                               IN THE COURT OF APPEALS
                                   STATE OF ARIZONA
                                     DIVISION TWO


THE STATE OF ARIZONA,                           )           2 CA-CR 2003-0151
                                                )           DEPARTMENT B
                                   Appellee,    )
                                                )           OPINION
                     v.                         )
                                                )
JANICE L. WILSON,                               )
                                                )
                                  Appellant.    )
                                                )


            APPEAL FROM THE SUPERIOR COURT OF COCHISE COUNTY

                                   Cause No. CR98000550

                             Honorable Thomas E. Collins, Judge

                                APPEAL DISMISSED
                      SPECIAL ACTION JURISDICTION ACCEPTED
                                  RELIEF DENIED


Terry Goddard, Arizona Attorney General
 By Donald Conrad and Sylvia E. Goodwin                                                Tucson
                                                                        Attorneys for Appellee

Patricia A. Taylor                                                                     Tucson
                                                                        Attorney for Appellant


P E L A N D E R, Presiding Judge.


¶1            Appellant Janice Wilson appeals from the trial court’s order granting a new trial

rather than dismissing the case on double jeopardy grounds, as she had requested. Because we

lack subject matter jurisdiction of the appeal, we dismiss the appeal and instead treat it as a
petition for special action. Wilson argues dismissal with prejudice of the underlying charge against

her is required under Peak v. Acuna, 203 Ariz. 83, 50 P.3d 833 (2002). We disagree and,

therefore, accept jurisdiction but deny relief.

                               PROCEDURAL BACKGROUND

¶2             This is the second appeal in this matter. A jury found Wilson guilty of fraudulent

scheme and artifice. Thereafter, the judge who presided over the trial (Judge Banales) granted

Wilson’s post-verdict motion for judgment of acquittal pursuant to Rule 20(b), Ariz. R. Crim. P.,

17 A.R.S. On the state’s appeal from that ruling, this court reversed, reinstated the jury’s guilty

verdict, and remanded the case. State v. Wilson, No. 2 CA-CR 99-0316 (memorandum decision

filed Jan. 25, 2001) (Wilson I ). We left open the possibility on remand of the trial court’s

revisiting Wilson’s motion for new trial, which Judge Banales had deemed moot after granting the

judgment of acquittal. Id. at ¶24. Wilson filed a motion for reconsideration in this court and a

petition for review with the supreme court, both of which were denied. This court’s mandate then

issued in December 2001.

¶3             On remand, Wilson moved to dismiss the case on double jeopardy grounds. She

also renewed her motion for new trial. The trial court (Judge Collins) inexplicably granted both

motions. On the state’s motion for reconsideration of the dismissal order, however, the trial court

changed that ruling, acknowledging that it had failed to follow the reasoning of Wilson I and

rejecting Wilson’s double jeopardy argument because she “was not acquitted.” The trial court also

affirmed its prior ruling granting a new trial based on Judge Banales’s failure to give a complete

reasonable doubt jury instruction as required by State v. Portillo, 182 Ariz. 592, 898 P.2d 970

(1995). Wilson then appealed.

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                                          DISCUSSION

I. Jurisdiction

¶4             Before turning to the merits of Wilson’s argument, we first address a jurisdictional

issue. Without citation of authority or analysis, the state contends “a special action, not a direct

appeal . . . is the appropriate vehicle for appealing the ruling of the lower court in this case.”

This court’s subject matter jurisdiction is specifically prescribed and limited by statute. See

A.R.S. §§ 12-120.21; 12-2101; Hanania v. City of Tucson, 123 Ariz. 37, 38, 597 P.2d 190, 191

(App. 1979) (“The appellate court only has such jurisdiction as the legislature has given it.”).

Thus, even had the state made no jurisdictional argument at all, “[t]his court has the duty to sua

sponte raise the question of its subject matter jurisdiction.” State v. Poli, 161 Ariz. 151, 153, 776

P.2d 1077, 1079 (App. 1989).

