                               IN THE
             ARIZONA COURT OF APPEALS
                             DIVISION ONE


                    DANIEL JAY EARL, Petitioner,

                                   v.

                THE HONORABLE JEANNE GARCIA,
                  Judge of the SUPERIOR COURT OF
                 THE STATE OF ARIZONA, in and for
             the County of MARICOPA, Respondent Judge,

              STATE OF ARIZONA, Real Party in Interest.

                         No. 1 CA-SA 13-0096
                          FILED 5-15-2014


 Petition for Special Action from the Superior Court in Maricopa County
               No. CR2011-118323-001, CR2012-007897-001
                    The Honorable Jeanne Garcia, Judge

                     JURISDICTION DECLINED


                              COUNSEL

David Goldberg Attorney at Law, Fort Collins, CO
By David Goldberg
Counsel for Petitioner

Maricopa County Attorney's Office, Phoenix
By Karen Kemper
Counsel for Real Party in Interest
                     EARL v. HON. GARCIA/STATE
                         Opinion of the Court



                                 OPINION

Judge Diane M. Johnsen delivered the opinion of the Court, in which
Judge Randall M. Howe specially concurred. Judge Peter B. Swann
dissented.


J O H N S E N, Judge:

¶1             Rule 8 of the Arizona Rules of Criminal Procedure requires a
defendant to be tried within a specified time period, and Rule 16.6(a)
precludes the prosecution from voluntarily dismissing a charge to avoid
the Rule 8 deadline. Daniel Jay Earl argues the State violated these rules
by dismissing a theft charge against him on the eve of the deadline
because it was unprepared to go to trial and re-filing the same charge to
start the Rule 8 clock running anew. We decline jurisdiction of Earl’s
petition for special action.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Earl was charged by information in June 2011 with theft of a
new car worth more than $25,000, in violation of Arizona Revised Statutes
("A.R.S.") section 13-1802 (2014). 1 The information charged that Earl,
"without lawful authority, knowingly obtained [the car], by means of a
material misrepresentation . . . with the intent to deprive" a Phoenix car
dealership of the vehicle. The prosecution’s theory was that Earl falsely
identified his employer on a financing application he submitted to the
dealership when he was negotiating to buy the car and then refused to
return the car after the discrepancy was discovered and the deal fell
through.

¶3            Trial was set for August 8, 2012. At a settlement conference
on July 16, the State learned facts undercutting its theory of the case. After
the settlement conference failed, the superior court held a final trial
management conference on July 31, at which the prosecutor said there
were no pretrial matters to address and that he "want[ed] to affirm" the



1      Absent material revision after the date of an alleged offense, we cite
a statute’s current version.



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                     EARL v. HON. GARCIA/STATE
                         Opinion of the Court

August 8 trial date. The minute entry entered after the conference
observed that the "last day," for purposes of Rule 8, remained August 23.

¶4            On August 1, another prosecutor met with the grand jury
and asked it to hand down an indictment again charging Earl with theft in
connection with the car. A detective testified that after the dealership and
Earl could not come to terms on what to do after the financing fell
through, the dealership tried unsuccessfully to repossess the car and
finally reported it stolen. The grand jury issued an indictment again
charging Earl with theft in violation of A.R.S. § 13-1802, alleging that
"between the 9th day of September, 2009 and the 23rd day of May, 2012,
without lawful authority, [Earl] knowingly controlled [the car] with the
intent to deprive" the dealership of it.

¶5            Earl and his counsel were unaware of the indictment when
they appeared before the master calendar assignment judge the morning
of August 8 to be sent out for trial on the 2011 charge. After a three-
minute unrecorded sidebar conversation at which the prosecutor
disclosed the indictment, the court asked the prosecutor whether he was
moving to dismiss the 2011 information without prejudice, and the
prosecutor said, "That’s correct." After Earl’s counsel said he had no
objection to the dismissal, the court immediately stated that Earl could
reserve an objection: "It’s ordered dismissing the 2011 case while the
presumption is without prejudice, but without prejudice to have it raised."

