                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 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


                   DONALD JUVAN, Petitioner/Appellant,

                                        v.

 THE HONORABLE KARL C. EPPICH, Judge of the MESA MUNICIPAL
   COURT OF THE STATE OF ARIZONA, in and for the County of
            MARICOPA, Respondent Judge/Appellee,

       STATE OF ARIZONA, by the Mesa City Prosecutor’s Office,
                   Real Party in Interest/Appellee.

                             No. 1 CA-CV 14-0130
                              FILED 12-09-2014


           Appeal from the Superior Court in Maricopa County
                        No. LC2013-000437-001
                  The Honorable Daniel J. Kiley, Judge

                                  AFFIRMED


                                   COUNSEL

Ballecer & Segal, Phoenix
By Natalee E. Segal
Co-Counsel for Petitioner/Appellant

The Law Offices James Tinker, Phoenix
By James S. Tinker
Co-Counsel for Petitioner/Appellant
Mesa City Prosecutor’s Office, Mesa
By W. Craig Jones
Counsel for Real Party in Interest/Appellee



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.


J O N E S, Judge:

¶1           Donald Juvan appeals from the superior court’s order
denying special action relief. Juvan argued before that court that double
jeopardy prevented prosecution of DUI offenses in the Mesa Municipal
Court that had been initially charged in the Gilbert Municipal Court, but
later dismissed because the Gilbert court could not find the offense
occurred within the geographical boundaries of the Town of Gilbert. For
the following reasons, we affirm the superior court’s denial of relief.

                 FACTS AND PROCEDURAL HISTORY

¶2             Juvan was arrested and charged in the Gilbert Municipal
Court with driving under the influence of alcohol in violation of Arizona
Revised Statutes (A.R.S.) section 28-1381(A)(1) and (2).1 At trial, Juvan
contested the Gilbert court’s jurisdiction over the offenses. The Gilbert
court took evidence regarding the location of the alleged criminal conduct,
determined the State did not meet its burden of proving Juvan acted
“within the Town of Gilbert,” and dismissed the charge “based on a
jurisdictional issue.”

¶3            The State re-filed the same charges against Juvan in the Mesa
Municipal Court. Juvan then filed a motion to dismiss, arguing he was
prosecuted for the same crimes twice in violation of constitutional
protections against double jeopardy. After the Mesa court denied Juvan’s
motion, he petitioned the superior court for special action relief. The
superior court accepted jurisdiction, but denied relief.




1       Absent material revisions after the relevant dates, statutes cited refer
to the current version.


                                        2
                      JUVAN v. HON. EPPICH/MESA
                          Decision of the Court

¶4            Juvan timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(4) and -2101(A)(1), and Arizona Rule of Procedure
for Special Actions 8(a).

                                DISCUSSION

¶5             “We review a special action in which the superior court
accepts jurisdiction but denies relief for an abuse of discretion.” Merlina v.
Jejna, 208 Ariz. 1, 3, ¶ 6, 90 P.3d 202, 204 (App. 2004). However, we review
the superior court’s legal conclusions de novo, including its determination
of whether double jeopardy applies. Id.; State v. Siddle, 202 Ariz. 512, 515,
¶ 7, 47 P.3d 1150, 1153 (App. 2002).

¶6             Juvan argues jurisdiction is a substantive element of an
offense, and the Gilbert court’s dismissal, based upon its determination that
the State failed to meet its burden of proving the criminal conduct occurred
within the territorial jurisdiction of the court, equated to an acquittal on the
charge; therefore, the subsequent prosecution for the same offenses in the
Mesa court placed him at jeopardy of being prosecuted twice for the same
conduct. We disagree.

¶7             Both the United States and Arizona constitutions protect
against multiple prosecutions for the same offense. U.S. Const. amend. V;
Ariz. Const. art. 2, § 10; see also Lemke v. Rayes, 213 Ariz. 232, 236, ¶ 10, 141
P.3d 407, 411 (App. 2006) (citing United States v. Dixon, 509 U.S. 688, 744
(1993), and State v. Cook, 185 Ariz. 358, 360, 916 P.2d 1074, 1076 (App. 1995)).
The prohibition only applies, however, when the defendant is actually
placed “in jeopardy” at the first proceeding. Rolph v. City Court of Mesa, 127
Ariz. 155, 157, 618 P.2d 1081, 1083 (1980). Jeopardy does not attach “until a
proceeding begins before a trier ‘having jurisdiction to try the question of
the guilt or innocence of the accused.’” Serfass v. United States, 420 U.S. 377,
391 (1975) (quoting Kepner v. United States, 195 U.S. 100, 133 (1904)). Based
upon the record before us, jeopardy did not attach to the proceedings in the
Gilbert court.

I.     Juvan Was Not Placed In Jeopardy Because The Gilbert Municipal
       Court Did Not Have Jurisdiction over the Offenses.

¶8            This Court has held that dismissal of a charge serves as an
“acquittal” for double jeopardy purposes when it is based upon a resolution
of factual elements of the offense charged. Lewis v. Warner, 166 Ariz. 354,




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                     JUVAN v. HON. EPPICH/MESA
                         Decision of the Court

357, 802 P.2d 1053, 1056 (App. 1990). Our supreme court has determined,
however, that jurisdiction is not a substantive element of a crime. State v.
Willoughby, 181 Ariz. 530, 538, 892 P.2d 1319, 1327 (1995) (specifically
declining to “equate jurisdiction with elements of the offense”). Where, as
here, there are no “factual findings as to the merits” of the charged offense,
jeopardy does not attach. Lewis, 166 Ariz. at 357, 802 P.2d at 1056.

