the defendant's 1992 conviction as his third prior conviction, and, because that conviction had already been designated as a historical prior under subsection (c), the trial court "could not use that same conviction to find an additional historical prior under subsection (d)." Id. at 515, 943 P.2d at 875.