State v. Winton
In State v. Winton, 153 Ariz. 302, 305, 736 P.2d 386, 389 (App. 1987) the Court determined that the defendant did not have a "vested right" to have her offense designated at the time of sentencing.
There, the defendant had been charged with theft, and at the time she committed the crime, the predecessor statute to 13-702(G) required the trial court to designate the offense as either a felony or misdemeanor at the time of sentencing. Id. at 304, 736 P.2d at 388.
However the statute was amended to its present form prior to sentencing and the court, accordingly, deferred designation of the offense until probation was terminated. Id.
When the defendant violated probation several months later, the court designated the offense a felony. Id. On appeal, the defendant essentially argued that postponing the designation constituted an ex post facto application of the amendment and that the original sentence was, therefore, illegal. Id. at 304-05, 736 P.2d at 388-89.
But in holding "that the time for designating an offense is a procedural matter," the court reasoned:
First, the amended portion of the statute does not make it a penalty statute. It does not alter the elements of or defenses to a crime. State v. Coconino County Superior Court, 139 Ariz. 422, 678 P.2d 1386 (1984).
Moreover, the amendment to the statute does not affect the period of incarceration for an offense, State v. Brown, 123 Ariz. 406, 599 P.2d 859 (App. 1979), or the length or availability of parole, State v. La Barre, 125 Ariz. 497, 610 P.2d 1058 (App. 1980).
The amendment does not affect restitution or probation. The sole effect of the amendment is to allow the trial court the alternative of deferring the designation of the open-ended offense until termination of probation. Id. at 305, 736 P.2d at 389.