¶6             Several months later, Earl moved in the 2012 matter to
dismiss both charges with prejudice. He argued the State could not show
good cause pursuant to Rule 16.6(a) for dismissing the 2011 charge and
the prosecutor could not have avowed that the motion to dismiss was not
made to avoid Rule 8. Earl argued that because the State dismissed and
re-filed the theft charge against him "in bad faith and in order to secure a
tactical advantage," the dismissal of the 2011 charge should have been
with prejudice.

¶7            At oral argument on the motion to dismiss, the prosecutor
conceded the State decided to dismiss and re-file the 2011 theft charge
because of facts it learned during the settlement conference three weeks
before trial was to begin. Although the State's original theory had been
that Earl obtained the car by making a material misrepresentation on the
financing application (in violation of A.R.S. § 13-1802(A)(3)), its new
theory was that he controlled the property of another with the intent to
deprive (in violation of § 13-1802(A)(1)). The prosecutor asserted that "we
took the case back to the Grand Jury in order to obtain an indictment on


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                     EARL v. HON. GARCIA/STATE
                         Opinion of the Court

new facts and circumstances and under a different subsection of the
statute. That was the purpose of taking the case back to Grand Jury. It
wasn’t for the purpose of delay." The superior court denied the motion to
dismiss, but, at Earl's request, stayed the trial pending the results of this
special action.

                               DISCUSSION

¶8            After failing to move to continue trial on the 2011 charge, the
State did not file a written motion to dismiss the charge. Nor did it offer
on the record any "good cause" to support its oral motion, as Rule 16.6(a)
requires. In fact, the State said nothing on the record about the purpose of
the dismissal. And after the court volunteered that the dismissal would
be without prejudice to Earl’s opportunity to argue about it later, Earl did
not object. Nor did he press the prosecutor to present the motion to
dismiss on the record in a fashion that might have compelled the court to
decide whether "the purpose of the dismissal [was] not to avoid the
provisions of Rule 8." See Ariz. R. Crim. P. 16.6(a).

¶9            Under the circumstances, Earl's failure to object to the State's
oral motion to dismiss would not have prevented him from moving for
reconsideration or filing a timely petition for special action. But he could
not wait to raise the issue in a subsequent prosecution; he needed to seek
review in the 2011 case. State v. Paris-Sheldon, 214 Ariz. 500, 508, ¶ 23, 154
P.3d 1046, 1054 (App. 2007); see State v. Alvarez, 210 Ariz. 24, 30, 107 P.3d
350, 356 (App. 2005), vacated in part on other grounds, 213 Ariz. 467, 143 P.3d
668; Duron v. Fleischman, 156 Ariz. 189, 191, 751 P.2d 39, 41 (App. 1988).

¶10            In Paris-Sheldon, this court held a defendant in Earl's position
could not appeal in the second case from the dismissal of charges in the
first case without prejudice. 214 Ariz. at 508, ¶ 23, 154 P.3d at 1054. There
is a practical reason why this is so. If, as Earl argues, the State moved to
dismiss the 2011 charge for the purpose of avoiding the Rule 8 deadline,
Rule 16.6(a) required the court to deny the motion. Id. ("[I]f the court
concludes the state is attempting to avoid Rule 8, the court must deny the
motion to dismiss altogether."). If Earl had objected to the motion to
dismiss or had moved to reconsider the dismissal without prejudice or
raised the issue in a timely petition for special action in the 2011 matter,
his Rule 8 rights would have been vindicated, and the prosecution would
have been required to bear the consequences of what Earl asserts was its
lack of diligence.