¶9              Moreover, under the Arizona Constitution, the legislature is
empowered to define the limitations of the municipal court. Ariz. Const.
art. 6, §§ 1, 32. A municipal court has jurisdiction over violations of state
law only where such violations are “committed within the limits of the city
or town.” A.R.S. § 22-402(B). Accordingly, a municipal court lacks
authority to adjudicate crimes committed outside of its territorial limits.

¶10            Where a court lacks jurisdiction, any determination of guilt or
innocence is a nullity — that is, “invalid and ineffective for any purpose.”
See State v. Espinoza, 229 Ariz. 421, 428-29, ¶¶ 31-32, 276 P.3d 55, 62-63 (App.
2012) (quoting State v. Cramer, 192 Ariz. 150, 153, ¶¶ 12, 16, 962 P.2d 224,
227 (App. 1998)) (internal quotations omitted). Because the defendant in
such a situation would never have truly been at risk of conviction, jeopardy
does not attach to the proceeding. See State v. Hickle, 133 Ariz. 234, 239, 650
P.2d 1216, 1221 (1982) (“Being a void order [entered by a court without the
jurisdictional power to do so], it is of no force and effect and may not be a
basis of a double jeopardy bar.”).

¶11           Here, the alleged criminal conduct did not occur within
Gilbert’s town limits; therefore, the Gilbert court lacked jurisdiction to make
any determination of guilt or innocence on any element of the offenses. For
this reason, Juvan was not at risk of conviction, and jeopardy did not
attach.2



2        We find further support for this holding in the U.S. Supreme Court’s
interpretation of the Double Jeopardy Clause, as well as that of numerous
other jurisdictions. See, e.g., Ball v. United States, 163 U.S. 662, 669 (1896)
(“An acquittal before a court having no jurisdiction is, of course, like all the
proceedings in the case, absolutely void, and therefore no bar to subsequent
indictment and trial in a court which has jurisdiction of the offense.”);
Woodring v. United States, 337 F.2d 235, 236-37 (9th Cir. 1964) (“[A] retrial,
when at the first trial the court did not have jurisdiction, presents an a
fortiori situation for non-double jeopardy.”); Gallemore v. State, 312 S.W.3d
156, 159 (Tex. App. 2010) (“[A] subsequent prosecution for the same offense



                                       4
                      JUVAN v. HON. EPPICH/MESA
                          Decision of the Court

II.    Juvan Was Not Placed In Jeopardy Because There Was No
       Determination On The Merits.

¶12            Juvan describes the dismissal of the charges brought in the
Gilbert court as an “acquittal.” This characterization is misplaced. Like the
State in Rolph, “[Juvan] seems to equate dismissal with acquittal. There is a
difference between the two. . . . [A] dismissal does not usually involve a
determination of guilt or innocence. An acquittal results after a
consideration of the facts and a finding of innocence of the charge.” 127
Ariz. at 158, 618 P.2d at 1084 (citing United States v. Scott, 437 U.S. 82, 98-99
(1978)). Given that our supreme court has specifically determined that
jurisdiction is not a substantive element of a crime, where there are no
“factual findings as to the merits” of any element of the charged offense,
jeopardy does not attach. Lewis, 166 Ariz. at 357, 802 P.2d at 1055.

¶13            Finally, we reject the suggestion that the characterization of
the proceeding at which the trial court determined it lacked jurisdiction is
relevant. Whether via judge or jury, at an informal hearing or trial,
territorial jurisdiction in the context of a municipal court proceeding
addresses the State’s power to prosecute the particular crime in that locale.
It is, therefore, a form of subject matter jurisdiction which can never be
waived. See A.R.S. § 22-402(B); State v. Jackson, 208 Ariz. 56, 62, ¶ 21, 90 P.3d
793, 799 (App. 2004) (citing Willoughby, 181 Ariz. at 535, 892 P.2d at 1324).

                               CONCLUSION

¶14            Accordingly, we conclude double jeopardy does not apply to
bar prosecution in the Mesa court following dismissal of the same charges
for lack of jurisdiction in the Gilbert court. Therefore, the superior court




is not jeopardy-barred when the initial conviction was obtained in the
absence of jurisdiction because such a conviction is a nullity, and jeopardy
does not attach.”); State v. Hutzler, 677 S.E.2d 655, 661 (W. Va. 2009) (finding
court in county where appellant was originally convicted “did not have
jurisdiction of the offenses . . . , we find that the appellant was never in
jeopardy for these offenses,” and that therefore “double jeopardy did not
bar the subsequent prosecution of the appellant for these offenses” in a
different county); State v. Hamilton, 754 P.2d 857, 859 (N.M. Ct. App. 1988)
(“[J]urisdiction is essential before jeopardy attaches.”).




                                       5
                     JUVAN v. HON. EPPICH/MESA
                         Decision of the Court

did not abuse its discretion in denying special action relief to Juvan, and we
affirm the Mesa Municipal Court’s order denying the motion to dismiss on
these grounds.




                                    :ama




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