Time Periods

ARCrP Rule 1.3
Five days is added to all time periods at issue, due to the fact that services may be made by mail.
ARCrP Rule 31.2. Notice of appeal; automatic appeal; joint appeals
Filing the notice of appeal. -- Unless a defendant has been sentenced to death, an appeal or cross-appeal shall be taken by filing a written notice of appeal with the clerk of the trial court, within the time allowed by Rule 31.3.
Automatic appeal when defendant is sentenced to death. -- When a defendant has been sentenced to death, the clerk, pursuant to Rule 26.15, shall file a notice of appeal on his or her behalf at the time of entry of judgment and sentence. Such notice shall be sufficient as a notice of appeal by the defendant with respect to all judgments entered and sentences imposed in the case. Within 10 days after the filing of the notice of appeal in any capital case, the clerk of the superior court shall notify all authorized transcribers assigned to transcribe any portion of the proceedings that they are required to transmit their portions of the certified transcript to the clerk of the supreme court.

Joint appeals. -- If 2 or more persons are entitled to appeal from a judgment or order of the superior court, and their interests are such as to make a joinder practicable, they may file a joint notice of appeal, or may join in the appeal after filing separate timely notices of appeal, and proceed as in the case of a single appellant.

Content of the notice of appeal. -- Except as provided in Rule 31.2(b), the notice of appeal shall identify the order, judgment and sentence appealed from and shall be signed by the appellant or his or her attorney, if any, or by the prosecutor if the appeal or cross-appeal is taken by the state. If the appeal or cross-appeal is taken by the state, in whole or in part, based upon violation of a substantial right of the victim, the attorney for the state shall so state in the notice of appeal or opening brief or memorandum and shall certify that the victim has requested the appeal or cross-appeal, in whole or in part, on that basis.

Additional information. -- The appellant should attach to the notice of appeal:

The name and address of the defendant;

The name and address of the attorney for the defendant, if any;

The name and address (if known) of any co-defendant at trial; and,

Whether the defendant was represented by appointed counsel at the determination of guilt or at sentencing.

Service of the notice of appeal.
When defendant appeals. -- When a defendant appeals, within 8 days of the filing of the notice of appeal, the clerk of the trial court shall send a copy of the notice of appeal to the prosecutor of the county in which the defendant was tried, to the attorney general, to each co-defendant at trial who is not a joint-appellant and defendant's counsel of record, if any, to the appropriate certified court reporter or reporters, or to the court's designated transcript coordinator, if the record was made by electronic or other means, and to the clerk of the proper Appellate Court.

When the state appeals. -- When the state appeals or cross-appeals, within 8 days of the filing of the notice of appeal, the clerk of the trial court shall send a copy of the notice of appeal to each defendant and defendant's counsel of record, if any, to the appropriate certified court reporter or reporters, or to the court's designated transcript coordinator, if the record was made by electronic or other means, and to the clerk or the proper Appellate Court.

Notice of right to counsel. -- The clerk shall include with any notice of appeal sent to a defendant, and shall send to a defendant filing notice of appeal pro se, a notice advising the defendant of his or her rights to counsel under Rule 6.

Notice to the appellate court of pending post-trial motions. -- The clerk shall include with the copy of the notice of appeal sent to the appellate court, a copy of any motion filed by any party under Rule 24 which has not yet been decided by the trial court.

Manner of service. -- The notice of appeal shall be sent to the defendant at his or her address of record or at his or her place of incarceration and to his or her counsel of record.

Entry by the clerk. -- The clerk shall make an entry in the docket when a notice of appeal is filed and shall note whether the defendant had appointed counsel at the determination of guilt or at sentencing. The clerk shall also enter in the docket the names and addresses of the parties to whom copies of the notice of appeal are mailed together with the date of mailing.

HISTORY: Amended Nov. 12, 1991, effective Dec. 31, 1991; amended July 28, 1993, effective Dec. 1, 1993; amended Mar. 18, 1994, effective Apr. 1, 1994; amended eff. Jan. 1, 2007 by R-05-0037.

NOTES:
COMMENT TO 1991 AMENDMENT
The 1991 amendment to Rule 31.2(d) was among those adopted in order to implement the Victims' Bill of Rights, which was incorporated into the Arizona Constitution in 1990 as Art. II, § 2.1. For a related statutory provision, see A.R.S. § 13-4032(4), adopted by Laws 1991, Ch. 229 § 1 et seq. (the "Victims' Rights Implementation Act").

[1973 PROMULGATION]
This rule is intended to provide a simple means for taking appeals and to insure that all persons directly affected by the taking of an appeal are promptly notified. It is drawn from Federal Rules of Appellate Procedure 3.

RULES 31.2 (A) AND (C)
As under the 1956 Arizona Rules of Criminal Procedure, Rule 350, the notice of appeal is filed with the clerk of the trial court. Section (c) is taken directly from Federal Rules of Appellate Procedure 3 (b). Together with Rule 31.4 (b), permitting consolidation of appeals, it is intended to encourage the taking of joint appeals in order to reduce the case load of the appellate court and the workload of clerks and court reporters.

RULE 31.2 (B). Section (b), providing for automatic appeal, is similar to Cal. Penal Code § 1239 (b) (West 1970), Ill. Ann. Stat. § 38:121-12 (a) (Smith-Hurd 1964), and Ala. Code § 15:382 (2) (1958).

RULES 31.2 (D) & (E) Except for automatic appeals, only the signature of the appellant or his counsel and a statement of the judgment, sentence or order being appealed from is required for a proper notice of appeal. See 1956 Arizona Rules of Criminal Procedure, Rule 350. The other information is to aid service by the clerk and to expedite transcription of the record and appointment of counsel. See Rules 31.5 and 31.8 (b) and (d). The term "determination of guilt" is defined in Rule 26.1 (c).

RULE 31.2 (F) The burden of advising other interested persons that an appeal has been filed is shifted from the parties to the clerk of the trial court. Cf. 1956 Arizona Rules of Criminal Procedure, Rules 351 and 352 and Federal Rules of Appellate Procedure 3 (d).

A copy of the notice of appeal and attachment is sent to the court reporter or reporters who reported pretrial hearings, the trial or plea hearing, sentencing and any other superior court proceedings in the case, in order to alert them, at the earliest possible moment, of the need to prepare a transcript and to inform them whether or not the appeal is being taken by a person declared indigent under Rule 6. See Rule 31.2 (e) (4). Rules 31.8 (d) and (e) govern payment of the court reporter by non-indigent parties and Rule 31.5 (a)(2) allows a person who did not proceed as an indigent prior to conviction to so proceed on appeal if he now qualifies.
Paragraph (4) is to provide notice to the appellate court of any post-trial motions then pending so that the court can exercise its power, under Rule 31.4, to stay the appeal. Rules 24.2 (c) and 32.4 (b) provide for notice to the appellate court of any post-trial motions or petitions filed while an appeal is pending.

Service on counsel is required in addition to service on the defendant.

Service may be accomplished by ordinary mail and is complete upon mailing. See 1956 Arizona Rules of Civil Procedure 5 (c).

RULE 31.2 (G) The notation that the defendant has proceeded below as an indigent will automatically serve as authorization for him to proceed as an indigent on appeal unless the trial court orders otherwise. See Rule 31.5.

JUDICIAL DECISIONS
ANALYSIS

DIRECT APPEAL.
Under Ariz. R. Crim. P. 26.15 and 31.2(b), direct appeal to the Supreme Court of Arizona is mandatory when the trial court imposes a sentence of death. State v. Rutledge, 205 Ariz. 7, 397 Ariz. Adv. Rep. 21, 66 P.3d 50, 2003 Ariz. LEXIS 33 (2003).

FAILURE TO APPEAL.
Since the state failed to appeal in accordance with the provisions of this rule, the question raised by the state was not properly before the appellate court. State v. LeMaster, 137 Ariz. 159, 669 P.2d 592 (Ct. App. 1983).

FILING.
The state's filing of a notice of appeal under the wrong cause number does not deprive the court of appeals of jurisdiction. State v. Rasch, 188 Ariz. 309, 935 P.2d 887 (Ct. App. 1996).
ARCrP Rule 31.3. Time for taking appeal
The notice of appeal shall be filed with the clerk of the trial court within 20 days after the entry of judgment and sentence, except that:

A notice of cross-appeal may be filed within 20 days after service of the appellant's notice of appeal; and

A notice of delayed appeal shall be filed within 20 days after service of an order granting a delayed appeal under rule 32.1(f).