¶5             The applicable statute on orders from which defendants may appeal in criminal

cases is A.R.S. § 13-4033. That statute, inter alia, permits a defendant to appeal from “an order

made after judgment affecting the substantial rights of the party.” § 13-4033(A)(2). Judge

Collins’s order currently on appeal was not rendered “after judgment” for purposes of that statute,

inasmuch as our decision in Wilson I reversed the judgment of acquittal Judge Banales had

ordered. Once our mandate issued on that decision, no judgment existed.1




       1
        We need not determine whether the Rule 20(b) judgment of acquittal Judge Banales had
entered would have qualified as a “judgment” for purposes of appellate jurisdiction under A.R.S.
§ 13-4033(A)(2). We note, however, that arguably it did not under the definition of “judgment”
in Arizona’s criminal rules. See Ariz. R. Crim. P. 26.1(a), 17 A.R.S. (“The term judgment means
the adjudication of the court based upon the verdict of the jury, upon the plea of the defendant,
or upon its own finding following a non-jury trial, that the defendant is guilty or not guilty.”).

                                                 3
¶6             Accordingly, the “appropriate vehicle” for Wilson to have sought review was

special action, not appeal. See Nalbandian v. Superior Court, 163 Ariz. 126, 130, 786 P.2d 977,

981 (App. 1989) (“[A] petition for special action is the appropriate vehicle for a defendant to

obtain judicial appellate review of an interlocutory double jeopardy claim.”); see also State v.

Meza, 203 Ariz. 50, ¶18, 50 P.3d 407, ¶18 (App. 2002) (“The proper vehicle to challenge the

denial of a motion to dismiss is not an appeal but a petition for special action.”); Hovey v.

Superior Court, 165 Ariz. 278, 281, 798 P.2d 416, 419 (App. 1990) (“The denial of a motion to

dismiss is not an appealable order.”); but cf. State v. Choate, 151 Ariz. 57, 57-58, 725 P.2d 764,

764-65 (App. 1986) (when judgment previously had been entered, appellate court had jurisdiction

under former § 13-4033(2) of interlocutory appeal of double jeopardy claim because it “is

constitutionally mandated”).

¶7             Nonetheless, we may treat this appeal as a special action. See Meza, 203 Ariz. 50,

¶18, 50 P.3d 407, ¶18 (“‘[W]here relief may be granted by extraordinary writ (special action),

[an appellate court] may grant the appropriate relief even though the writ applied for . . . is not

aptly titled.’”), quoting Brown v. State, 117 Ariz. 476, 477, 573 P.2d 876, 877 (1978) (alteration

in Meza). In light of the age and procedural history of this case, and because Wilson claims a new

trial will subject her to jeopardy a second time, see Abney v. United States, 431 U.S. 651, 660-62,

97 S. Ct. 2034, 2040-42, 52 L. Ed. 2d 651, 660-62 (1977), we do so here.

II. Double jeopardy claim

¶8             In a two-pronged argument, Wilson contends the double jeopardy provisions of the

United States and Arizona Constitutions bar any review of Judge Banales’s order and, secondly,

any retrial on the charge for which he entered the post-verdict judgment of acquittal. U.S. Const.

                                                4
amend. V; Ariz. Const. art. II, § 10.2 The state counters that Wilson “is precluded from raising

the issue of double jeopardy because this issue was previously adjudicated” in Wilson I.

