                                                                   FILED BY CLERK
                                                                     NOV 24 2008
                                                                      COURT OF APPEALS
                             IN THE COURT OF APPEALS                    DIVISION TWO
                                 STATE OF ARIZONA
                                   DIVISION TWO


THE STATE OF ARIZONA,                       )        2 CA-CR 2008-0058
                                            )        2 CA-CR 2008-0059
                                Appellee,   )        (Consolidated)
                                            )        DEPARTMENT A
                   v.                       )
                                            )        OPINION
JERRY DON BRYANT,                           )
                                            )
                               Appellant.   )
                                            )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                        Cause Nos. CR-20053917 and CR-20060148

                    Honorable Barbara Sattler, Judge Pro Tempore

                                     VACATED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Julie A. Done                                       Phoenix
                                                              Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender
 By John F. Palumbo                                                          Tucson
                                                             Attorneys for Appellant


H O W A R D, Presiding Judge.
¶1               Appellant Jerry Bryant appeals from the trial court’s order granting the

Department of Public Safety’s (DPS) motion to vacate a prior order expunging Bryant’s

deoxyribonucleic acid (DNA) profile from the state DNA database. Bryant argues that the

trial court erred in vacating its earlier expungement order because the court lacked

jurisdiction to grant DPS’s motion. We agree and vacate the trial court’s order dated January

24, 2008.1

                                          Background

¶2               Between November 2005 and February 2006, Bryant was convicted of various

class six undesignated drug offenses. He was required to submit DNA samples pursuant to

A.R.S. § 13-610.

¶3               On October 1, 2007, the trial court terminated Bryant’s probation in both cases,

designated the offenses misdemeanors, and ordered Bryant’s DNA profile expunged from

the Arizona DNA identification system pursuant to § 13-610(K).2 Apparently unbeknownst

to the trial court, however, § 13-610 had been amended, and the new version became

effective on September 19, 2007. See 2007 Ariz. Sess. Laws, ch. 261, § 2. On October 29,

2007, DPS filed a motion to reconsider the trial court’s order expunging Bryant’s DNA

profile, pointing out that the DNA expungement statute had been amended and, under the

current version, expungement of a DNA profile was no longer permitted when an offense



       1
           This order was dated January 24 but filed January 29.
       2
           This order was dated October 1 but filed October 2.

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was designated a misdemeanor. On January 24, 2008—115 days after ordering Bryant’s

DNA profile expunged from the state database—the trial court granted DPS’s motion.

Bryant appeals from this ruling. We have jurisdiction over this appeal pursuant to A.R.S. §

13-4033(A)(3).

                                          Discussion

¶4            On appeal, Bryant argues that, to challenge the trial court’s order expunging

his DNA profile, the state was required to appeal the order. Because the state did not appeal

but instead filed a motion for reconsideration after the time for appeal had run, Bryant

contends the trial court lacked jurisdiction to grant the state’s motion to reverse its previous

order. Subject matter jurisdiction is a question of law, which we review de novo. State v.

Flores, 218 Ariz. 407, ¶ 6, 188 P.3d 706, 709 (App. 2008).

¶5            Because the legislative change to § 13-610 had become effective before the

trial court entered its order, the October 1 expungement order was illegally lenient to the

defendant.3 State v. House, 169 Ariz. 572, 573, 821 P.2d 233, 234 (App. 1991) (“An

unlawful sentence is one that is outside the statutory range.”). The state has two procedural

vehicles to challenge an illegally lenient sentence: an appeal or a timely motion pursuant to

Rule 24.3, Ariz. R. Crim. P. See State v. Dawson, 164 Ariz. 278, 285-86, 792 P.2d 741, 748-

49 (1990). If the state fails to file a timely appeal or Rule 24.3 motion, the sentence becomes


       3
        We accept for purposes of this appeal the state’s contention that the expungement
order is a sentencing order. We further accept Bryant’s concession that the statutory
amendment applies to the October 1 order.

                                               3
final. See State v. Ward, 211 Ariz. 158, ¶ 11, 118 P.3d 1122, 1126 (App. 2005) (defining

“final”).

¶6             Acknowledging that it failed to appeal Bryant’s expungement order, the state

argues DPS’s motion was proper because it was not filed by the state and, as a nonparty, DPS

was not required to appeal from the expungement order. But DPS is a department of the

state, A.R.S. § 41-1711, and the state was a party to the action. Therefore, we find no basis

in law for the state’s argument.

