                                                                  FILED BY CLERK
                            IN THE COURT OF APPEALS                   DEC 26 2006
                                STATE OF ARIZONA
                                                                      COURT OF APPEALS
                                  DIVISION TWO                          DIVISION TWO


THE STATE OF ARIZONA,                      )
                                           )
                               Appellee,   )         2 CA-CR 2005-0131
                                           )         DEPARTMENT B
                      v.                   )
                                           )         OPINION
ALVARO FELIX,                              )
                                           )
                              Appellant.   )
                                           )


            APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

                               Cause No. CR200300852

                           Honorable Boyd T. Johnson, Judge

                           REVERSED AND REMANDED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Alan L. Amann                                        Tucson
                                                              Attorneys for Appellee

Harriette P. Levitt                                                          Tucson
                                                              Attorney for Appellant


E C K E R S T R O M, Presiding Judge.
¶1            A jury found Alvaro Felix guilty of second-degree murder. After the jury also

found the existence of three aggravating circumstances, the trial court sentenced him to the

maximum, aggravated term of twenty-two years of imprisonment. Felix appealed his

conviction and sentence on the ground the trial court had violated his double jeopardy rights

by rejecting his guilty plea after accepting it in a previous proceeding. In a memorandum

decision filed November 15, 2006, we reversed Felix’s conviction, vacated the order

rejecting the guilty plea, and remanded the case for further proceedings consistent with our

decision. State v. Felix, No. 2 CA-CR 2005-0131 (memorandum decision filed Nov. 15,

2006). Felix then filed a motion to have us designate the memorandum decision as an

opinion. Receiving no objection from the state, we grant the motion in part. Because our

resolution of the question whether Felix was required to seek relief on his double jeopardy

claim exclusively by way of special action merits publication, see Rule 31.26, Ariz. R. Crim.

P., 17 A.R.S., we publish that portion of the decision.

¶2            A Pinal County grand jury charged Felix with a single count of second-degree

murder. He entered into an agreement with the state to plead guilty to the offense of

dangerous manslaughter with a prison sentence of not less than sixteen nor more than

twenty-one years. During the change-of-plea hearing, the trial court explained to Felix that

the minimum sentence required by the agreement was an aggravated sentence. Felix told the

court he had no questions about the agreement. No discussion about potential aggravating

circumstances, or how they would be found, occurred during the change-of-plea hearing.




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¶3            The judge accepted the guilty plea on March 31, 2004, stating, “[I]t is . . . my

practice at the time of the change of plea to accept the plea agreement, enter it of record so

that neither side can back out, leaving only the Court’s discretion, of course, to reject the

sentencing provisions.” After the court accepted Felix’s guilty plea but before the

sentencing hearing, the United States Supreme Court decided Blakely v. Washington, 542

U.S. 296, 124 S. Ct. 2531 (2004).

¶4            In response to Blakely, Felix moved to vacate the sentencing hearing and set

a hearing to evaluate the status of his guilty plea, arguing that, absent a jury trial to

determine aggravating circumstances, the court could not sentence him to more than the

presumptive term of 10.5 years. Felix asked that the “Court use every means to avoid

vacating []his plea” and suggested that the court conduct a jury trial on aggravating and

mitigating circumstances. Throughout the proceedings, Felix maintained that the state had

no right to withdraw from the plea agreement because jeopardy had attached when the court

accepted his guilty plea. During the hearing held on the issue, Felix also argued that double

jeopardy prohibited the court from rejecting the guilty plea.

¶5            On August 16, 2004, the trial court stated it could not sentence Felix under

the terms of the plea agreement because the minimum stipulated sentence required a

Blakely-compliant finding of aggravating circumstances and Felix had not admitted any. The

court then rejected the guilty plea and set the case for trial. Felix was convicted.

¶6            On appeal, Felix argues, inter alia, that the trial court violated his double

jeopardy rights by rejecting his guilty plea after previously accepting it. As a remedy for that


                                               3
error, Felix contends he was entitled to reversal of his conviction and reinstatement of his

guilty plea. For reasons we have articulated in our memorandum decision, we agree.