¶9             Although the state does not specifically articulate the legal basis for its preclusion

argument, it apparently is grounded on the law of the case doctrine. Under that doctrine, a court

acts within its discretion in “refusing to reopen questions previously decided in the same case by

the same court or a higher appellate court” unless “an error in the first decision renders it

manifestly erroneous or unjust or when a substantial change occurs in essential facts or issues, in

evidence, or in the applicable law.” Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II,

176 Ariz. 275, 278, 279, 860 P.2d 1328, 1331, 1332 (App. 1993). Application of law of the

case, although treated “as a procedural doctrine rather than as a substantive limitation on the

court’s power,” generally “promotes an orderly process leading to an end to litigation.” Id. at

278, 860 P.2d at 1331. The doctrine does not apply, however, “if the prior decision did not

actually decide the issue in question, if the prior decision is ambiguous, or if the prior decision

does not address the merits.” Id. at 279, 860 P.2d at 1332; see also Jimenez v. Wal-Mart Stores,

Inc., ___ Ariz. ___, ¶¶12-14, 79 P.3d 673, ¶¶12-14 (App. 2003); Kadish v. Ariz. State Land

Dep’t, 177 Ariz. 322, 327-28, 868 P.2d 335, 340-41 (App. 1993).

¶10            With those principles in mind, we first address the state’s position by summarizing

our analysis and conclusion in Wilson I. In that decision, we recognized that, when a trial court

enters a judgment of acquittal based on insufficient evidence at the close of the state’s case, the


       2
         The double jeopardy provisions in the federal and Arizona constitutions “do not
significantly differ, and the same standard generally is used to analyze both provisions.” State v.
Welch, 198 Ariz. 554, n.2, 12 P.3d 229, n.2 (App. 2000); see also State v. Cook, 185 Ariz. 358,
364-65, 916 P.2d 1074, 1080-81 (App. 1995).

                                                 5
constitutional protection against double jeopardy precludes review or reversal of that ruling on

appeal. Wilson I, ¶16, citing Smalis v. Pennsylvania, 476 U.S. 140, 145-46, 106 S. Ct. 1745,

1749, 90 L. Ed. 2d 116, 122 (1986). As we also noted, however, “[t]he same is not true for a

judgment of acquittal entered after a jury has returned a guilty verdict, when a reversal would

merely reinstate that verdict.” Id. at ¶17, citing United States v. Wilson, 420 U.S. 332, 352-53,

95 S. Ct. 1013, 1026, 43 L. Ed. 2d 232, 247 (1975).

¶11            Thus, a trial court’s grant of a post-verdict judgment of acquittal is subject to

appellate review and reversal if the court abused its discretion. See State ex rel. Hyder v. Superior

Court, 128 Ariz. 216, 225, 624 P.2d 1264, 1273 (1981); see also United States v. DiFrancesco,

449 U.S. 117, 130, 101 S. Ct. 426, 434, 66 L. Ed. 2d 328, 341 (1980) (“A fortiori, the Double

Jeopardy Clause does not bar a Government appeal from a ruling in favor of the defendant after

a guilty verdict has been entered by the trier of fact.”); United States v. Genova, 333 F.3d 750,

756 (7th Cir. 2003) (government’s appeal of post-trial acquittal is constitutionally permissible

when new trial will not ensue, but rather, when reversal merely results in case being remanded

for reinstatement of jury’s guilty verdict and for sentencing); State v. Carrasco, 201 Ariz. 220,

¶1, 33 P.3d 791, ¶1 (App. 2001) (reviewing for abuse of discretion trial court’s post-verdict grant

of defendant’s renewed motion for judgment of acquittal); State v. Sabalos, 178 Ariz. 420, 421,

874 P.2d 977, 978 (App. 1994) (“The state may . . . appeal a post-judgment order granting an

acquittal.”). As the Supreme Court has noted: “No double jeopardy problem was presented in

[United States v.] Wilson because the appellate court, upon reviewing asserted legal errors of the

trial judge, could simply order the jury’s guilty verdict reinstated; no new factfinding would be



                                                 6
necessary, and the defendant therefore would not be twice placed in jeopardy.” Arizona v.

Rumsey, 467 U.S. 203, 211-12, 104 S. Ct. 2305, 2310, 81 L. Ed. 2d 164, 172 (1984).

