                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
                ARIZONA COURT OF APPEALS
                                  DIVISION ONE


 STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa
                 County Attorney, Petitioner,

                                          v.

THE HONORABLE PETER REINSTEIN, Judge of the SUPERIOR COURT
 OF THE STATE OF ARIZONA, in and for the County of MARICOPA,
                      Respondent Judge,

                  STEVEN HENDRIX, Real Party in Interest.

                              No. 1 CA-SA 14-0068
                                FILED 5-15-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-004284-012
                 The Honorable Peter Reinstein, Judge

            JURISDICTION ACCEPTED; RELIEF GRANTED


                                    COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Petitioner

Gallagher & Kennedy, P.A., Phoenix
By Tom Henze, Janey Henze Cook, Kiersten Murphy
Counsel for Real Party in Interest
                    STATE v. REINSTEIN/HENDRIX
                         Decision of the Court



                           DECISION ORDER

Presiding Judge Lawrence F. Winthrop delivered the decision of the
Court, in which Judge Maurice Portley and Judge Andrew W. Gould
joined.


W I N T H R O P, Presiding Judge:

¶1            Petitioner, the State of Arizona, by and through the
Maricopa County Attorney, has filed a petition for special action
challenging the trial court’s ruling allowing the Real Party in Interest,
Steven Hendrix, to file a motion for a new finding of probable cause. The
State contends the trial court erred because the deadline for filing such a
motion had passed and the court lacked discretion to extend the deadline.
For the following reasons, we accept jurisdiction and grant relief.

¶2            The operative facts are as follows: On October 11, 2013, a
grand jury issued a fifty-five count indictment, naming Hendrix and
others as participants in a criminal syndicate involved in trafficking in
stolen property. Hendrix had his initial appearance and arraignment on
October 17 and 23, respectively, and the grand jury transcript was filed on
October 30, 2013. Consequently, Hendrix had twenty-five days from
October 30 (or until Monday, November 25, 2013) to challenge the grand
jury proceedings by filing a motion for a new finding of probable cause.
See Ariz. R. Crim. P. (“Rule”) 12.9(b).

¶3            On November 18, 2013, Hendrix filed a timely motion to
extend the time to file his Rule 12.9 motion for a new finding of probable
cause. In the motion, Hendrix specifically requested “a 60-day extension.”
The next day, the trial court issued an order “granting the Motion”
without further explanation and without specifying the new deadline
date. Nonetheless, a full sixty-day extension from the last day to
challenge the grand jury proceedings (November 25) extended the time
for Hendrix to file his motion to January 24, 2014. Hendrix, however, did
not file a motion for a new finding of probable cause (and did not move to
further extend the time to file such a motion) on or before January 24.

¶4           On March 3, 2014, Hendrix filed a motion for a new finding
of probable cause, and he requested an additional thirty days to allow for
supplemental filing. Citing Maule v. Superior Court, 142 Ariz. 512, 690 P.2d


                                     2
                     STATE v. REINSTEIN/HENDRIX
                          Decision of the Court

813 (App. 1984), the State filed a response arguing the mandatory deadline
for the motion had passed. Hendrix replied in part that, because the trial
court did not specify a new filing deadline date in its November 19 order,
he could file his motion at any time, including after January 24, 2014, and
that the State had effectively acquiesced to that position on January 31,
2014, when the State did not protest Hendrix’s expression of his intent to
file the motion in the parties’ jointly prepared Joint Case Management
Plan. Hendrix also argued that, although Maule prohibited a first request
for an extension of time after the 25-day mandatory time limit of Rule 12.9,
it said nothing about preventing a party who had timely requested an
extension of time from later filing a motion that missed the extension
deadline set by the court.

¶5             At oral argument on March 28, 2014, the trial court granted
what it characterized as a “motion for new finding,” but denied Hendrix’s
request for an additional thirty days to supplement his Rule 12.9 motion
to remand. The court also allowed the co-defendants, who had filed no
previous motion or request for an extension, to join Hendrix’s Rule 12.9
motion to remand. In its minute entry memorializing its ruling filed April
2, 2014, the court found “that the Defendant’s Motion was filed timely
under the facts and circumstances of this matter.” On April 23, 2014, the
State filed this petition for special action.

¶6              We may accept special action jurisdiction when a petitioner
has no equally plain, speedy, and adequate remedy by appeal, see Ariz.
R.P. Spec. Act. 1(a); State ex rel. Romley v. Dairman, 208 Ariz. 484, 485-86,
¶ 2, 95 P.3d 548, 549-50 (App. 2004), or when the trial court has abused its
discretion or committed a plain and obvious error. See Ariz. R.P. Spec.
Act. 3(c); Amos v. Bowen, 143 Ariz. 324, 327, 693 P.2d 979, 982 (App. 1984).
In this case, special action jurisdiction is appropriate because the State has
no equally plain, speedy, or adequate remedy by appeal, and we conclude
that the trial court erred.

¶7            The State argues the court erred because it lacked discretion
to further extend the deadline to file a motion for a new finding of
probable cause. In Maule, this court held in part that, despite the
“mandatory” language of Rule 12.9, “the trial court may grant an
extension of time in which to file a motion pursuant to rule 12.9,” but “the
trial court has no authority to grant an extension that is not made on a
timely basis.” 142 Ariz. at 515, 690 P.2d at 816; see also State v. Mulligan,
126 Ariz. 210, 213, 613 P.2d 1266, 1269 (1980) (“A defendant waives his
objections to the grand jury proceeding by failing to comply with the
timeliness requirement.” (citation omitted)). Given this court’s previous


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                    STATE v. REINSTEIN/HENDRIX
                         Decision of the Court

analysis in Maule, the State’s argument is well-taken. The only reasonable
interpretation of the trial court’s ruling granting Hendrix’s November 18
motion for an extension is that the court granted Hendrix the full amount
of time requested – sixty days. Moreover, nothing in Rule 12.9 or case law
interpreting that rule contemplates an open-ended extension of time for a
defendant to file his motion. Consequently, Hendrix’s motion for a new
finding of probable cause was due no later than January 24, 2014. Any
attempt by Hendrix to file his motion or seek a further extension of time in
which to file the motion after January 24 was untimely. Accordingly,

¶8             IT IS ORDERED accepting jurisdiction of the State’s
petition for special action.

¶9             IT IS FURTHER ORDERED granting relief by reversing the
trial court’s ruling that the motion for a new finding of probable cause
filed by the Real Party in Interest, Steven Hendrix, was timely.

¶10            IT IS FURTHER ORDERED vacating this court’s stay of the
trial court proceedings granted on May 9, 2014.

¶11           IT IS FURTHER ORDERED that the clerk of this court
provide a copy of this Decision Order to the Honorable Peter Reinstein, a
Judge of the Superior Court, and to each party appearing herein.




                                   :MJT




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