                                      4
                     EARL v. HON. GARCIA/STATE
                         Opinion of the Court

¶11           But, having waited to complain until the second prosecution
was underway, Earl then sought a different, more extreme remedy --
dismissal of both charges with prejudice. We cannot know what would
have happened if Earl had objected to the motion to dismiss or moved for
reconsideration of the dismissal of the 2011 information or sought special-
action review of that ruling. If he had pressed his Rule 16.6(a) rights at
that time, however, we must assume that before the superior court would
have dismissed the 2011 charge with prejudice, it would have allowed the
State the option of proceeding to trial before the last day on the original
charge, as Rule 16.6(a) contemplates. With that possibility long since
passed, this court cannot properly consider Earl's argument that the
superior court in the second case abused its discretion by failing to
dismiss both charges with prejudice.

                              CONCLUSION

¶12           The court declines to accept jurisdiction of Earl's petition for
special action.

H O W E, Judge, specially concurring:

¶13           I concur in the court’s decision to decline jurisdiction and its
reliance on State v. Paris-Sheldon, 214 Ariz. 500, 154 P.3d 1046 (App. 2007).
By waiting nearly five months to complain about the dismissal of the
information, and then making his complaint in proceedings under the
subsequent indictment, Earl has waived his claim that the dismissal
should have been with prejudice. Although the dissent maintains that our
decision puts the trial court’s dismissal "beyond any opportunity for
review," the fault lies not with our decision, but with Earl’s failure to
diligently seek review.

¶14           Our decision to decline jurisdiction obviates the need to
address the underlying merits of the petition, whether the trial court
abused its discretion in finding that the dismissal of Earl’s original
information did not violate Arizona Rules of Criminal Procedure 8 and
16.6(a). Although the dissent disagrees with the decision to decline
jurisdiction, the dissent also analyzes the merits of the alleged rule
violations. I write separately to respectfully express concern about two
points in that analysis.

¶15           First, the dissent finds that "[t]he purpose of the dismissal
and refiling is clear: The state was unprepared to proceed to trial on the
scheduled date, and its chosen procedure enabled it to grant the



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                      EARL v. HON. GARCIA/STATE
                       Howe, J., Specially Concurring

functional equivalent of a continuance without demonstrating good cause
to the court." (Dissent at ¶ 32). But this is contrary to the trial court’s
finding that "the State did not act inappropriately in any way."

¶16           This court reviews the denial of a motion to dismiss charges
for an abuse of discretion. State v. Espinoza, 229 Ariz. 421, 424 ¶ 15, 276
P.3d 55, 58 (App. 2012). An abuse of discretion is "an exercise of discretion
which is manifestly unreasonable, exercised on untenable grounds or for
untenable reasons." State v. Wassenaar, 215 Ariz. 565, 570 ¶ 11, 161 P.3d
608, 613 (App. 2007) (quoting State v. Woody, 173 Ariz. 561, 563, 845 P.2d
487, 489 (App. 1992)). Our role is neither to second-guess the trial court
nor to substitute our judgment for the trial court’s. State v. Chapple,
135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983), superseded by
statute, A.R.S. § 13-756, as recognized in State v. Benson, 232 Ariz. 452, 467 ¶
66, 307 P.3d 19, 34 (2013). We defer because a trial court "has a more
immediate grasp of all the facts of the case, an opportunity to see the
parties, lawyers and witnesses, and . . . can better assess the impact of
what occurs" in court. Id.

¶17           Applying these principles, the trial court was better
positioned than this court to determine whether the State had good cause
to dismiss or moved to dismiss solely to avoid the Rule 8 time limits. Not
only did the trial court have briefing and oral argument, but it was also
able to assess the prosecutor’s demeanor and credibility as he explained
the reason for the dismissal. Unless we can fairly say that the trial court’s
finding is "manifestly unreasonable" or based on "untenable grounds or
untenable reasons," we as an appellate court must defer to the trial court.