¶12            In Wilson I, we concluded that Judge Banales had abused his discretion in granting

the post-verdict judgment of acquittal on an erroneous legal basis. Wilson I, ¶22. Although the

judge had found no “‘substantial evidence upon which the jury could base a conviction for

fraudulent scheme or artifice,’” that ruling was premised entirely on Judge Banales’s erroneous

legal interpretation of a durable power of attorney that had been admitted into evidence at trial.

Id. at ¶¶15, 19-22. We noted, however, that “the durable power of attorney, by its express terms,

was not effective” at the time Wilson committed the act that gave rise to the charge—withdrawing

$4,600 from the victim’s bank account. Id. at ¶21. As the state correctly points out, in granting

the post-verdict judgment of acquittal, Judge Banales “fundamentally misapprehended the law as

it applied to the evidence,” and it was “this misapprehension of the law, not his reasoned judgment

of the evidence[,] which colored his decision to nullify the jury verdict.”

¶13            Thus, we concluded in Wilson I that Judge Banales had lacked any proper legal

basis for granting a post-trial judgment of acquittal. Wilson contends, however, that Judge

Banales’s post-trial “determination of evidentiary insufficiency” as the basis for acquittal, whether

“correct or incorrect,” entitles her to dismissal of the charge. We disagree.

¶14            As Wilson points out, in certain circumstances, double jeopardy might “prevent[]

a retrial following an acquittal even though ‘the acquittal was based upon an egregiously erroneous

foundation.’” State v. Millanes, 180 Ariz. 418, 421, 885 P.2d 106, 109 (App. 1994), quoting




                                                 7
Arizona v. Washington, 434 U.S. 497, 503, 98 S. Ct. 824, 829, 54 L. Ed. 2d 717, 726 (1978).3

Those circumstances, however, do not include a post-verdict grant of acquittal. As noted above,

such a ruling is subject to appellate review, Wilson; Hyder; Sabalos, at which time any egregious

errors presumably may and should be addressed. Only in the context of a preverdict acquittal does

a trial court’s action become nonreviewable, because an appeal could result in further fact-finding

proceedings, which would violate the constitutional prohibition against double jeopardy. See

Smalis; Millanes.

¶15            In contrast, as our supreme court stated in Hyder, after a jury returns a guilty

verdict,

               the judge may only redetermine the quantum of evidence if he is
               satisfied that he erred previously in considering improper evidence.
               To find that the evidence was sufficient before the jury got the case,
               but not after, can be justified only on the basis of a mistake of law
               on the part of the court and not fact on the part of the jury.

128 Ariz. at 224, 624 P.2d at 1272. Consequently, because the basis for Judge Banales’s post-

verdict order was legally flawed, we reinstated the jury’s guilty verdict on the fraudulent scheme

and artifice charge. Wilson I, ¶25. In doing so, however, we also stated:

                       Alternatively, to the extent the trial court based its ruling on
               the utter lack of any direct evidence that Wilson had induced or
               effected the withdrawal of funds by means of false pretense or
               misrepresentation, the court similarly abused its discretion. That is


       3
         Similarly, the Double Jeopardy Clause “preclude[s] a second trial once a reviewing court
has determined that the evidence introduced at trial was insufficient to sustain the verdict.” State
v. Ortiz, 120 Ariz. 384, 386, 586 P.2d 633, 635 (1978); see also Burks v. United States, 437 U.S.
1, 16, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1, 13 (1978) (“Since we necessarily afford absolute
finality to a jury’s verdict of acquittal—no matter how erroneous its decision—it is difficult to
conceive how society has any greater interest in retrying a defendant when, on review, it is
decided as a matter of law that the jury could not properly have returned a verdict of guilty.”).