¶7            Citing State v. Moody, 208 Ariz. 424, 94 P.3d 1119 (2004), the state maintains

Felix waived his double jeopardy claim because he did not seek special action relief after the

trial court rejected his guilty plea. In Moody, the supreme court rejected the defendant’s

double jeopardy claim, which was based on alleged prosecutorial misconduct, because

(1) the defendant had neither moved for a mistrial when the alleged misconduct occurred

nor sought special action relief because of it, and (2) the defendant had not demonstrated

that a mistrial would have been justified by the alleged misconduct even had he requested

it. Id. ¶¶ 21-23. Here, by contrast, Felix has not alleged any trial error that could have been

remedied by a motion for a mistrial. Instead, he vigorously asserted his claim in the trial

court at the only appropriate time—before trial commenced.

¶8            Nonetheless, the state maintains that all interlocutory double jeopardy claims

must be raised by special action and that Felix waived his claim by failing to file a special

action in this court before his trial commenced. Although Arizona courts have stated that

“‘a petition for special action is the appropriate vehicle for a defendant to obtain judicial

appellate review of an interlocutory double jeopardy claim,’” id. ¶ 22, quoting Nalbandian

v. Superior Court, 163 Ariz. 126, 130, 786 P.2d 977, 981 (App. 1989), no case has ever

held that a special action petition is the exclusive vehicle for raising such a claim. In fact,

Arizona courts have addressed double jeopardy claims on appeal and have rejected or

disfavored technical arguments that would have precluded appellate review of those claims


                                              4
on their merits. See, e.g., State v. Wilson, 207 Ariz. 12, ¶¶ 4, 6-7, 82 P.3d 797, 799 (App.

2004) (treating appeal raising double jeopardy claim as special action in response to state’s

assertion that we lacked jurisdiction to review denial of defendant’s motion to dismiss

charges on appeal); State v. Millanes, 180 Ariz. 418, 421, 885 P.2d 106, 109 (App. 1994)

(“[T]he purpose for the general rule of waiver arising from the failure to raise the issue in the

trial court has no application to a claim of double jeopardy.”).

¶9            The state maintains that our supreme court in Moody held that interlocutory

claims of double jeopardy must be raised by special action. There, the court observed it had

“never reviewed a double jeopardy claim based on prosecutorial misconduct if the defendant

had not previously moved for mistrial or sought relief by special action from the trial court’s

denial of his motion to dismiss on those grounds.” 208 Ariz. 424, ¶ 23, 94 P.3d at 1133

(emphasis added). But the court thereby offered two separate avenues by which the

defendant could have preserved a trial error purportedly amounting to a double jeopardy

violation—one of them by a motion for mistrial made at the appropriate time. By raising and

arguing his double jeopardy claim in the trial court at the appropriate time, Felix likewise

gave the trial court ample opportunity to correct the error—the procedural equivalent of

seeking a mistrial on a trial claim of prosecutorial misconduct.

¶10           Not only have our courts not expressly required that double jeopardy claims

be raised by special action, we find little logic in imposing such a rule. The exercise of our

jurisdiction to address an issue raised by special action is discretionary—we may decline

jurisdiction and thereby render no decision on the merits at all. See Jackson v. Schneider,


                                               5
207 Ariz. 325, ¶ 4, 86 P.3d 381, 382 (App. 2004) (“This Court retains the broad discretion

to decline jurisdiction.”); Blake v. Schwartz, 202 Ariz. 120, ¶ 7, 42 P.3d 6, 8 (App. 2002)

(acceptance of special action jurisdiction is “highly discretionary”). By contrast, once our

jurisdiction has been properly triggered by a criminal appeal, we must address that appeal.