NOTES:
[1973 PROMULGATION]
This rule reduces the time in which an appeal may be taken from 60 to 20 days after entry of judgment and sentence and the time for filing a cross-appeal from 30 to 20 days after the filing of the notice of appeal. See Arizona Rules of Criminal Procedure, Rules 348, 349.
The entry of judgment and sentence is taken as a single benchmark for determination of the timeliness of an appeal, with 2 exceptions. For cross-appeals, the filing of the notice of appeal is the point from which the 20-day period will run. Cross-appeals are not required in every case. For delayed appeals, the service of the order is the benchmark. The order itself is not used to trigger the appellate process because it lacks the additional information accompanying the notice of appeal. See Rule 32.1 (f).

JUDICIAL DECISIONS
ANALYSIS

CONSTRUCTION.
Rule 1.3 applies to this rule just as it does to Rules 10.2 and 32.9, both of which also prescribe time running from an event. State v. Rabun, 162 Ariz. 261, 782 P.2d 737 (1989).

FAILURE TO APPEAL.
Petitioner's conviction became final for habeas purposes after the 20 day period during which petitioner could have, but did not, file a notice of appeal to the Arizona Court of Appeals. Matthews v. Schiriro, -- F. Supp. 2d --, 2005 U.S. Dist. LEXIS 22317 (D. Ariz. Sept. 22, 2005).
Although defendant did not separately appeal the denial of modification of sentence, failure to appeal the denial of modification did not deprive court of jurisdiction to consider his appeal of the original sentence, which raised the same issues. State v. Renner, 177 Ariz. 395, 868 P.2d 978 (Ct. App. 1993).

RIGHT TO APPEAL.
The state was precluded by principles of finality from attacking the validity of a dismissal order; the state is given the right to appeal from an order dismissing an indictment, information or complaint or count of an indictment, information or complaint, but where it failed to do so, the order of dismissal became final after the expiration of 20 days from the date of its entry. State v. Kangas, 146 Ariz. 155, 704 P.2d 285 (Ct. App. 1985).

UNTIMELINESS.
Trial court did not err in failing to consider mitigation evidence under A.R.S. §§ 13-701, 13-702 and in considering the prisoner's drug use as an aggravating factor; the prisoner was precluded from relief under Ariz. R. Crim. P. 32.2(a)(3) because he failed to fairly present the claims to the post-conviction review court, and a return to state court would be futile because the time for the prisoner to file a direct appeal under this rule had elapsed. Deberry v. Schriro, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 99081 (D. Ariz. Oct. 22, 2009).
Where appellant's notice of appeal was filed 50 days after the denial of a motion for rehearing, the appeal was not timely filed. State v. Littleton, 146 Ariz. 531, 707 P.2d 329 (Ct. App. 1985).
ARCrP Rule 31.4. Motion to stay appeal; notice of reinstatement of appeal; consolidation of appeals
Motion to stay appeal; notice of reinstatement of appeal.

The appellate court, on motion of a party or on its own initiative, may stay an appeal while a motion under Rule 24 or a petition under Rule 32 is pending. If a stay is ordered, the clerk of the appellate court shall notify all parties, the clerk of the trial court, and, if the certified transcript has not yet been filed, the appropriate authorized transcribers.

Within 20 days after the trial court's decision on the motion or petition, the appellant shall file with the clerk of the appellate court, and send to all persons notified of the stay, either a notice of reinstatement of the appeal or a motion to dismiss the appeal under Rule 31.15 (a) (2).

Consolidation of appeals.
Appeals which raise a common question of law or fact may be consolidated at any time by order of the appellate court upon its own initiative after opportunity has been given to the parties to raise objections or upon motion of a party or upon stipulation by the parties.

An appeal from a final decision on a Rule 24 motion or Rule 32 petition filed prior to a notice of appeal or filed while an appeal is pending and decided while the appeal is stayed, shall be consolidated with an appeal from the judgment or sentence, unless good cause is shown why such consolidation should not occur.

HISTORY: Amended by R-06-0037, effective Jan. 1, 2007.

NOTES:
[1973 PROMULGATION]
This rule is intended to prevent unnecessary duplication and to further define the relationship between appeals and collateral post-conviction procedures. See Rules 31.2 (f) (4), 24.2 and 32.2.

RULE 31.4 (A). Under Rule 31.3 a notice of appeal must be filed within 20 days of entry of judgment and sentence, and under Rule 31.11 the appeal is perfected at the time the first major filing is due in the appellate court. Under Rules 24.2 and 24.3 (a), a defendant may move the trial court to vacate a judgment or unlawful sentence before an appeal is perfected. Under Rule 32.1 a party may file a petition for post-conviction relief at any time subject to Rule 32.2, which precludes the filing of a petition based on any issue still raisable on appeal or in a Rule 24 post-trial motion. In effect, during the pendency of an appeal, a Rule 32 petition is available only after perfection of the appeal and only to raise issues not still raisable on appeal, such as those for which there is no record. Thus, it is possible that proceedings may be pending in both the trial and appellate courts.

Section (a) is intended to empower the appellate court to stay the appeal whenever this jurisdictional overlap threatens to waste the efforts of the courts or the parties. There is no mandatory stay provision. The decision is left with the sound discretion of the appellate court, to balance the delay in prosecution of the appeal against possible gains in judicial efficiency, including elimination of the appeal if the motion or petition is granted or consolidation of an appeal from the decision on the motion or petition with the appeal already pending.

RULE 31.4 (B). Rule 31.4 (b) encompasses two situations. Paragraph (1) governs when separate appeals are taken from the same or similar cases such as when co-defendants file separate appeals. Consolidation is discretionary. The parties have an opportunity to raise objections to consolidation whether it is suggested by a party or by the court. See Rules 35.1 and 35.3.

Paragraph (2) governs the situation covered in Rule 31.4 (a) and is made virtually mandatory since the parties to the appeal from the Rule 24 motion or Rule 32 petition and to the appeal from judgment and sentence will nearly always be identical.

Such appeals should be consolidated automatically unless it can be shown that such consolidation would substantially prejudice one of the parties.

JUDICIAL DECISIONS

CONSOLIDATION.
A defendant should seek to consolidate post-conviction proceedings with a direct appeal. State v. Valdez, 160 Ariz. 9, 770 P.2d 313 (1989).
ARCrP Rule 31.5. Appeals by indigents
Determination of indigency.
A defendant who had appointed counsel at the determination of guilt or at sentencing may proceed on appeal as an indigent without further authorization, unless, after a notice of appeal is filed, the trial court finds that the defendant is now able to employ counsel and pay for a certified copy of the record on appeal and the certified transcript.
A defendant who did not proceed as an indigent in the trial court may so proceed on appeal by filing in the trial court a request to proceed as an indigent, together with the sworn questionnaire required by Rule 6.4(b). The clerk shall immediately deliver a copy of the request and questionnaire to the prosecutor by hand. The court shall require the defendant to appear for an inquiry into his or her ability to pay. It shall grant or deny the request within 3 days of filing, using the standard set forth in Rule 31.5(a)(1).

Contribution by the defendant. -- The trial court may order an indigent defendant to contribute to the costs of appeal and services of counsel in the manner prescribed by Rule 6.7 (d).

Petition to appellate court. -- If the trial court finds that the defendant is not entitled to proceed as an indigent, the defendant may file a petition to so proceed, together with a copy of the sworn questionnaire required by Rule 31.5 (a) (2), in the appellate court. The appellate court, or a single member thereof, shall decide the matter within 3 days after the petition is filed.

Notice to clerk of the appellate court and to the certified court reporter or to the court's designated transcript coordinator. -- A copy of any order or decision made under this rule shall be sent to the parties, the clerk of the appellate court and to the appropriate certified court reporter or reporters, or to the court's designated transcript coordinator, if the record was made by electronic or other means.

HISTORY: Amended May 7, 1975, effective Aug. 1, 1975; amended July 28, 1993, effective Dec. 1, 1993; amended eff. Jan. 1, 2007 by R-05-0037.

NOTES:
[1975 AMENDMENT]
RULE 31.5 (A). Paragraph (1) provides that a person who had appointed counsel at trial, at a Rule 17 plea hearing, or at sentencing, may automatically proceed as an indigent on appeal unless the court finds that his financial condition has changed. The standard used combines the Rule 6.4 (a) standard drawn from Ariz. Rev. Stat. Ann. § 11-584 (1) and Ariz. Rev. Stat. Ann. § 13-1714 (1956).

A defendant who proceeded as an indigent below but does not wish to do so on appeal should notify the trial court promptly.

