                                                                   FILED BY CLERK
                                                                       FEB 21 2006
                             IN THE COURT OF APPEALS                   COURT OF APPEALS
                                 STATE OF ARIZONA                        DIVISION TWO
                                   DIVISION TWO


                                            )         2 CA-MH 2005-0005-SP
                                            )         DEPARTMENT A
IN RE THE COMMITMENT OF                     )
ROBERT FLEMMING                             )         OPINION
                                            )
                                            )
                                            )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                  Cause No. A-36951

                       Honorable Howard Fell, Judge Pro Tempore

                                     AFFIRMED


Barbara LaWall, Pima County Attorney
 By Taren M. Ellis                                                           Tucson
                                                              Attorneys for Appellee

Barton & Storts, P.C.
 By Brick P. Storts, III                                                      Tucson
                                                              Attorneys for Appellant


P E L A N D E R, Chief Judge.
¶1           In 1999, after stipulating that he suffered from pedophilia and psychosis,

Robert Flemming was adjudicated a sexually violent person as defined in A.R.S. § 36-

3701(7) of Arizona’s Sexually Violent Persons (SVP) Act, A.R.S. §§ 36-3701 through

36-3717. He was civilly committed for treatment at the Arizona Community Protection and

Treatment Center (ACPTC) pursuant to § 36-3707(B)(1). In a 2003 incident, Flemming

became violent and physically assaulted a staff member at the ACPTC. As a result, he was

prosecuted, convicted of aggravated assault, and sentenced in July 2004 to serve a 3.5-year

prison sentence in the Arizona Department of Corrections (ADOC).

¶2           At the state’s request, the trial court in August 2004 ordered “any and all

treatment, evaluation, testing, and reporting requirements” of the SVP Act stayed pending

Flemming’s release from ADOC and his return to the ACPTC. Flemming then filed a

petition asking the trial court to vacate the stay order and dismiss the SVP proceedings

entirely in light of his incarceration. This appeal follows the trial court’s denial of

Flemming’s “motion to dismiss.”

¶3           Generally, a trial court’s denial of a motion to dismiss is an interlocutory, non-

appealable order. Nataros v. Superior Court, 113 Ariz. 498, 499, 557 P.2d 1055, 1056

(1976). But, in this unique and specific context involving a post-judgment order in an SVP

proceeding, we have jurisdiction pursuant to A.R.S. § 12-2101(C) (“any special order made

after final judgment” is appealable). See also Arvizu v. Fernandez, 183 Ariz. 224, 226-27,

902 P.2d 830, 832-33 (App. 1995); cf. § 12-2101(K)(2) (orders revoking or refusing to


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revoke prior adjudications of insanity and incompetency are appealable orders). We review

issues concerning the interpretation of Arizona’s SVP Act de novo. State v. Hoggatt, 199

Ariz. 440, ¶ 4, 18 P.3d 1239, 1241 (App. 2001).

¶4              Flemming challenges the trial court’s refusal to dismiss the SVP proceedings,

claiming the court lacked authority to order a stay. He contends his rights under the SVP

Act include the right to “care, supervision and treatment” at the ACPTC in accordance with

§ 36-3707(B); the right to be evaluated annually pursuant to § 36-3708; and the right to

petition annually for release to a less restrictive, alternative placement or for a complete

discharge under §§ 36-3709 and 36-3714. Because Flemming is necessarily being denied

these “rights” while he is in the custody of ADOC, he contends the SVP proceedings should

be dismissed.

¶5              Flemming is correct that the SVP Act does not specifically provide for the

situation in which a sexually violent person, after being civilly committed under the Act,

is subsequently arrested and incarcerated on criminal charges. Consequently, the Act does

not expressly authorize the trial court to order a stay. But neither does it authorize the

outright dismissal Flemming seeks. Instead, § 36-3704(D) provides: “The court’s

jurisdiction over a person who is civilly committed pursuant to this article continues until

the person is discharged by the court.”