¶7             Moreover, our supreme court has held that the state must appeal in order to

challenge an illegally lenient sentence. Dawson, 164 Ariz. at 286, 792 P.2d at 749. If, for

example, we allowed the Department of Corrections as the “keeper of inmates” to later

challenge an illegally lenient sentence, that would completely undermine the holding in

Dawson. See A.R.S. § 41-1604(A)(2) (duties of department include having custody of adult

offenders). Similarly, allowing DPS as custodian of the DNA database to challenge this

unappealed and final order would undermine the rationale in Dawson and the finality of the

order. See A.R.S. § 41-1750 (DPS responsible for storage of criminal justice information).

¶8             The state further argues that DPS’s motion was proper under Rule 24.3. Under

that rule, “[t]he court may correct an unlawful sentence . . . within 60 days of the entry of

judgment and sentence but before the defendant’s appeal, if any, is perfected.” Here, the trial

court did not enter its corrective order until 115 days after the initial order. Because the trial

court did not issue its order correcting Bryant’s sentence within sixty days of entry of


                                                4
sentence, Rule 24.3 does not provide the trial court the authority to modify its initial order

expunging Bryant’s DNA profile.

¶9            Conceding that the trial court vacated its prior expungement order after the

sixty-day time limit imposed by Rule 24.3, the state nonetheless argues the court was still

entitled to correct Bryant’s sentence because the motion was filed within sixty days and the

court’s jurisdiction to correct its illegal sentence did not simply “disappear.” But Rule 24.3

requires the court actually to correct the illegal sentence within sixty days of sentencing. In

contrast, Rule 24.2, Ariz. R. Crim. P., allows the court to vacate a judgment, on other

grounds not pertinent here, based on a motion filed no later than sixty days after sentencing.

We presume the supreme court understood the difference in drafting the rule and intended

that the trial court enter its order under Rule 24.3 within the sixty-day period.

¶10           The cases the state cites also fail to support its position. In State v. Falco, 162

Ariz. 319, 320-21, 783 P.2d 258, 259-60 (App. 1989), when the appellate court stated that

the passage of sixty days did not divest the trial court of jurisdiction to modify an unlawful

sentence, it was referring to the fact that the trial court had amended the defendant’s previous

illegal sentence within the sixty-day time limit imposed by Rule 24.3. Similarly, in State v.

Suniga, 145 Ariz. 389, 392-93, 701 P.2d 1197, 1200-01 (App. 1985), the defendant was

resentenced within sixty days. Here, however, the trial court granted the state’s motion to

vacate expungement of Bryant’s DNA profile 115 days after the original expungement order,

beyond the time required by Rule 24.3, Falco, and Suniga.



                                               5
¶11            Nevertheless, because DPS moved to vacate the trial court’s expungement

order within the sixty-day limit required by Rule 24.3, the state contends the trial court was

put on notice of its sentencing error, that this notice was “sufficient to preserve a challenge

to the trial court’s sentence,” and that the challenge was not waived. While it is true the trial

court was on notice of its sentencing error, it did not order the error corrected until well after

the sixty-day time limit of Rule 24.3 had expired. As we have explained, Rule 24.3 requires

more than that the state simply notified the court of an unlawful sentence. Under Rule 24.3,

the trial court itself must act within sixty days to correct an unlawful sentence, or the

sentence will stand.

¶12            The state also argues that invalidating the trial court’s order vacating the

expungement of Bryant’s DNA profile would be “a harsh and unfair technical application

of Rule 24.3” because Bryant contributed to the delay in vacating the expungement order

when he requested a forty-five-day extension to respond to the state’s motion for

reconsideration. But Rule 24.3 does not provide any exceptions to its time requirement. And

the state waited twenty-nine days—nearly half the time allotted in the rule—to move for

reconsideration of the October 1 expungement order. Additionally, the state did not oppose

Bryant’s request for an extension or ask the court to rule sooner. We do not believe that

requiring parties to comply with procedural rules is unfairly technical or harsh.

¶13            Finally, the state contends the trial court had jurisdiction to vacate its October

1 order expunging Bryant’s DNA profile because the amendment of the statute had deprived


                                                6
the trial court of jurisdiction to issue that order; as a result, it maintains the October 1 order

was void and could therefore be set aside or vacated “at any time . . . in the court where it

was rendered.” State ex rel. Morrison v. Superior Court, 82 Ariz. 237, 241, 311 P.2d 835,

838 (1957); see also State v. Carbajal, 184 Ariz. 117, 119, 907 P.2d 503, 505 (App. 1995)

(noting, in dicta, that sentence was “illegal and void”). But Bryant counters that the order

is merely voidable or erroneous, not void. See Cockerham v. Zikratch, 127 Ariz. 230, 234,

619 P.2d 739, 743 (1980) (“Confusion between void and merely erroneous judgments may

stem from courts’ often loose usage of the word ‘void.’”). An order is void “if the court

entering it lacked jurisdiction: (1) over the subject matter, (2) over the person involved, or

(3) to render the particular judgment or order entered.” State v. Cramer, 192 Ariz. 150, ¶ 16,

962 P.2d 224, 227 (App. 1998). An order is voidable or erroneous, on the other hand, when

the trial court has jurisdiction over the subject matter and parties but the order “was subject

to reversal on timely direct appeal.” Cockerham, 127 Ariz. at 234, 619 P.2d at 743; see also

Cramer, 192 Ariz. 150, ¶ 16, 962 P.2d at 227. And a judgment “that is voidable is binding

and enforceable and has all the ordinary attributes of a valid judgment until it is reversed or

vacated.” Cramer, 192 Ariz. 150, ¶ 16, 962 P.2d at 227.