Paragraph (2) sets forth the procedure for a defendant who has not had counsel appointed under Rule 6. The questionnaire notification of the prosecutor and opportunity for a hearing is to comply with verification requirement in Ariz. Rev. Stat. Ann. § 13-1714 (1956). Cf. Arizona Rules of Criminal Procedure 361 (B); see Rule 6.4 (b). Immediate in hand delivery and determination within 3 days is required to avoid unduly delaying the proceedings. See Rule 6.4 (b).

Rule 6.6 insures that appellate counsel will be appointed when previously appointed counsel is precluded by law or legal ethics from continuing to represent the defendant or when the public defender is unable to prosecute a timely appeal because of lack of resources. Appointed appellate counsel for indigents is constitutionally required on a appeal of right by Douglas v. California, 372 U.S. 353 (1963). See Rule 6.1. The provision of free transcripts and records of prior proceedings is constitutionally required for indigents under Griffin v. Illinois, 351 U.S. 12 (1956). See Draper v. Washington, 372 U.S. 487 (1963); Britt v. North Carolina, 404 U.S. 226 (1971).

RULE 31.5 (B). Section (b) gives the court the discretion to order the defendant to make partial payment under the guidelines and procedures set forth in Rule 6.7 (d). See comment to Rule 6.7.

RULE 31.5 (C) This section provides a prompt review procedure for those denied counsel.

RULE 31.5 (D). The notice required in this rule is to implement the early docketing provided in Rule 31.7 and to permit the court reporter to begin transcribing the record as soon as possible. See Rule 31.2 (g) and comments thereto.
ARCrP Rule 31.7. Docketing in the appellate court; designation of the parties
Docketing the appeal. -- Within 10 days after filing the notice of appeal, the clerk of the appellate court shall docket the appeal.
Designation of the parties. -- An appeal shall be docketed under the title given to the action in the trial court with the appellant identified as such, but if such title does not contain the name of the appellant, his or her name, identified as appellant, shall be added to the title.

HISTORY: Amended July 28, 1993, effective Dec. 1, 1993; amended eff. Jan. 1, 2007 by R-05-0037.

NOTES:
[1973 PROMULGATION]
RULE 31.7. The early docketing provided by this rule is to encourage appellate court supervision of the preparation of appeals by the parties, the clerk of the trial court and the court reporter. See ABA, Standards Relating to Criminal Appeals § 3.1 (Approved Draft, 1970).

RULE 31.7 (B). This rule is equivalent to the 1956 Ariz. Rules of Criminal Procedure, Rule 347 and is taken from the Federal Rules of Appellate Procedure 12 (a).
ARCrP Rule 31.8. The record on appeal; transcript; duty of the authorized transcriber
Composition of the record on appeal; additions; deletions.
Composition. -- The record on appeal to the appellate court shall be a certified transcript, all documents, papers, books and photographs introduced into evidence, and all pleadings and documents in the file -- (other than subpoenas and praecipes not specifically designated), and if authorized by the appellate court, an electronic recording of the proceeding.

Additions and deletions.
By the Appellant. -- Within 5 days after the filing of the notice of appeal the appellant may file with the clerk of the trial court a designation to include in the record the subpoenas and praecipes appellant deems necessary, and to delete from the record all the documents, papers, books and photographs he or she deems unnecessary.

By the Appellee. -- Within 12 days after the filing of the notice of appeal the appellee may file with the clerk of the trial court a designation to include in the record those subpoenas and praecipes appellee deems necessary, and any document, paper, book or photograph deleted by the appellant.

By the Appellate court. -- An exhibit other than those listed in section (a) (1) including the excised portion, if any, of a pre-sentence, diagnostic or mental health report may be added to the record on appeal only by order of the appellate court. Such an order may be made at any time.

Certified transcript: composition, additions and exclusions.

For the purpose of these rules, an "authorized transcriber" is a certified court reporter or a transcriber under contract with an Arizona court.

Composition. -- Except in cases where the death penalty has been imposed, a certified transcript of the following proceedings shall be provided:

Any voluntariness hearing or hearing to suppress the use of evidence.

The trial, except that the record of voir dire of the jury and the opening and closing arguments of counsel shall not be included unless specifically designated by a party.

Entry of judgment and sentence.

Probation violation proceeding.

Aggravation-mitigation hearing.

Composition where the death penalty has been imposed. -- The certified transcript shall consist of all recorded proceedings, including grand jury proceedings.

Additions and deletions. -- Within 5 days after the filing of the notice of appeal, the appellant may request the certified court reporter or the court's designated transcript coordinator, if the record was made by electronic or other means, to add to the certified transcript any proceeding not automatically included, and to exclude from the certified transcript any portion of the proceedings the appellant deems unnecessary for the proper hearing of his or her appeal.

Within 12 days after the filing of the notice of appeal, the appellee may request the certified court reporter or the court's designated transcript coordinator, if the record was made by electronic or other means, to add to the certified transcript any portion deleted by the appellant or not automatically included under paragraph (1).

Notice to other parties. -- Any designation or request made under sections (a) or (b) shall be sent to all other parties at the time it is filed or submitted.

Duty of the authorized transcriber; payment for certified transcript; number of copies.

The authorized transcriber shall prepare the certified transcript promptly upon receipt of a notice of appeal by the state or a notice of appeal indicating that the appellant proceeded as an indigent at the determination of guilt or at sentencing.

Within 5 days after the filing of the notice of appeal or within 5 days after denial or a request to proceed as an indigent, an appellant who is not proceeding as an indigent shall make arrangements with the authorized transcriber to pay for the certified transcript. Thereupon the authorized transcriber shall promptly prepare the certified transcript. The authorized transcriber shall notify the appellate court if the appellant fails to make satisfactory arrangements within the prescribed time.

The authorized transcriber shall promptly make any additions and deletions requested by the parties.

For non-electronically filed transcripts. -- The authorized transcriber shall prepare an original and two copies of the certified transcript unless further copies are ordered. The authorized transcriber shall file the original certified transcript with the clerk of the appellate court within the time for the clerk to file the record pursuant to Rule 31.9(a). When the state is the appellee the authorized transcriber shall send one copy of the certified transcript to the Office of the Attorney General. When the state is the appellant, the authorized transcriber shall send one copy of the certified transcript to the agency that prosecuted the case in Superior Court. The authorized transcriber shall submit the copy for the defendant to the clerk of the Superior Court, who will retain the copy for release to the defendant's appellate counsel or to the defendant if he or she is proceeding pro se, unless there is a local rule or administrative order providing otherwise, in which case the authorized transcriber shall distribute the defendant's copy as provided by such rule or order. Notice of service of the certified transcript shall be lodged with the appellate court reflecting when and upon whom service was made.

For electronically filed transcripts. -- In courts that accept electronic filings, the authorized transcriber shall file the original certified electronic transcript with the clerk of the appellate court within the time for the clerk to file the record pursuant to Rule 3l.9(a). When the state is the appellee, the authorized transcriber shall send an electronic copy of the certified transcript to the Office of the Attorney General and the appropriate county attorney's office, if any. When the state is the appellant, the authorized transcriber shall send an electronic copy of the certified electronic transcript to the agency that prosecuted the case in Superior Court. The authorized transcriber shall submit the electronic transcript for the defendant to the clerk of the Superior Court, who will provide the electronic transcript to the defendant's appellate counsel or to the defendant if he or she is proceeding pro se. If a paper transcript is required or requested in lieu of an electronic transcript, the authorized transcriber shall submit the paper copy for the defendant to the clerk of the Superior Court, who will retain the copy for release to the defendant's appellate counsel or to the defendant if he or she is proceeding pro se, unless there is a local rule or administrative order providing otherwise, in which case the authorized transcriber shall distribute the defendant's copy as provided by such rule or order. Notice of service of the certified transcript shall be lodged with the appellate court reflecting when and upon whom service was made.

Retention of transcript copies. -- Copies of transcripts retained under this rule shall be retained for 90 days.

Responsibility for payment. -- Non-indigent parties shall pay for all portions of the record on appeal and certified transcript which they have designated or requested. In addition, non-indigent appellants shall pay for those portions of the record on appeal and certified transcript required under Sections (a)(1), (b)(1), and (b)(2) and not deleted.

Statement of the evidence for proceedings when no report was made or when the transcript is unavailable. -- If no report of the evidence or proceedings at trial was made or if the transcript is unavailable, the clerk of the trial court shall immediately serve notice of the unavailability upon the parties and upon the clerk of the Appellate Court. Within 10 days of receipt of such notice the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection, which shall be filed with the trial court and sent to the appellee. Within 10 days after service of the appellant's statement, the appellee may prepare objections and propose amendments thereto and submit them to the trial court for approval. If the appellant does not prepare such a statement within the specified time, the appellee may prepare his or her own statement and submit it to the trial court for approval within 20 days of service of the notice of unavailability.