¶6              Flemming’s arrest and conviction on criminal charges is in no sense a

discharge under the SVP Act for purposes of § 36-3704(D). Such a discharge occurs, upon


                                              3
petition by the committed person, only if the state cannot prove beyond a reasonable doubt

at a hearing on the discharge petition that the committed person’s mental disorder persists

and the person remains a danger to others and likely to engage in acts of sexual violence

if discharged. See § 36-3714(A), (C). Flemming’s arrest, conviction, and resulting prison

sentence for an assault he committed while confined neither constitute, nor necessitate, his

discharge under § 36-3714.

¶7            Although Flemming contends the state should dismiss the SVP proceedings

while he is incarcerated and refile them, if appropriate, when he completes his sentence,

§ 36-3704(D) provides otherwise. Short of the complete discharge contemplated by §§ 36-

3704(D) and 36-3714(A) and (C), we can conceive of no reason why the state should be

required to duplicate its efforts and repeat the procedure by which Flemming has already

been adjudicated a sexually violent person pursuant to § 36-3707. What Flemming

characterizes as his “rights” under the SVP Act are essentially procedural safeguards that

accompany and qualify the state’s authority to keep those who have been adjudicated

sexually violent persons confined indefinitely. The rights Flemming claims he is now being

denied as the result of his criminal conviction are, more accurately, conditions of his

continued civil confinement, necessitated by the “obvious liberty interest at stake” when

a sexually violent person is civilly committed for an indeterminate period of supervision and

treatment. Ugalde v. Burke, 204 Ariz. 455, ¶ 12, 65 P.3d 103, 106 (App. 2003).




                                             4
¶8            But Flemming is not presently subject to civil confinement. His criminal

conviction, prison sentence, and resulting transfer to the custody of ADOC have rendered

him temporarily ineligible for the “care, supervision or treatment” he would otherwise be

receiving had he remained at the ACPTC under the supervision of the superintendent of the

Arizona state hospital. See § 36-3707(B). While he is in prison, the superintendent of the

state hospital is unable to provide the treatment, testing, evaluations, reviews, and hearings

to which Flemming will again be entitled when he is returned to the ACPTC.

¶9            Flemming’s arrest, criminal prosecution and prison sentence for assault, were

intervening, superseding events, all self-imposed by his own criminal conduct, that

currently prevent the state from complying with the annual requirements imposed by the

SVP Act. Until Flemming is released from prison, transferred back to the custody of the

department of health services or the superintendent of the state hospital, and returned to

the ACPTC to resume his civil commitment, his absence and imprisonment effectively

suspend the state’s obligations under the SVP Act by rendering compliance with the Act

impossible and pointless.1 As a result, the trial court’s August 2004 stay order was a

logical, appropriate, and essentially ministerial act in response to Flemming’s arrest and the


       1
        Even if theoretically required and somehow possible, the state’s compliance with
evaluation and reporting requirements would be futile in any event. Were Flemming
evaluated and declared eligible for release to a less restrictive alternative placement pursuant
to § 36-3710 or for discharge pursuant to § 36-3714, he would still, of course, remain in
prison until the expiration of his criminal sentence. Thus, for as long as he remains in
custody serving a criminal sentence, his civil status as a sexually violent person is of no
practical consequence.

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unavoidable interruption of his civil commitment by new criminal proceedings. See A.R.S.

§ 12-123(B) (superior court “shall have all powers and may issue all writs necessary to the

complete exercise of its jurisdiction”). The trial court properly denied Flemming’s petition

for dismissal of the SVP proceedings, and we affirm its ruling.



                                              ____________________________________
                                              JOHN PELANDER, Chief Judge

CONCURRING:



____________________________________
PHILIP G. ESPINOSA, Presiding Judge



____________________________________
WILLIAM E. DRUKE, Judge*


*A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge
on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed
December 6, 2005.




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