¶18            The dissent identifies nothing in the record showing that the
trial court’s finding was manifestly unreasonable or untenable. At the
hearing on Earl’s motion to dismiss, the State explained that it had sought
the dismissal of the information and then obtained a new indictment
because circumstances had changed since the filing of the information.
The State had learned at the settlement conference that the evidence might
not support a charge that Earl had obtained the car by making a material
misrepresentation on the loan documents. Still believing that Earl had
committed theft by not returning the car, however, the State recharged
Earl under a more appropriate subsection of the theft statute, which
required proof that Earl controlled the property of another with the intent
to deprive the owner of the property without regard to any
misrepresentation. In response to Earl’s argument that the State did not
need to dismiss the information to pursue a new theory of the crime of
theft because theft is a "unified offense," the State argued that it could not


                                       6
                     EARL v. HON. GARCIA/STATE
                      Howe, J., Specially Concurring

obtain an indictment under one theory and then present a different theory
to the trial jury. The State concluded that "we took the case back to the
Grand Jury in order to obtain an indictment on new facts and
circumstances and under a different subsection of the statute. That was
the purpose of taking the case back to Grand Jury. It wasn’t for the
purpose of delay." 2

¶19             Under these circumstances, I would hesitate to find -- as the
dissent implicitly does -- that the trial court’s finding that "the State did
not act inappropriately in any way" is unreasonable or untenable. The
record does not support the dissent's belief that the State was unprepared
to try its case under Rule 8’s time limits.

¶20            The second difficulty with the dissent's analysis is its
statement that if the State discovers that "it is unprepared for whatever
reason to begin trial before the last day," its only recourse is to request
pursuant to Arizona Rules of Criminal Procedure 8.4 and 8.5 that the trial
be continued and the time excluded from the time computation. (Dissent
at ¶ 34; emphasis added). But this is not correct. Although the State is
free to use that procedure if it chooses, it may also move to dismiss the
indictment or information pursuant to Rule 16.6(a) if it has "good cause
therefor" and if "the dismissal is not to avoid the provisions of Rule 8." See
State v. Johnson, 113 Ariz. 506, 508, 557 P.2d 1063, 1065 (1976) ("Absent a
showing of bad faith on the part of the prosecution or prejudice to the
defendant, the State may move to dismiss a prosecution, and the court
may grant the motion, at any time."). Once the case is dismissed, the Rule

2      The dissent maintains that the State could not use its change in
theory as a reason to dismiss because "a theft charge need not specify the
particular subsection of the theft statute the defendant is accused of
violating." (Dissent at ¶ 31). Although that may be an accurate statement
of law about indicting a defendant for theft, the State may nevertheless
have reasons to afford a defendant greater notice than might be required.
It may simply want to ensure that the defendant is correctly apprised of
the theory of liability, if not for justice’s sake, at least for the sake of
avoiding an issue on appeal. The trial court recognized the State’s
concern, noting that "[s]urely the Defendant would cry foul if the State did
not amend the charging document to reflect the results of its investigation
from the first case and give notice of the theory it was proceeding under."
But even if the State was not required to seek a new charging document to
change its theory of the offense, the issue is whether the State had a reason
to dismiss other than to avoid the Rule 8 time limits. The record so shows.



                                      7
                      EARL v. HON. GARCIA/STATE
                       Howe, J., Specially Concurring

8 time limits begin anew. State v. Mendoza, 170 Ariz. 184, 187, 823 P.2d 51,
54 (1992).

¶21            In this case, the State sought dismissal of the information so
that it could present the case to the grand jury under the correct theory of
the offense. A trial court could reasonably find that this was "good cause"
and "not to avoid the provisions of Rule 8." See Johnson, 113 Ariz. at 508,
557 P.2d at 1065 (holding that if the State’s criminal complaint against
defendant had a jurisdictional defect, "the prosecution had the right to
attempt to correct the defect and a motion to dismiss is one method of
doing this"). The law does not support the statement that the State is
limited to seeking a continuance and asking that time be excluded from
the Rule 8 time computation.

¶22            Although I disagree with the dissent on these points, I leave
their resolution for a case in which the defendant has properly preserved
his claim for review. I agree with the decision to decline jurisdiction.