The statement, as approved, shall be included in the record on appeal.

Agreed statement as the record on appeal. -- In lieu of the record on appeal as defined above, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the trial court, setting forth only so many of the facts averred and proved or thought to be proved as are essential to a decision of the issues presented. Notice that a statement is being prepared shall be served promptly on the appropriate authorized transcriber and on the clerk of the trial court.

The agreed statement shall be submitted for the trial court's approval within 20 days of the filing of the notice of appeal. The court may make such additions as it considers necessary fully to present the appeal.

Correction or modification of the record. -- If any controversy arises as to whether the record discloses what actually occurred in the trial court, the difference shall be submitted to and settled by the trial court. If anything material to either party is omitted from the record or is misstated therein, the parties by stipulation, the trial court, either before or after the record is transmitted to the appellate court, or the appellate court on motion or on its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court.

HISTORY: Amended May 7, 1975, effective Aug. 1, 1975; amended Feb. 23, 1981, effective Mar. 1, 1981; amended July 26, 1982, effective Sept. 1, 1982; amended Oct. 29, 1991, effective Dec. 1, 1991; amended July 28, 1993, effective Dec. 1, 1993; amended Mar. 18, 1994, effective Apr. 1, 1994; amended June 10, 1997, effective January 1, 1998; amended Oct. 6, 1998, effective Dec. 1, 1998; amended eff. Jan. 1, 2007 by R-05-0037.

NOTES:
COMMITTEE COMMENT TO THE 1997 AMENDMENTS
Superior courts in the respective counties may adopt local rules ensuring that each defendant appearing pro se timely receives a copy of the transcript for appeal. See Rule XIV, Uniform Rules of Practice of the Superior Court. The Superior Court Clerks should also maintain an accurate record of when a defendant's copy of a transcript has been lodged with the office of the clerk and when and to whom such copy has been released.

[1975 AMENDMENT]
Only those papers and portions of the proceedings normally needed on appeal are automatically included in the record and transcript.

RULES 31.8 (A) & (C) The record on appeal will consist of copies of the matters in the file, not the original documents. This will allow the permanent file to remain in the trial court for reference in case of later Rule 32 petitions, or concurrent Rule 24 motions. Under Rule 28.1, the clerk of the appellate court is authorized to destroy the copies used for the appeal when they are no longer needed by the appellate court.

Paragraph (1) replaces Arizona Rules of Criminal Procedure 360 (A) and includes all the items listed in that rule except exhibits other than documents, papers, books and photographs. In addition, a copy of the complaint, if any, and the order holding the defendant to answer, if any, should be included.

The term documents, papers, books and photographs introduced into evidence includes those items introduced at trial and those introduced during sentencing proceedings including the excised presentence report and any diagnostic or mental health reports. See Rules 26.4, 26.5, 26.6 and 26.7 (c). The appellate court may send for an exhibit not included in the record on appeal at any time.

Each party is given the opportunity to add those portions of the record not included automatically. The appellant may request the omission of any portion of the record or any exhibit he does not need and does not want to pay for, but the appellee may request its reinsertion at his own expense. Stringent time limits are imposed on such requests in order to permit the clerk and court reporter to complete their duties within the prescribed time. The appellant must file and serve his request within 5 days after filing the notice of appeal and the appellee has 7 days more -- i.e., about 5 days after he receives his copy of any request of the appellant -- to file and serve his request.

RULE 31.8 (D) Paragraph (1) requires the reporter to begin transcribing as soon as possible after receiving a notice of appeal by the state or by an appellant who proceeded as an indigent below. Payment in those cases is assured and there is no reason to wait. See Rules 34.5 (d) and 34.2 (g).

Private parties who are able to pay must make arrangements to do so promptly in order to permit timely filing of the record. The number of copies filed conforms to the present practice in the 9th Circuit.

RULE 31.8 (F). This rule is based on the 1956 Arizona Rules of Criminal Procedure, Rule 363. The clerk of the trial court is in a better position than the appellant to know at the earliest possible moment, that a transcript is unavailable; hence, he has the duty of notifying the parties. Cf. the Federal Rules of Appellate Procedure 10 (d). If the clerk should find that the transcript is unavailable within a few days of the filing of the notice of appeal, the time limits prescribed in this section should still allow the appeal to proceed within the general time limits of Rule 31. If the unavailability of the transcript should only become apparent later, this would be grounds for extending the time for transmission of the record under Rule 31.9 (c). Cf. Arizona Rules of Criminal Procedure 75 (k).

RULE 31.8 (G). Rule 31.8 (g) is based upon Federal Rules of Appellate Procedure 10 (d). It provides a money-saving alternative for the parties and a way of relieving the burden on the clerk and other court personnel. Cf. Arizona Rules of Civil Procedure 75 (f).

RULE 31.8 (H). This section is taken from Federal Rules of Appellate Procedure 10 (e) and is intended to prevent major delays and confusion when mistakes or omissions occur. Cf. Arizona Rules of Civil Procedure 75 (h).

JUDICIAL DECISIONS
ANALYSIS

MISTAKE OR OMISSION.
Where a jury of 12 members returned verdicts convicting defendant of certain criminal offenses, where the jurors were individually polled, where the court reporter's transcript only contained the polling of 11 of the 12 jurors and omitted any mention of juror number six, and when defendant appealed his conviction on the basis that he was denied his right to a 12-person jury, the state could and should have asked the appellate court to employ Ariz. R. Crim. P. 31.8(h) to clarify what actually occurred during the polling process; that procedure would have better served the goals of timely administering justice and searching for the truth and would have quickly revealed that the omission of the polling of juror number six from the trial transcript was merely attributable to court reporter error. State v. Diaz, 223 Ariz. 358, 575 Ariz. Adv. Rep. 41, 224 P.3d 174, 2010 Ariz. LEXIS 10 (2010).

RECORD INADEQUATE.
Where the trial judge's pronouncement of sentence was fully set forth, but much of that proceeding, most notably defendant's statement on his own behalf and a statement by defense counsel, were not transcribed, record of sentencing hearing was clearly inadequate to enable proper review of defendant's death sentence. A new hearing was required. State v. Schackart, 175 Ariz. 494, 858 P.2d 639 (1993), cert. denied, 511 U.S. 1046, 114 S. Ct. 1578, 128 L. Ed. 2d 220 (1994).

TRIAL EXHIBITS.
In defendants' consolidated appeals from convictions on alcohol-related driving charges, the court included in its review the exhibits, primarily scientific articles, that were admitted at trial because, contrary to the state's assertion, such were part of the record on appeal pursuant to Ariz. R. Crim. P. 31.8(a)(1). State v. Esser, 205 Ariz. 320, 403 Ariz. Adv. Rep. 12, 70 P.3d 449, 2003 Ariz. App. LEXIS 108 (Ct. App. 2003).
ARCrP Rule 31.9. Transmission of the record
Time for transmission. -- Within 45 days after the filing of the notice of appeal, the clerk of the superior court shall transmit to the appellate court a copy of the pleadings, documents, and minute entries, and the original paper and photographic exhibits of a manageable size filed with the clerk of the superior court.

Duty to certify and transmit the record. -- After certifying that it is true, correct, and complete as ordered, the clerk of the trial court and the authorized transcriber shall transmit to the clerk of the appellate court the portions of the record on appeal for which each is responsible. Each shall number the items comprising that portion of the record on appeal and shall transmit with that portion a list of the items so numbered.

Extension and reduction of time for transmission of the record. -- The appellate court, on a showing of good cause, may grant one extension of the time for transmitting the record on appeal which shall not exceed 20 days or it may require the record to be transmitted at any time within the prescribed period. A copy of any order issued under this section shall be sent to the parties, the clerk of the trial court, and to the requesting authorized transcriber.

Transmission of other exhibits. -- The court, or any party upon motion made to the appellate court, may request the transmission of exhibits not automatically transmitted under Rule 31.9(a) when such are necessary to the determination of the appeal.

HISTORY: Amended May 7, 1975, effective Aug. 1, 1975; amended July 28, 1993, effective Dec. 1, 1993; amend. June 10, 1997, effective January 1, 1998; amended Jan. 30, 2002, effective June 1, 2002; amended eff. Jan. 1, 2007 by R-05-0037.

NOTES:
[1975 AMENDMENT]
This rule is drawn from the 1956 Arizona Rules of Criminal Procedure, Rules 360 (B) and 361 (A), and Federal Rules of Appellate Procedure, 11.