                                                  8
                 precisely the type of fact-based, sufficiency-of-the-evidence ruling
                 that a trial court may not make after the jury has returned a guilty
                 verdict. Hyder, 128 Ariz. at 224, 624 P.2d at 1272; State v.
                 Villarreal, 136 Ariz. 485, 487, 666 P.2d 1094, 1096 (App. 1983).

Wilson I, ¶23.

¶16              As noted in ¶10 above, in Wilson I, we clearly addressed and rejected the first

prong of Wilson’s current argument—that double jeopardy principles precluded our review of

Judge Banales’s ruling. And, by reinstating the jury’s guilty verdict but leaving open the trial

court’s disposition on remand of Wilson’s motion for a new trial, we implicitly rejected the second

prong of Wilson’s current argument—that double jeopardy principles also bar any retrial if the trial

court were to grant that motion, as it ultimately did. Indeed, Wilson acknowledges that this court

previously “ruled against [her]” on the double jeopardy issues she now raises. In short, she cites

no solid legal basis for “reopen[ing] questions previously decided in the same case by the same

court.” Powell-Cerkoney, 176 Ariz. at 278, 860 P.2d at 1331. Moreover, Wilson does not

expressly argue that any of the recognized exceptions to the law of the case doctrine should apply

here. See ¶9, supra.

¶17              Wilson does contend, however, that our supreme court’s more recent decision in

Peak has a “direct impact upon this case.” The decision in Peak was issued well after Wilson I

but several months before Judge Collins’s ruling at issue here. According to Wilson, “Peak is

dispositive of the double jeopardy issue,” precludes any retrial, and mandates dismissal of the

charge against her. Again, we disagree.

¶18              Although she does not frame her argument in these terms, Wilson apparently

suggests Peak represents “a substantial change . . . in the applicable law” so as to avoid


                                                  9
application of law of the case. Powell-Cerkoney, 176 Ariz. at 279, 860 P.2d at 1332. In addition,

a supreme court opinion generally applies to any cases that are pending at the time the opinion is

filed,4 and Wilson’s motion to dismiss was pending before Judge Collins when Peak was issued.

We also note that the parties’ briefs in Wilson I did not address the issue Wilson now

raises—whether any retrial would violate her double jeopardy rights. And Wilson I did not

expressly address or resolve that issue. Under the circumstances, the law of the case doctrine

does not clearly preclude the second prong of Wilson’s argument, to the extent it rests on Peak.

Therefore, we address it.

¶19            In Peak, the defendant was convicted of second-degree murder. After the verdict

was returned, she moved for judgment of acquittal under Rule 20 and also for a new trial under

Rule 24.1, Ariz. R. Crim. P., 17 A.R.S. The trial court granted her motion for a new trial. On

the state’s appeal, this court affirmed that order.

¶20            Thereafter, the defendant asked the trial court to dismiss the second-degree murder

charge because the jury had acquitted her of manslaughter, which she claimed was a lesser-

included offense. She argued a retrial would violate double jeopardy principles. The trial court

denied that motion. On special action review, our supreme court rejected Peak’s argument but

found a “more serious issue” presented: “[W]hether double jeopardy bars retrial when a verdict


       4
         See generally State v. Maloney, 105 Ariz. 348, 358, 464 P.2d 793, 803 (1970) (“newly
announced principle of double jeopardy” applied to “those cases on direct appeal on the date this
decision is rendered” but not “to cases finalized prior thereto”); State v. Swainston, 139 Ariz. 95,
96, 676 P.2d 1153, 1154 (App. 1984) (when new decision applies only prospectively, it “applies
to cases on appeal on the date the decision is rendered as well as to cases tried after that date”);
cf. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649, 661 (1987)
(“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases,
state or federal, pending on direct review or not yet final . . . .”).

