                                                                      FILED BY CLERK
                            IN THE COURT OF APPEALS                     MAY 10 2013
                                STATE OF ARIZONA
                                  DIVISION TWO                            COURT OF APPEALS
                                                                            DIVISION TWO



PATRICK WHILLOCK,                                )
                                                 )
                                   Petitioner,   )   2 CA-SA 2013-0031
                                                 )   DEPARTMENT B
                     v.                          )
                                                 )   OPINION
HON. KEITH BEE, a Justice of the Peace of        )
Pima County Consolidated Justice Court and       )
HON. PAUL TANG, Judge of the Superior            )
Court of the State of Arizona, in and for the    )
County of Pima,                                  )
                                                 )
                               Respondents,      )
                                                 )
                    and                          )
                                                 )
THE STATE OF ARIZONA,                            )
                                                 )
                       Real Party in Interest.   )
                                                 )


                          SPECIAL ACTION PROCEEDING

                        Pima County Cause No. CR20124037001
                      Pima County Justice Court No. CR12-201648

                  JURISDICTION ACCEPTED; RELIEF GRANTED

Kimminau Law Firm, P.C.
 By Chris J. Kimminau                                                           Tucson
                                                                 Attorney for Petitioner

Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                               Tucson
                                                     Attorneys for Real Party in Interest
K E L L Y, Judge.


¶1            In this special action, petitioner Patrick Whillock challenges rulings by the

respondent judges in regard to his appeal from a conviction of animal cruelty in the

justice court. For the reasons that follow, we accept special action jurisdiction and grant

relief.

¶2            Whillock filed a timely notice of appeal from his conviction for animal

cruelty following a bench trial in Pima County Consolidated Justice Court. He then filed

a request for a trial de novo pursuant to Rule 7(g), Ariz. Super. Ct. R. App. P.–Crim.,

asserting the record was insufficient for an appeal because his copy of the trial transcript

was missing portions of the proceedings. That request was forwarded to the Pima County

Superior Court, and Respondent Judge Paul Tang denied it, concluding the audio

recording of the trial was complete.1 Whillock then filed in the superior court a “Notice

to the Court and Request for Briefing Schedule.” Respondent Tang, treating that motion

as a “motion for reconsideration,” denied it, concluding Whillock’s request for a trial de

novo “beg[a]n” the “appellate process” and Whillock therefore was not “permitted to

proceed anew by filing a brief for an appeal on the merits.” Respondent Tang further

concluded he had no authority to set a briefing schedule and the time for filing an




          1
        Whillock acknowledges he improvidently requested a trial de novo. He asserts
that his copy of the trial transcript was incomplete because the transcriptionist’s
equipment malfunctioned.

                                             2
appellate memorandum pursuant to Rule 8(a)(2), Ariz. Super. Ct. R. App. P.–Crim., had

elapsed.

¶3            Whillock then filed in the justice court a motion seeking additional time to

file his appellate memorandum, citing Rule 8(b), Ariz. Super. Ct. R. App. P.–Crim.

Respondent Justice of the Peace Keith Bee denied that request, citing Respondent Tang’s

ruling denying Whillock’s request to set a briefing schedule.          This special action

followed.

¶4            Special action jurisdiction is appropriate when, as here, the petitioner has

no “equally plain, speedy, and adequate remedy by appeal.” Ariz. R. P. Spec. Actions 1;

see also A.R.S. § 22-371(A) (providing “defendant in a criminal action may appeal to the

superior court from the final judgment of a justice or municipal court”); § 22-375(B)

(limiting appeals “from the judgment of the superior court given in an action appealed

from a justice of the peace or a police court”). Moreover, the issues raised largely present

pure questions of law, which are appropriate for special action review. See State v.

Nichols, 224 Ariz. 569, ¶ 2, 233 P.3d 1148, 1149 (App. 2010). For these reasons, we

accept jurisdiction of this special action.