RULES 31.9 (A) & (C). Rule 31.9 (a) allows 25 days more than the former rule for filing the record. The 1956 Arizona Rules of Criminal Procedure, Rule 361 (A). Rule 31.9 (c) permits one extension of up to 20 days on a showing of good cause. Such extension can be granted only by the appellate court. The notice requirement is to insure that all persons concerned will be aware of any change in the date on which the record or any portion thereof is due.
RULE 31.9 (B). Section (b) requires each person responsible for preparing a portion of the transcript to transmit that portion to the appellate court himself. The rule allows transmittal of the clerk's portion of the record and of the transcript as soon as each is ready. The rule does not prevent the clerk and reporter from assembling and transmitting the record and transcript in a single package.

Rule 31.9 (b) retains the certification requirement of the 1956 Arizona Rules of Criminal Procedure, Rule 360 (B) and 361 (A), but omits the requirement that the clerk affix his seal. Added is a requirement, taken from Federal Rules of Appellate Procedure 11 (b), that the clerk and reporter number the items in the record and transcript and attach a list of the items so numbered.
ARCrP Rule 31.11. Perfection of the appeal
No new matter, other than a petition for postconviction relief not precluded under Rule 32.2, may be filed in the trial court by any party to an appeal later than 15 days after the record on appeal has been filed.

NOTES:
[1973 PROMULGATION]
Perfection of an appeal is delayed to give the parties an adequate opportunity to file corrective motions in the trial court. This section delays the perfection of the appeal until the due date for the first filing which directly affects the course of the appeal and which can only be decided by the appellate court -- the request to file briefs. See Rule 31.12. This gives parties who appeal about the same time to file corrective motions as they had under the former rules -- about 60 days -- and equalizes the time for filing motions under Rule 24.2 for those who do and those who do not appeal. Formerly, an appeal was perfected upon the filing of the notice of appeal and payment of the docketing fee. See Arizona Rules of Civil Procedure 73 (d); and the 1956 Arizona Rules of Criminal Procedure, Rule 348.

Perfection, under this section, merely designates to what court new matters relating to the appeal must be addressed. It does not remove the trial court's jurisdiction to decide motions filed before the cut-off date, or petitions for post-conviction relief based upon issues which are not raisable on appeal and were not raised in a post-trial motion. See Rules 24.2; 24.3; 32.1; 32.2. Thus, a Rule 24 motion which was filed before perfection may be decided by the trial court after perfection whether or not the appeal has been stayed under Rule 31.4 (a).

The phrase "15 days after the record of appeal has been filed" refers to 15 days after the date on which the parties are notified under Rule 31.10.

JUDICIAL DECISIONS
NEW MATTER.
The revocation of probation is not a new matter within the meaning of that term in this rule. State v. Albe, 148 Ariz. 87, 713 P.2d 288 (Ct. App. 1984).
ARCrP Rule 31.12. Form of motions
All papers relating to motions may be produced by any process that results in a clear black image on white paper, including typing, printing, or photocopying. The paper must be white, opaque, and unglazed, and only one side of the paper may be used. Motion papers shall be on paper 8 1/2 by 11 inches and shall contain a caption setting forth the name of the court, the title of the case, the case number, and a brief descriptive title. Text shall be double-spaced; headings, quotations and footnotes may be indented and single-spaced. Either a proportionately spaced typeface of 14 points or more, or a monospaced typeface of no more than 10 1/2 characters per inch, shall be used for text, quotations, and footnotes. A proportionately spaced typeface has characters with different widths (e.g., an acceptable proportionately spaced typeface is Times New Roman, 14 point). A monspaced typeface has characters with the same advanced width (e.g., an acceptable monospaced typeface is Courier New, 12 point). All margins must be at least 1 inch. Page numbers shall be placed in the bottom margin, but no text or footnotes may appear there. Text shall be in roman, non-script text, although italics, underline, or bold may be used for emphasis. Case names and signals shall be underlined or in italics. Headings shall be underlined, in italics, or in bold. All parties must file the original and four copies of all motions filed in the Court of Appeals and the original and seven copies of all motions filed in the Supreme Court.

HISTORY: Adopted June 10, 1997, effective January 1, 1998; amended Jan. 24, 2001, effective June 1, 2001; amended effective Oct. 12, 2005.
Rule 31.13. Appellate briefs [Effective until January 1, 2011]
Time for filing; manner of filing. -- In all cases other than capital cases, the appellant's opening brief shall be filed within 40 days after the mailing of the notice as provided for by Rule 31.10. The appellee's brief shall be filed within 40 days after service of the appellant's brief. The appellant may file a reply brief within 20 days after service of the appellee's brief, or the appellant may file a notice to the effect that no reply brief will be filed, at which time the appeal will be deemed to be "at issue." Otherwise, the appeal will be deemed to be "at issue" upon the filing of the reply brief or 20 days after service of the appellee's brief, whichever first occurs. The time for filing briefs in capital cases shall be governed by subdivision (f) of this rule. Briefs and appendices may be filed by mail, which shall include every type of delivery service except same day hand delivery. Briefs and appendices shall be deemed timely filed if, within the time allowed for filing, they are either (i) received by the Clerk of the Court, or (ii) they are addressed to the Clerk of the Court and picked up by or delivered either to a third party commercial carrier for delivery within three calendar days or to the United States Postal Service. Except in the case of same day hand delivery, filing by third-party commercial carrier or by mail must be accompanied by the party's or attorney's separate signed certification indicting the date of delivery to or pick up by either the carrier or the United States Postal Service.

Form and length.
Form. -- A brief shall comply with Rule 31.12, except that the brief's covers and the components of the brief excluded from the word count computation are exempt from the 14 point or 10 1/2 characters per inch typeface requirement. Briefs shall be in pamphlet form and shall have covers. The front cover shall contain (1) the name of the court, (2) the number of the case, (3) the title of the case, (4) the title of the brief (e.g., opening brief), and (5) the name and address and state bar number of counsel representing the party on which behalf the brief is filed. The covers of briefs shall be colored as follows: the appellant's opening brief, blue; the appellee's answering brief, red; any reply brief, gray; the brief of an intervenor or amicus curiae, green.

Length. -- Except by permission of the court, (i) a principal brief in a non-capital case prepared in a proportionately spaced typeface may not exceed 14,000 words, and a reply brief may not exceed 7,000 words, and neither may have an average of more than 280 words per page, including footnotes and quotations; and (ii) a principal brief in a non-capital case prepared in a monospaced typeface may not exceed 40 pages, and a reply brief may not exceed 20 pages. The above word and page limits do not include the table of contents, table of citations, certificate of service, certificate of compliance, and any addendum containing statutes, rules, regulations, etc. The brief must be accompanied by a certificate of compliance that states the brief's line spacing and states either (i) the brief uses a proportionately spaced typeface, together with the typeface, point size, and word count, or (ii) the brief uses a monospaced typeface, together with the number of characters per inch. A party preparing this certificate may rely on word count of the processing system used to prepare the brief. The length of briefs in capital cases is governed by subsection (f) of this rule.

Briefs not clearly legible shall be stricken by the court.

Contents.
Appellant. -- The appellant's brief shall include:

A table of contents with page references.
A table of citations, which shall alphabetically arrange and index the cases, statutes, and other authorities cited, with references to the pages of the brief on which they are cited.

A statement of the case, indicating briefly the basis of the appellate court's jurisdiction, the nature of the case, the course of the proceedings and the disposition in the court below.

A statement of facts relevant to the issues presented for review, with appropriate references to the record. The statement shall not contain evidentiary matter unless material to a proper consideration of the issues presented, in which instance a reference shall be made to the record or page of the transcript where such evidence appears. The statement of facts may be combined with the statement of the case.

A statement of the issues presented for review. The statement of an issue presented for review will be deemed to include every subsidiary issue fairly comprised therein.

An argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on. The argument may include a summary. With repsect to each contention raised on appeal, the proper standard of review on appeal shall be identified, with citations to relevant authority, at the outset of the discussion of that contention. Citation of authorities shall be to the volume and page number of the official reports and also when possible to the unofficial reporters.

A short conclusion stating the precise relief sought.

An appendix if desired.

Appellee. -- The appellee's brief shall be of like character and arrangement as that of the appellant except that no statement of the case is required unless the appellee finds the statement presented by the appellant to be insufficient or incorrect.

Reply brief. -- The reply brief shall be confined to a response to questions of law or fact raised by the appellee's brief.

Appendix.
The appellate brief for either party may include an appendix of pertinent statutes, treaties, regulations, rules, and instructions.