S W A N N, Judge, dissenting:

¶23           I respectfully dissent. This case raises a legal question of
statewide importance: Whether the state may dismiss and refile criminal
charges as a means of avoiding the deadlines imposed by Ariz. R. Crim. P.
8. The special action, though filed against the respondent judge in the
2012 case, adequately raises the issue of the harm done by the Rule 8
violation in the 2011 case, because that harm manifests itself in the 2012
case.

                              JURISDICTION

¶24            In State v. Paris-Sheldon, 214 Ariz. 500, 154 P.3d 1046 (App.
2007), the court considered a similar fact pattern with a very different
procedural history. There, after initial charges were dismissed and refiled,
the defendant moved to dismiss the second prosecution based on a
purported Rule 8 violation in the first case. Id. at 504, ¶¶ 5-6, 154 P.3d at
1050. The superior court denied the motion, and the defendant was
convicted in the second prosecution. Id. at ¶¶ 6-7. The court of appeals
held that an appeal from a conviction in a subsequent prosecution could
not raise the issue of the denial of a motion to dismiss based on an alleged
speedy trial violation in the initial prosecution. Id. at 508, ¶ 24, 154 P.3d at
1054. The court was not presented with the question of special action
jurisdiction. In reaching its holding, the court treated the use of an appeal
as analogous to invited error -- the defendant allowed the case to proceed
to judgment before raising the issue of the earlier Rule 8 violation. Id. The


                                       8
                      EARL v. HON. GARCIA/STATE
                          Swann, J., Dissenting

court concluded that the appropriate course of action would have been a
motion for reconsideration or special action filed in the first case. Id. This
case is different.

¶25            There are important differences between special actions and
appeals that render the holding of Paris-Sheldon inapplicable here. First,
the acceptance of special action jurisdiction is purely discretionary, and no
authority prohibits the court of appeals from accepting jurisdiction in any
special action. For this reason alone, the majority’s reliance on Paris-
Sheldon is misplaced. Our case law is replete with guidelines by which we
exercise our discretion to accept jurisdiction, and the factors warranting
jurisdiction are present here. Second, unlike an appeal, a special action is
not filed "in" a case -- it is an original action challenging the official conduct
of a public official. A special action should be filed when the harm it seeks
to redress becomes manifest, and the superior court case number should
be of no consequence. Third, unlike appeals, special action jurisdiction is
not subject to rigid time constraints.

¶26           Here, Earl filed his motion to dismiss the second
prosecution, and pursued this special action when the court denied it. By
challenging the denial of his motion to dismiss via special action, Earl
appropriately waited for the question to become ripe and promptly
sought review when it did. It is true that Earl could have named the trial
judge in the 2011 case as a respondent. But in that case, the trial judge
expressly ruled "without prejudice" to Earl’s right to raise the issue in the
2012 case. Had Earl brought a special action at that point, it is extremely
unlikely that we would have accepted jurisdiction, because he still had a
right (granted by the court itself) to pursue the issue further in the
superior court in the second prosecution. Of course, Earl could not have
appealed the decision in the 2011 case, because he had not been convicted.
He therefore pursued the only course of action available to him: He filed
the motion that he had been invited to file, and then sought special action
review to ensure that Paris-Sheldon did not bar review on appeal. By
declining jurisdiction over this special action, the majority has placed the
court’s ruling (and the state’s conduct) beyond any opportunity for
review.

¶27           The majority faults Earl for failing to seek reconsideration of
the dismissal without prejudice, but cites no authority for the proposition
that a motion for reconsideration is ever a necessary predicate for review.
The fact that we do not know what would have happened had Earl sought
reconsideration in the 2011 case is, in my view, a frail justification for



                                        9
                     EARL v. HON. GARCIA/STATE
                         Swann, J., Dissenting

declining jurisdiction. Most appellate review is conducted without the
benefit of such knowledge.