¶5            Whillock asserts that Respondent Tang “should have permitted the appeal

to go forward,” and that Respondent Bee “should have granted [his] request to set a new

deadline for the memorandum on appeal.”2 Relying on State v. Eby, 226 Ariz. 179, 244


       2
       Respondent Bee was bound by Respondent Tang’s ruling and had no discretion to
grant Whillock’s request for additional time to file his appellate memorandum. See
Tovrea v. Superior Court, 101 Ariz. 295, 297, 419 P.2d 79, 81 (1966). Although the
                                          3
P.3d 1177 (App. 2011), the state responds that Whillock’s request for a trial de novo

“was [his] appeal” and that the respondents “were not required to extend the time for

another appeal.” We cannot agree with the state’s position.

¶6            Nothing in the applicable rules suggests that a request for a trial de novo

precludes the filing of an appellate memorandum. Indeed, the rules clearly contemplate

that a defendant may seek a trial de novo before filing that memorandum. Pursuant to

Rule 7(g), Ariz. Super. Ct. R. App. P.–Crim., a defendant may request that the trial court

order a trial de novo on the basis that “the record is insufficient for an appeal on the

record.” Similarly, a defendant may request in the superior court a trial de novo if the

record is “insufficient to determine the issues.” Ariz. Super. Ct. R. App. P.–Crim. 2(b),

(d).   Rule 8(a)(2), Ariz. Super. Ct. R. App. P.–Crim., requires that an appellate

memorandum be filed “within 60 calendar days from the deadline to file the notice of

appeal.” But subsection (c)(4) of that rule states that procedural motions “suspend[]” the

deadline to file that memorandum. A procedural motion, as defined by the rule, is a

motion “that may determine whether the appeal should go forward.” Ariz. Super. Ct. R.

App. P.–Crim. 8(c)(1). A request for a trial de novo clearly falls within that definition

because it asks the superior court to consider whether the record is sufficient to permit an

appeal.


proper avenue to seek relief from Respondent Bee’s order would have been to petition for
special action relief in the superior court, see Ariz. R. P. Spec. Actions 4, 7(b), we
nonetheless accept jurisdiction of that issue because Respondent Bee had no discretion to
disregard an order from the superior court and our decision thus depends entirely on
whether Respondent Tang was correct. See Ariz. R. P. Spec. Actions 7(b).

                                             4
¶7            Additionally, nothing in Eby requires a different result. The state takes out

of context our statement in Eby that a trial de novo in superior court constitutes an appeal.

See 226 Ariz. 179, ¶ 5, 244 P.3d at 1178-79. We determined in Eby that we lacked

jurisdiction over an appeal following a trial de novo in the superior court. Id. ¶¶ 5, 7.

Although we characterized a trial de novo as an “appeal,” we did so solely for the

purposes of determining that a trial de novo in the superior court held pursuant to Rule

10(b), Ariz. Super. Ct. R. App. P.–Crim., did not alter the nature of the proceeding for the

purpose of determining whether we had appellate jurisdiction pursuant to A.R.S. § 22-

375. We did not suggest that a request for a trial de novo, if denied, precludes an appeal

on the record from a justice court as provided by A.R.S. § 22-371(A). Indeed, we noted

that a party is permitted to appeal in the superior court a judgment following a trial de

novo in the justice court. Eby, 226 Ariz. 179, ¶ 6, 244 P.3d at 1179.

¶8            For the foregoing reasons, we conclude Respondent Tang erred in

determining that Whillock’s request for a trial de novo constitutes his appeal and

therefore precludes him from filing an appellate memorandum. See Ariz. R. P. Spec.

Actions 3(c) (relief warranted if respondent abuses discretion); Salvation Army v. Bryson,

229 Ariz. 204, ¶ 8, 273 P.3d 656, 659 (App. 2012) (error of law constitutes abuse of

discretion). We therefore grant relief and vacate Respondent Tang’s and Respondent

Bee’s orders precluding Whillock from filing an appellate memorandum. We instruct the

justice court to determine, in light of Rule 8(c)(4), Ariz. Super. Ct. R. App. P.–Crim., the




                                             5
due date for Whillock’s memorandum on appeal and, if necessary, to reconsider his

request pursuant to Rule 8(b) for additional time to file that memorandum.3




                                            /s/ Virginia C. Kelly
                                            VIRGINIA C. KELLY, Judge


CONCURRING:

/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge




      3
        In light of our resolution, we need not consider Whillock’s argument that the
respondents erred in implicitly concluding he had waived his right to an appeal by
requesting a trial de novo.
                                            6