In addition, the appendix to an appellate brief may include extended quotations from cases and authorities where such quotations are required for proper presentation of the issues.

Extension of time. -- Upon a showing of exceptional circumstances, the appellate court may extend the time for filing a brief.

Non-compliance. -- The appellate court may strike a brief which does not substantially conform to the requirements of this rule.

Capital cases.
Time for filing. -- In capital cases, the appellant's opening brief shall be filed within 70 days after the mailing of the notice as provided for by Rule 31.10. The appellee's brief shall be filed within 40 days after service of the appellant's brief. Appellant's reply brief shall be filed within 20 days after service of appellee's brief.

Length. -- Except by permission of the court, (i) a principal brief in a capital case prepared in a proportionately spaced typeface may not exceed 28,000 words and a reply brief may not exceed 14,000 words, and neither may have an average of more than 280 words per page, including footnotes and quotations; and (ii) a principal brief in a capital case prepared in a monospaced typeface may not exceed 80 pages, and a reply brief may not exceed 40 pages. All other requirements for the form of the briefs shall be as specified in subsection (b) of this rule.

HISTORY: Amended May 7, 1975, effective Aug. 1, 1975; amended Oct. 24, 1991, effective Nov. 15, 1991; amended Feb. 18, 1992, effective Sept. 1, 1992; amended June 10, 1998, effective January 1, 1998; amended Oct. 6, 1998, effective Dec. 1, 1998; amended Jan. 24, 2001; effective June 1, 2001.

NOTES:
COMMITTEE COMMENT TO THE 1997 AMENDMENTS
This rule has been amended to conform to corresponding rules of the Arizona Rules of Civil Appellate Procedure . See the comments to ARCAP 15 concerning formatting of briefs. In adition, this rule has been amended to make the structure of any brief identical to the structure of briefs in civil appeals under ARCAP 13. The time for filing briefs has been extended and motions for additional time to file briefs will be rarely granted.

[1975 AMENDMENT]
This rule is drawn from Ariz. Sup. Ct. R. 5 and Federal Rules of Appellate Procedure 28 and 32. The appellate memorandum will be the standard appellate pleading. Briefs are permitted only on motion under Rule 31.12.

RULE 31.13 (A) The appellant's memorandum is due within 20 days after the filing of the record or 10 days after denial of a request to file briefs; the appellee's memorandum is due about 20 days later. This compares to 30-day periods for briefs under this rule and under Ariz. Sup. Ct. R. 5 (f). No reply memoranda are permitted. Reply briefs are due 20 days after service of the appellee's brief, as under current Ariz. Sup. Ct. R. 5 (f) (3). Service shall be in accordance with Rule 31.21. The filing of the record refers to the date of notice specified in Rule 31.10.

RULE 31.13 (B) The requirements in paragraph (1) which govern both memoranda and briefs are taken directly from Ariz. Sup. Ct. R. 5 (a) except that all appellate pleadings are to be on letter size paper rather than the 7" x 10" paper required by Ariz. Sup. Ct. R. 5 (a). These rules standardize the paper size for all documents in criminal cases. See Rule 35.1.

Appellate memoranda under paragraph (2) may be 15 pages long. Briefs may be about the same length as previous practice -- ca. 9,600 words. Appellate memoranda need only have stiff backing, but briefs, because of their greater bulk must have covers and be bound in pamphlet form.

RULE 31.13 (C) Part (1) of this section is based on Federal Rules of Appellate Procedure 28 (a). A statement of the issues is included within the table of contents rather than as a separate requirement. In briefs the issues presented should substantially conform to those listed in the statement of issues under Rule 31.12. There is no reason for the contents of the brief to differ substantially from that of the memorandum. The only difference herein is the provision in paragraph (4) (ii) permitting the appendix to an appellate memorandum to contain extended quotations where they are absolutely necessary.

The restrictions on the reply brief in paragraph (3) are taken from Ariz. Sup. Ct. R. 5 (e).
RULE 31.13 (E) This rule changes Ariz. Sup. Ct. R. 5 (a) (3) in that the power to reject a memorandum or brief is given to the appellate court rather than to the clerk.

JUDICIAL DECISIONS
ANALYSIS

CONSTITUTIONALITY.
There was no deprivation of defendant's constitutional rights resulting from the page limitation applied to his opening brief. State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992), cert. denied, 506 U.S. 1084, 113 S. Ct. 1058, 122 L. Ed. 2d 364 (1993); overruled on other grounds by State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001).

Where defendant was permitted to file a brief more than twice the size normally accepted, to file a 34-page reply brief, and to engage, through his counsel, in oral argument before the court, and as all arguable issues were raised and analyzed in the brief submitted, the court-mandated editing of defendant's appellate brief did not violate his constitutional rights. State v. Amaya-Ruiz, 166 Ariz. 152, 800 P.2d 1260 (1990), cert. denied, 500 U.S. 929, 111 S. Ct. 2044, 114 L. Ed. 2d 129 (1991).

IN GENERAL.
The type of issues an appellant can raise in an appeal and the number of issues an appellant can raise are not limited by a rule per se; as a long-standing practice, however, this court, like other appellate courts, will not tolerate a party's presentation of claims that have no arguable merit. State v. Carriger, 143 Ariz. 142, 692 P.2d 991 (1984), cert. denied, 471 U.S. 1111, 105 S. Ct. 2347, 85 L. Ed. 2d 864 (1985).

PURPOSE.
The appellate process is designed to give prompt, full appellate review to those who have grounds to believe they have not had a fair trial; important policy considerations require that all claims be raised in the appeal. State v. Carriger, 143 Ariz. 142, 692 P.2d 991 (1984), cert. denied, 471 U.S. 1111, 105 S. Ct. 2347, 85 L. Ed. 2d 864 (1985).

FAILURE TO RAISE ISSUE.
Defendant failed to comply with this rule; therefore, the appellate court considered only defendant's argument that the indictment was allegedly duplicitous. State v. Ramsey, 211 Ariz. 529, 466 Ariz. Adv. Rep. 3, 124 P.3d 756, 2005 Ariz. App. LEXIS 159 (Ct. App. 2005).

Where a defendant did not develop an argument that his sentencing violated A.R.S. § 13-116, the argument was not preserved for review. State v. Burdick, 211 Ariz. 583, 467 Ariz. Adv. Rep. 3, 125 P.3d 1039, 2005 Ariz. App. LEXIS 166 (Ct. App. 2005).

Defendant contended, on appeal, that there was a lack of foundation for the admission of sentencing documents to prove defendant's two prior felony convictions; appellate court rejected this argument as summarily waived because defendant did not provide sufficient argument on appeal. State v. Cons, 208 Ariz. 409, 430 Ariz. Adv. Rep. 63, 94 P.3d 609, 2004 Ariz. App. LEXIS 107 (Ct. App. 2004).

Where defendant appealed generally from the revocation of his probation and sentence but did not set forth any issues, absent fundamental error, he waived any claims on appeal. State v. Holguin, 177 Ariz. 589, 870 P.2d 407 (Ct. App. 1993).

If an error is not fundamental, an appellant's failure to raise an issue on appeal constitutes a waiver of that issue. Because such a waiver constitutes abandonment of the claim, an appellant may not raise a claim of error for the first time in his reply brief. State v. Lee, 160 Ariz. 489, 774 P.2d 228 (Ct. App. 1989).

Since defendant's brief listed his concerns without providing argument with respect to counsel's failure to object to the hearsay and to counsel's identification of evidence, these claims were therefore abandoned and waived. State v. Nirschel, 155 Ariz. 206, 745 P.2d 953 (1987).

Issue of whether suppression was an appropriate remedy was not addressed in the state's opening brief, and was not raised until the state filed its reply brief; it was thus waived. State v. Doolittle, 155 Ariz. 352, 746 P.2d 924 (Ct. App. 1987).

LEGIBILITY.
There is no requirement that pleadings be typed this rule requires that briefs be clear and legible. Knight v. Superior Court ex rel. County of Maricopa, 161 Ariz. 551, 779 P.2d 1290 (Ct. App. 1989).

PAGE LIMIT.
Policy reason Arizona courts advance for disallowing argument in appendices is that an appendix may not be used to circumvent the page limitations, and this policy would be equally important in petitions for review as it is in direct appeals under this rule; there is no reason why Arizona courts would permit an appendix to be used to circumvent a page limit in a petition for review of a petition-for-post-conviction-relief when the Arizona courts do not permit such a tactic on direct review. Laliberte v. Ryan, -- F. Supp. 2d --, 2009 U.S. Dist. LEXIS 44252 (D. Ariz. May 26, 2009).