See Ariz. Const. art. II, § 24 (“In criminal prosecutions, the accused shall have . . . the right

to appeal in all cases . . . .”); Wilson v. Ellis, 176 Ariz. 121, 123, 859 P.2d 744, 746 (1993)

(“Clearly, art. 2, § 24 guarantees some form of appellate relief.”); see also A.R.S. § 12-

120.21(A) (court of appeals has jurisdiction in specified criminal actions appealed from

superior court except death penalty cases). Were we to adopt the state’s suggested rule and

examine interlocutory double jeopardy claims only by special action, we would require an

accused to vindicate those claims by a procedural avenue that provides a less robust

guarantee that the claims would be considered on their merits. And it would make little

sense to impose such a procedural limitation on those seeking to assert their fundamental

constitutional protection against double jeopardy when the law imposes no similar limitation

on appellate review of most other claims of pretrial error. See Benton v. Maryland, 395

U.S. 784, 796, 89 S. Ct. 2056, 2063 (1969) (protection against double jeopardy is

“‘fundamental to the American scheme of justice’”), quoting Duncan v. Louisiana, 391

U.S. 145, 149, 88 S. Ct. 1444, 1447 (1968).

¶11           Moreover, our jurisprudence has characterized a special action as an

appropriate vehicle for raising double jeopardy claims only because we have recognized the

inadequacy of post-trial appeals in remedying some of the harms of a double jeopardy


                                               6
violation—forcing a defendant to endure the strain, embarrassment, and expense of an

unlawful trial. See Moody, 208 Ariz. 424, ¶ 22, 94 P.3d at 1133. Thus, the option exists

for an accused to seek interlocutory relief from all the potential harms of a double jeopardy

violation. But, because a defendant may also suffer harm from the post-trial consequences

of a conviction arising from a double jeopardy violation, a defendant may have substantial

cause to raise a double jeopardy claim on appeal. We can see no reason to deprive an

accused of the right to seek relief from such consequences on appeal merely because our law

also provides the option of raising that claim at an earlier stage in the proceedings.

¶12           The state suggests that, if we entertain Felix’s claim on appeal, we will permit

him the strategic advantage of having taken “his chances on an acquittal at trial.” But,

because a successful claim for an interlocutory violation of the Double Jeopardy Clause

would have barred the trial altogether, we cannot fathom what advantage Felix, or any

similarly situated defendant, would gain from such a strategy. See Millanes, 180 Ariz. at

421, 885 P.2d at 109 (because successful double jeopardy claim prohibits further

proceedings, “the purpose of the general rule of waiver arising from the failure to raise the

issue in the trial court has no application to a claim of double jeopardy”).

¶13           Finally, although our case law counsels us to preserve incentives for litigants

to raise all issues before the trial court and afford it the earliest opportunity to remedy any

error, no similar logic suggests that interlocutory claims must be raised in an appellate court

at the first conceivable opportunity in order to avoid waiver. To the contrary, we generally

disfavor interlocutory appeals in criminal cases because they have great potential to delay


                                              7
and disrupt an orderly trial process—and are therefore “‘“especially inimical to the effective

and fair administration of the criminal law.”’” Nalbandian, 163 Ariz. at 128, 786 P.2d at

979, quoting Abrey v. United States, 431 U.S. 651, 657, 97 S. Ct. 2034, 2039 (1977),

quoting DiBella v. United States, 369 U.S. 121, 126, 82 S. Ct. 654, 658 (1962). And, we

would risk undermining the authority and stature of the trial bench were we to permit

litigants to generally conclude that they must immediately challenge pretrial rulings in

criminal cases by special action on penalty of their waiver. For those reasons, the pursuit

of interlocutory appellate relief by way of special action must remain an exceptional, rather

than a presumptive, avenue for challenging pretrial error in criminal cases. We are therefore

reluctant to add to the very short list of criminal claims arising in superior court that must

be raised by special action.

¶14           For the foregoing reasons, we reject the state’s contention that Felix waived

any appellate remedy when he failed to raise his double jeopardy claim in a special action.



                                              ____________________________________
                                              PETER J. ECKERSTROM, Presiding Judge

CONCURRING:



____________________________________
J. WILLIAM BRAMMER, JR., Judge



____________________________________
PHILIP G. ESPINOSA, Judge

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