¶28            As the majority notes, the state did not file a written motion
to dismiss, and it did not offer good cause for the dismissal. It is true that
if the court had detected lack of merit in the oral motion and denied it, the
resulting trial would have vindicated Earl’s Rule 8 rights. But the court
granted the motion, and proceedings on reconsideration would have
taken the case beyond the last day under Rule 8, effectively giving the
state a continuance during which it could have prepared for trial. It seems
odd to fault Earl for not pursuing a motion that would have had the
practical effect of denying him the very rights he seeks to vindicate. Cf.
Jimenez v. Chavez, 685 Ariz. Adv. Rep. 45 (App. Apr. 22, 2014).

¶29           The majority disapproves of the fact that Earl seeks a more
"extreme" remedy than that to which he would have been entitled had the
court denied the state’s motion to dismiss -- instead of proceeding to trial
on the first charge, he seeks dismissal of the second. But the trial court
itself contemplated Earl’s right to seek such a remedy when it ruled
without prejudice to seek relief on "double jeopardy" grounds. (Even if
double jeopardy relief was legally unavailable in this context, the court
clearly expressed its view that dismissal with prejudice was a possible
remedy.) Even if the majority would not grant Earl the relief he seeks,
there appears to me no justification for declining jurisdiction.

¶30           More troubling is that the majority has not spelled out a path
to appellate review for defendants who find themselves in this situation.
An appeal of a dismissal without prejudice is legally impossible, as is an
appeal filed in the subsequent case. See Paris-Sheldon, 214 Ariz. 500, 154
P.3d 1046. A motion for reconsideration would deprive the defendant of
the very right he seeks to vindicate when the state seeks dismissal close to
the last day under Rule 8. A special action naming the first trial judge as
respondent would not meet with favor, because the defendant would not
yet have exhausted the rights the trial court preserved for him in the
second prosecution. I cannot divine from the majority opinion or the
special concurrence any practical means of redress for this clear end-run
around Rule 8.

                               THE MERITS

¶31          Earl argues that with a "last day" of August 23 approaching,
the state dismissed the charge because after hearing his account at the
settlement conference, it realized that it was unprepared to go to trial on



                                     10
                      EARL v. HON. GARCIA/STATE
                          Swann, J., Dissenting

August 8 on theft-by-misrepresentation. He correctly points out that a
theft charge need not specify the particular subsection of the theft statute
the defendant is accused of violating. See State v. Brown, 204 Ariz. 405,
408-09, ¶ 13, 64 P.3d 847, 850-51 (App. 2003) ("§ 13-1802 creates a single
crime of theft, combining or merging the common law crimes of larceny,
fraud, embezzlement, obtaining money by false pretenses, and other
similar offenses." (citation omitted) (internal quotation marks omitted)).
And due process does not require the state to specify the manner in which
the alleged theft occurred. See State v. Winter, 146 Ariz. 461, 465, 706 P.2d
1228, 1232 (App. 1985) ("[A] general citation of the theft statute in the
indictment suffices to charge a violation of its subparts."), abrogated on
other grounds by State v. Kamai, 184 Ariz. 620, 911 P.2d 626 (App. 1995).

¶32           In response to Earl’s petition for special action, the state does
not argue that the new theory of the case required it to dismiss and refile
the charge. Indeed, it offers no rebuttal to Earl’s argument that it was not
required even to amend the charge to spell out its changed theory. The
purpose of the dismissal and refiling is clear: The state was unprepared to
proceed to trial on the scheduled date, and its chosen procedure enabled it
to obtain the functional equivalent of a continuance without
demonstrating good cause to the court.

¶33            Rule 8 requires the prosecution to be prepared to proceed to
trial before the last day. The prosecution must diligently determine the
facts and the applicable law so that if a mistake in the charging document
needs to be corrected, the state can move for leave to amend the charge
within the time limits imposed by Rules 13.5(b) and 16. And when the
state affirms its readiness for trial, it should be held to its avowal. Jimenez,
685 Ariz. Adv. Rep. 45, at *5, ¶ 20.