Attachment of arguments as an "appendix" to appellant's opening brief is improper under this rule, as argument must be in the body of the brief. State v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995), cert. denied, 517 U.S. 1146, 116 S. Ct. 1444, 134 L. Ed. 2d 564 (1996).

Supreme court's rejection of defendant's oversize (175 page) brief and order that he file a brief within the 80-page limit did not deny him due process when he wasted many pages on precluded issues and raised many issues repeatedly rejected in recent decisions. State v. Bolton, 182 Ariz. 290, 896 P.2d 830 (1995).

Barring an advance showing of the most extraordinary circumstances, the appellate court is committed to enforcing the page limitations set by the rules. State v. West, 176 Ariz. 432, 862 P.2d 192 (1993), cert. denied, 511 U.S. 1063, 114 S. Ct. 1635, 128 L. Ed. 2d 358 (1994), overruled on other grounds, State v. Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998).
ARCrP Rule 31.13. Appellate briefs [Effective January 1, 2011]
Time for filing; manner of filing. -- In all cases other than capital cases, the appellant's opening brief shall be filed within 40 days after the mailing of the notice as provided for by Rule 31.10. The appellee's brief shall be filed within 40 days after service of the appellant's brief. The appellant may file a reply brief within 20 days after service of the appellee's brief, or the appellant may file a notice to the effect that no reply brief will be filed, at which time the appeal will be deemed to be "at issue." Otherwise, the appeal will be deemed to be "at issue" upon the filing of the reply brief or 20 days after service of the appellee's brief, whichever first occurs. The time for filing briefs in capital cases shall be governed by subdivision (f) of this rule. Briefs and appendices may be filed by mail, which shall include every type of delivery service except same day hand delivery. Briefs and appendices shall be deemed timely filed if, within the time allowed for filing, they are either (i) received by the Clerk of the Court, or (ii) they are addressed to the Clerk of the Court and picked up by or delivered either to a third party commercial carrier for delivery within three calendar days or to the United States Postal Service. Except in the case of same day hand delivery, filing by third-party commercial carrier or by mail must be accompanied by the party's or attorney's separate signed certification indicting the date of delivery to or pick up by either the carrier or the United States Postal Service.

Form and length.
Form. -- A brief shall comply with Rule 31.12, except that the brief's covers and the components of the brief excluded from the word count computation are exempt from the 14 point or 10 1/2 characters per inch typeface requirement. Briefs shall be in pamphlet form and shall have covers. The front cover shall contain (1) the name of the court, (2) the number of the case, (3) the title of the case, (4) the title of the brief (e.g., opening brief), and (5) the name and address and state bar number of counsel representing the party on which behalf the brief is filed. The covers of briefs shall be colored as follows: the appellant's opening brief, blue; the appellee's answering brief, red; any reply brief, gray; the brief of an intervenor or amicus curiae, green.

Length. -- Except by permission of the court, (i) a principal brief in a non-capital case prepared in a proportionately spaced typeface may not exceed 14,000 words, and a reply brief may not exceed 7,000 words, and neither may have an average of more than 280 words per page, including footnotes and quotations; and (ii) a principal brief in a non-capital case prepared in a monospaced typeface may not exceed 40 pages, and a reply brief may not exceed 20 pages. The above word and page limits do not include the table of contents, table of citations, certificate of service, certificate of compliance, and any addendum containing statutes, rules, regulations, etc. The brief must be accompanied by a certificate of compliance that states the brief's line spacing and states either (i) the brief uses a proportionately spaced typeface, together with the typeface, point size, and word count, or (ii) the brief uses a monospaced typeface, together with the number of characters per inch. A party preparing this certificate may rely on word count of the processing system used to prepare the brief. The length of briefs in capital cases is governed by subsection (f) of this rule.

Briefs not clearly legible shall be stricken by the court.

Contents.
Appellant. -- The appellant's brief shall include:

A table of contents with page references.

A table of citations, which shall alphabetically arrange and index the cases, statutes, and other authorities cited, with references to the pages of the brief on which they are cited.

A statement of the case, indicating briefly the basis of the appellate court's jurisdiction, the nature of the case, the course of the proceedings and the disposition in the court below.

A statement of facts relevant to the issues presented for review, with appropriate references to the record. The statement shall not contain evidentiary matter unless material to a proper consideration of the issues presented, in which instance a reference shall be made to the record or page of the transcript where such evidence appears. The statement of facts may be combined with the statement of the case.

A statement of the issues presented for review. The statement of an issue presented for review will be deemed to include every subsidiary issue fairly comprised therein.

An argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on. The argument may include a summary. With repsect to each contention raised on appeal, the proper standard of review on appeal shall be identified, with citations to relevant authority, at the outset of the discussion of that contention. Citation of authorities shall be to the volume and page number of the official reports and also when possible to the unofficial reporters.

A short conclusion stating the precise relief sought.

An appendix if desired.

Appellee. -- The appellee's brief shall be of like character and arrangement as that of the appellant except that no statement of the case is required unless the appellee finds the statement presented by the appellant to be insufficient or incorrect.

Reply brief. -- The reply brief shall be confined to a response to questions of law or fact raised by the appellee's brief.

Appendix.
The appellate brief for either party may include an appendix of pertinent statutes, treaties, regulations, rules, and instructions.

In addition, the appendix to an appellate brief may include extended quotations from cases and authorities where such quotations are required for proper presentation of the issues.

Extension of time. -- Upon a showing of exceptional circumstances, the appellate court may extend the time for filing a brief.

Non-compliance. -- The appellate court may strike a brief which does not substantially conform to the requirements of this rule.

Capital cases.
Time for filing. -- In capital cases, the appellant's opening brief shall be filed within 90 days after the court issues a notice that the record is complete. The appellee's brief shall be filed within 60 days after service of the appellant's brief. Appellant's reply brief shall be filed within 30 days after service of appellee's brief.

Length. -- Except by permission of the court, (i) a principal brief in a capital case prepared in a proportionately spaced typeface may not exceed 28,000 words and a reply brief may not exceed 14,000 words, and neither may have an average of more than 280 words per page, including footnotes and quotations; and (ii) a principal brief in a capital case prepared in a monospaced typeface may not exceed 80 pages, and a reply brief may not exceed 40 pages. All other requirements for the form of the briefs shall be as specified in subsection (b) of this rule.

HISTORY: Amended May 7, 1975, effective Aug. 1, 1975; amended Oct. 24, 1991, effective Nov. 15, 1991; amended Feb. 18, 1992, effective Sept. 1, 1992; amended June 10, 1998, effective January 1, 1998; amended Oct. 6, 1998, effective Dec. 1, 1998; amended Jan. 24, 2001; effective June 1, 2001; amended by R-09-0032, effective January 1, 2011.

NOTES:
ARCrP Rule 31.14. Request for oral argument; precedence of criminal appeals
Request of oral argument. -- An appeal may be scheduled for oral argument if, on or before the earlier of the ten (10) days after the date the reply brief is due or filed, a party files with the Court of Appeals a separate instrument requesting oral argument. If any party believes that extended argument should be permitted, the reasons therefor should be filed as part of the request for oral argument, or in a separate instrument, no later than 10 days after the request for oral argument is filed. The clerk of the appellate court shall notify the parties of the specific time and place at which oral argument will be heard at least 20 days prior to the date fixed for oral argument. The notice shall inform the parties as to the appellate court's allocation of time to each side at oral argument. An appeal may be considered and decided without oral argument if the appellate court determines that (1) the appeal is frivolous; (2) the dispositive issue or set of issues presented has been recently authoritatively decided; or (3) the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument. When such a determination is made that a case is to be submitted without oral argument, the clerk of the appellate court shall give the parties prompt written notice of such determination, and any party shall have 10 days from the date of such notice from the clerk in which to file a statement setting forth the reasons why, in the opinion of that party, oral argument should be heard.

Precedence of criminal appeals. -- Appeals in criminal cases shall have precedence over all other appeals except those from juvenile actions or where otherwise provided by law. Appeals under Rule 31.2 (b) shall have precedence over all other appeals.
HISTORY: Amended Mar. 31, 1992, effective June 1, 1992; amend. June 10, 1997, effective January 1, 1998; amend. effective Jan. 1, 2007 by R-05-0036.

NOTES:
COMMENT TO 1992 AMENDMENT
The 1992 amendment was deemed necessary to correct an existing inequity, whereby oral argument was mandatory in civil cases but discretionary in criminal cases. The revision was intended to make oral argument more readily available to criminal litigants while reducing unnecessary oral argument in civil cases.