¶14            Subject matter jurisdiction is “the power of a court to hear and determine a

controversy.” Marks v. LaBerge, 146 Ariz. 12, 15, 703 P.2d 559, 562 (App. 1985). Our

supreme court has recognized that the word “jurisdiction,” like the word “void,” has

frequently been misused by our courts. See Marvin Johnson, P.C. v. Myers, 184 Ariz. 98,



                                                7
101, 907 P.2d 67, 70 (1995) (prior usage of word “jurisdiction” by supreme court and court

of appeals was “inexact”); see also Collins v. Superior Court, 48 Ariz. 381, 393, 62 P.2d 131,

137 (1936) (“[T]here have been instances where appellate tribunals have used the word

‘jurisdiction’ when, in reality, they meant . . . a very different thing.”). And an order is

voidable, rather than void, when the trial court has subject matter jurisdiction but errs in

issuing an order. Cramer, 192 Ariz. 150, ¶ 16, 962 P.2d at 227. Unlike a void order that can

be vacated at any time, a voidable order must be modified on appeal or pursuant to Rule 24.3.

¶15           Here, the trial court’s original expungement order was not void, but voidable:

even though the expungement order was erroneous and subject to reversal, the trial court had

jurisdiction to sentence Bryant and enter an order regarding his DNA profile. And unlike

void judgments which can be modified at any time, that order, even if voidable and

erroneous, could only be modified on appeal or by proper and timely post-judgment motion.

See Cockerham, 127 Ariz. at 234-35, 619 P.2d at 743-44 (erroneous judgment, as opposed

to void judgment, subject to reversal on timely appeal). Accordingly, because the state

allowed the trial court’s erroneous order expunging Bryant’s DNA profile from the state

database to become final without challenging it on appeal or pursuant to Rule 24.3, it remains

binding and enforceable.

¶16           Quoting this court’s decision in State v. Vargas-Burgos, 162 Ariz. 325, 326,

783 P.2d 264, 265 (App. 1989), the state nonetheless argues that the October 1 expungement

order was void because, “when a sentencing court fails to abide by the mandates of the



                                              8
applicable statute, it has exceeded its jurisdiction.” And a judgment is void when the court

exceeds its jurisdiction. City of Flagstaff v. Babbitt, 8 Ariz. App. 123, 127, 443 P.2d 938,

942 (1968).

¶17           But the question in Vargas-Burgos was whether the sentencing issue had been

forfeited because it was not raised below, and the court only needed to find that the trial court

had committed fundamental error by failing to impose a statutorily required fine. 162 Ariz.

at 326-27, 783 P.2d at 265-66; see also Dawson, 164 Ariz. 278, 281, 792 P.2d 741, 744

(citing Vargas-Burgos for proposition that illegal sentence constitutes fundamental error);

see also State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369 (App. 2002) (illegal sentence

constitutes fundamental error); State v. Bouchier, 159 Ariz. 346, 347, 767 P.2d 233, 234

(App. 1989) (same). Because the trial court in Vargas-Burgos had jurisdiction to sentence

the defendant, we conclude that we used the word “jurisdiction” imprecisely there. Nor do

other cases cited by the state require a different conclusion. In Carbajal, 184 Ariz. at 118-19,

907 P.2d at 504-05, the court only needed to determine that the illegal sentences were

erroneous and therefore correctable on appeal or pursuant to Rule 24.3. Therefore, the court

in Carbajal also used the word “void” imprecisely. 184 Ariz. at 119, 907 P.2d at 505. And

neither in Suniga, 145 Ariz. 389, 701 P.2d 1197, nor in State v. Thomas, 142 Ariz. 201, 688

P.2d 1093 (App. 1984), did the court even use the word “void.” Accordingly, none of these

cases requires us to find that the trial court’s expungement order is void.




                                               9
                                     Conclusion

¶18        In light of the foregoing, we vacate the trial court’s January 24 order.




                                           ____________________________________
                                           JOSEPH W. HOWARD, Presiding Judge




CONCURRING:




____________________________________
JOHN PELANDER, Chief Judge




____________________________________
J. WILLIAM BRAMMER, JR., Judge




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