¶34           Under Rule 16.6(a), the state may move to dismiss without
prejudice only if the court finds that the purpose of the dismissal is not to
avoid Rule 8 time limits. If the prosecution discovers that it is unprepared
for whatever reason to begin trial before the last day, it may move
pursuant to Rules 8.5 and 8.4(e) to continue the trial and have the delay
excluded from the Rule 8 time limit. Such a motion "must be in writing
and state with specificity the reason(s) justifying the continuance." Ariz.
R. Crim. P. 8.5(a). The superior court may grant a motion to continue
"only upon a showing that extraordinary circumstances exist and that
delay is indispensable to the interests of justice." Ariz. R. Crim. P. 8.5(b).

¶35          Here, the state chose not to move for a continuance to allow
time to develop a new theory of the case -- such a continuance would have


                                      11
                     EARL v. HON. GARCIA/STATE
                         Swann, J., Dissenting

thwarted the purpose of Rule 8, and likely would not have been granted.
Instead, it dismissed the charges after it had already filed a "new" charge
under the identical statute, thereby granting itself a substantial extension
of time and evading Rule 8 entirely.

¶36          The practical effect of the state’s conduct in this case was to
secure the exact result that Rule 8 is designed to avoid. If the rule is to
have meaning, then courts cannot sit silent as the state maneuvers around
it. By allowing the state to employ this procedure, the court not only
renders the rule ineffective, it actually rewards the state for failing to
prepare to begin trial before the last day.

¶37           My conclusion that the court erred in denying Earl’s motion
to dismiss does not end the inquiry. Rule 16.6(d) provides that
"[d]ismissal of a prosecution shall be without prejudice to commencement
of another prosecution, unless the court order finds that the interests of
justice require that the dismissal be with prejudice." The cases make clear
that although several factors may be relevant, a defendant who
demonstrates a violation of Rule 8 is not entitled to dismissal with
prejudice absent proof that he incurred prejudice from the violation. See
State v. Mendoza, 170 Ariz. 184, 191-92, 823 P.2d 51, 58-59 (1992); State v.
Gilbert, 172 Ariz. 402, 404, 837 P.2d 1137, 1139 (App. 1991) ("The most
important factor to consider in whether a dismissal should be with or
without prejudice is whether delay in the prosecution will result in
prejudice to the defendant.").

¶38           Earl argues he was prejudiced because by refiling the charge
against him, the state was able to escape the results of "its own lack of
diligent preparation and marshal additional evidence to support another
theory of theft." Although that is true, Earl cites no authority requiring
dismissal with prejudice simply because a Rule 8 violation allows the state
to overcome what would have been a tactical disadvantage at trial. In
State v. Vasko, 193 Ariz. 142, 147, ¶ 22, 971 P.2d 189, 194 (App. 1998), we
stated, "[t]he specific test for prejudice when a speedy trial violation
occurs is whether defendant has shown that his defense has been harmed
by the delay; it is not sufficient for a defendant to contend that the state
may not have made its case had the trial proceeded without the
continuance." Earl also argues that he experienced continuing expense
and anxiety by the delay, and his liberty and freedom were constrained by
the conditions of his pretrial release.

¶39         I would therefore grant relief and remand the case to the
superior court to enable it to evaluate Earl’s claim of prejudice. To


                                    12
                     EARL v. HON. GARCIA/STATE
                         Swann, J., Dissenting

demonstrate sufficient prejudice, Earl would not need to establish that he
would have been acquitted if he were tried on the original charge on
August 8. But he would be required to demonstrate that his defense was
harmed in a material way by the violation of Rule 8, and in considering
that question, the court could take into account the totality of such harm --
including the burden imposed on him by facing criminal charges for a
period of time in excess of that which the rule contemplates. The
command of Rule 8 is not empty, and when a defendant is demonstrably
harmed by its violation, the superior court should dismiss with prejudice.

¶40           For these reasons, I respectfully dissent.    I would accept
jurisdiction and grant the limited relief detailed above.




                                     :MJT




                                     13