                                                 10
is vacated because the evidence was insufficient or because the verdict was against the weight of

the evidence.” 203 Ariz. 83, ¶7, 50 P.3d 833, ¶7. Because the basis for the trial court’s granting

of a new trial was unclear, the supreme court remanded the case for the trial court to clarify its

ruling. In doing so, the supreme court stated:

               If the relief granted by the Order was based solely on the finding
               that the verdict was against the weight of the evidence, the judge
               may proceed with a new trial on any charge not barred by double
               jeopardy. If, on the other hand, the judge based her order on a
               finding that the evidence was insufficient to prove guilt beyond a
               reasonable doubt or that it was both insufficient for that purpose and
               against the weight of the evidence, then double jeopardy would be
               applicable and the second-degree murder charge should be
               dismissed with prejudice.

Id. at ¶11.

¶21            For several reasons, we find Peak distinguishable and not controlling here.

Although both Peak and this case involve a trial court’s post-verdict ruling, the similarity ends

there. In reviewing an ambiguous order granting a new trial, the supreme court in Peak did not

address the issues that we specifically discussed in Wilson I—the limited grounds on which a trial

court may grant a post-verdict judgment of acquittal and the reviewability of such an order.

Contrary to Wilson’s suggestion, Peak neither addressed nor implicitly rejected the many

applicable cases (including United States Supreme Court authority) that clearly authorize appellate

review of a post-verdict judgment of acquittal. See Wilson; Genova; Hyder; Carrasco; Sabalos.

Moreover, the court in Peak did not even cite, let alone overrule or limit, its earlier decision in

Hyder. Indeed, it was unclear whether a Hyder situation even existed in Peak ; that question




                                                 11
would be resolved on remand. Nor did Peak expressly erase or alter the clear distinction Hyder

drew between pre- and post-verdict judgments of acquittal.5

¶22            Perhaps most importantly, unlike the situation in Peak, Wilson’s motion for a new

trial was based strictly on instructional error rather than on any argument that the verdict was

contrary to law or against the weight of the evidence. See Ariz. R. Crim. P. 24.1(c)(1), (4).

Similarly, Judge Collins’s order granting a new trial was based solely on the error in the Portillo

instruction and, unlike the trial court’s ruling in Peak, did not suffer from any confusion or

ambiguity. Wilson, of course, does not suggest that the granting of a new trial on her motion

under Rule 24.1 somehow violates her double jeopardy rights.

¶23            In sum, Peak is clearly distinguishable and does not alter our express conclusions

in Wilson I that Judge Banales had abused his discretion in granting a post-verdict judgment of

acquittal on an erroneous legal ground and had lacked authority to enter that ruling on any other,

fact-based ground. The law of the case doctrine precludes Wilson from now challenging those

determinations in Wilson I. That doctrine also precludes Wilson from challenging the result in

Wilson I—reinstatement of the jury’s guilty verdict. And Peak does not undermine our implicit

determination in Wilson I, and confirmed here, that a retrial (based on Wilson’s own motion for

a new trial) on the charge for which the jury previously found her guilty would not offend double


       5
         The trial court in Peak apparently recognized that distinction. As our supreme court
observed, in ruling on Peak’s post-trial motions, the trial court had “indicated [it] had made no
error of law in denying [her] Rule 20 motion to dismiss at the close of the state’s case.” Peak,
203 Ariz. 83, n.1, 50 P.3d 833, n.1. Presumably, that is why the trial court had “granted
Defendant’s motion for a new trial” under Rule 24.1, but not the separate, post-trial motion for
judgment of acquittal under Rule 20(b). Id. at ¶3. Nonetheless, our supreme court ordered the
trial court to clarify its ruling because its order granting the new trial “could be interpreted in
several ways.” Id. at ¶11.

                                                12
jeopardy principles. Accordingly, treating this appeal as a petition for special action, we accept

jurisdiction but deny relief.



                                                 _______________________________________
                                                 JOHN PELANDER, Presiding Judge

CONCURRING:



_______________________________________
PHILIP G. ESPINOSA, Chief Judge



_______________________________________
JOSEPH W. HOWARD, Judge




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