[1975 AMENDMENT]
RULE 31.14 (A) Whether or not it has received or denied a request for oral argument, the court may request it on its own initiative. The phrase "at any time" is meant to include the period after a motion for rehearing has been granted by the appellate court or after a petition for review has been granted by the supreme court.

This section allows the appellate court to decide whether oral argument will be heard. In so doing it differs from previous practice. Ariz. Sup. Ct. R. 6 made oral argument automatic upon a party's request.

Requests shall be filed and served in accordance with Rule 31.21.

RULE 31.14 (B) This section is taken form Ariz. Sup. Ct. R. 16 (b) and Ariz. R. Juv. Ct. P. 24 (c) (giving juvenile actions precedence over everything except extraordinary writs and special actions).
ARCrP Rule 31.17. Disposition and ancillary orders; warrants of execution
Ancillary orders. -- The appellate court may issue such orders in aid of the proceedings as it deems necessary.

Disposition, in general. -- The appellate court may reverse, affirm, or modify the action of the lower court and issue any necessary and appropriate orders.

Fixing the date of execution after a death sentence is affirmed.

Initial execution warrant. After a conviction and sentence of death are affirmed and the first post-conviction relief proceeding pursuant to Rule 32.4(a) has concluded by the denial of a petition for review filed pursuant to Rule 32.9(c) or, if no petition for review has been filed, upon the filing of a notice by the state that the time for filing such petition has expired, the Supreme Court shall fix a twenty-four hour time period for execution of the sentence and shall issue a warrant of execution.

Subsequent execution warrant. In the event the warrant is stayed by any court beyond the time period fixed for the execution of sentence, the Supreme Court shall issue subsequent warrants of execution upon motion by the state.

Date and time of execution. The time period for execution shall be fixed for thirty-five days after the Supreme Court's order denying review, order acting on a notice of non-filing, or order granting a motion for warrant of execution, unless good cause renders it impracticable to fix it at thirty-five days, but in such case no more than sixty days. The warrant of execution shall state the date for commencement of the execution time period. The warrant shall further state that it is valid for twenty-four hours beginning at an hour to be designated by the director of the state department of corrections. The warrant shall include an order to the director to provide written notice of the designated hour to the Supreme Court and parties at least twenty calendar days prior to the execution date. The warrant shall authorize the director to carry out the execution at any time during the duration of the warrant.

Return on warrant. The superintendent of the state prison shall make a return on the warrant to the Supreme Court showing the manner and time of execution.

Modification of judgment upon finding of insufficient evidence at trial. -- When the appellate court finds that the evidence introduced at trial is not legally sufficient to establish the defendant's guilt of the offense of which he was convicted, but is legally sufficient to establish his guilt of a necessarily included offense, it may modify the judgment to one of conviction for the lesser offense and remand the case to the trial court for resentencing.

Brief form of opinion. -- The appellate court may issue a brief form of opinion where the facts and issues of law are clear and the interests of justice will be served.

HISTORY: Amended July 28, 1993, effective Dec. 1, 1993; amend. June 30, 1997, effective December 1, 1997; amended June 25, 1998.

NOTES:
[1973 PROMULGATION]
This rule is intended to replace Ariz. Sup. Ct. R. 22 and the 1956 Arizona Rules of Criminal Procedure, Rule 364.

RULE 31.17 (A) This section reflects the appellant court's inherent power to issue orders during the course of appeal regarding release pending appeal, appointment of counsel, referral to the trial court for an evidentiary hearing, and any other appropriate matter.

RULE 31.17 (B) Section (b) is meant to encompass the powers granted by Ariz. Rev. Stat. Ann. §§ 13-1716 and 13-1717 (1956) and includes affirming, reversing or modifying the judgment, correcting or reducing sentence and affirming, modifying, or vacating any order made by the lower court, including but not limited to those concerning new trials, arrest of judgment, or dismissal of the indictment or information. The appellate court may, in addition, remand a case for a new trial, and take any other action that appears just and proper under the circumstances. Cf. Ariz. R. Juv. Ct. P. 27.

RULE 31.17 (C) The provision alters the language of Ariz. Sup. Ct. R. 22 (d) so as to provide for the automatic appeal from a sentence of death. See comment to Rule 31.2 (b).

RULE 31.17 (D) This rule is based on N.Y. Crim. Pro. L. § 470.15 (2) (a) (McKinney 1971) and follows an already established Arizona procedure. See Ariz. Rev. Stat. Ann. § 13-1716 (1956) (power to modify judgment); State v. Hunter, 102 Ariz. 472, 433 P.2d 22 (1967); State v. Rowland, 12 Ariz. App. 437, 471 P.2d 322 (1970). When the appellate court concludes that modification is appropriate under this rule, it is to remand the case to the trial court for resentencing.

RULE 31.17 (E) Summary opinions are opinions in the form previously used by the supreme court for per curiam denials of writs of habeas corpus, e.g., Pina v. State, 100 Ariz. 47, 410 P.2d 658 (1966); Leonard v. State, 101 Ariz. 42, 415 P.2d 570 (1966). They are limited to those cases in which the issues presented have been clearly decided in past opinions. A similar but broader rule has been adopted by the United States Court of Appeals for the District of Columbia Circuit. See D.C. Cir. R. 13 (c). Ariz. Const. art. 6, § 2 (Cum. Supp. 1972) and Ariz. Rev. Stat. Ann. 12-120.17(A) (Cum. Supp. 1972) require that appellate decisions "be in writing and [have] the grounds stated," but do not demand a full exposition of the facts of the case or of the reasoning supporting the decision.
ARCrP Rule 31.19. Petition for review
Time for filing; cross-petition. -- Within 30 days after the filing of a decision or within 15 days after the clerk has mailed notice of the determination of a motion for reconsideration, any party may file with the clerk of the Court of Appeals a petition for review by the Supreme Court. A cross-petition for review may be filed with the clerk of the Supreme Court within 15 days after service of a petition for review.

Priority of motion for reconsideration. -- In the event of the timely filing of a petition for review prior to the disposition of a motion for reconsideration, further proceedings relating to the petition or cross-petition for review shall be stayed until the clerk of the Court of Appeals has mailed notice of the court's ruling on the motion for reconsideration.
If a motion for reconsideration is granted, proceedings relating to the petition or cross-petition for review shall be further stayed until the clerk of the Court of Appeals has mailed notice of the court's ruling on any motion for reconsideration of the decision upon reconsideration, or until the time for filing a motion for reconsideration of such decision upon reconsideration has expired.

In the event a petition or cross-petition has become moot by reason of the granting of a motion for reconsideration, the petitioner or cross-petitioner shall give immediate written notice of such mootness to the clerk of the Court of Appeals prior to the transmittal of the partial record to the clerk of the Supreme Court as provided in Rule 31.19(d).

Form, length and contents. -- The petition and cross-petition for review shall be bound or fastened and shall comply with Rule 31.12. An original and seven copies of the petition or cross-petition and an original and two copies of any separately bound or fastened appendices shall be filed. The parties shall be designated as in the Court of Appeals. Except by permission of the court (1) a petition for review prepared in a proportionately spaced typeface may not exceed 3500 words and may not have an average of more than 280 words per page, including footnotes and quotations; (2) a petition for review prepared in a monospaced typeface may not exceed 10 pages and may not have an average of more than 350 words per page including footnotes and quotations; and (3) a handwritten petition for review may not exceed 12 pages. The petition shall be accompanied by a certificate of compliance that states either (1) that the petition for review uses a proportionately spaced typeface of 14 points or more, is double spaced using a roman font and contains [blank] words, or (2) that the petition for review uses a monospaced typeface of no more than 10.5 characters per inch and does not exceed 10 pages or (3) that the petition for review was handwritten and does not exceed 12 pages. A party preparing this certificate may rely on the word count of the processing system used to prepare the petition for review.

A copy of the Court of Appeals' decision shall be attached to the petition. Where the Court of Appeals' decision is simply an order declining to accept jurisdiction of a special action, a copy of the Superior Court's decision from which the petition for special action was taken shall also be attached to the petition. The petition shall contain concise statements of the following:

The issues which were decided by the Court of Appeals and that the petitioner wishes to present to the Supreme Court for review. The petitioner shall also list, separately and without argument, those additional issues which were presented to, but not decided by, the Court of Appeals and which may need to be decided if review is granted.

The facts material to a consideration of the issues presented to the Supreme Court for review with appropriate references to the record on appeal. No evidentiary matter shall be included unless material to a proper consideration of the issues presented, in which instance a reference shall be made to the record or page of the transcript where such evidence appears.

The reasons the petition should be granted, which may include, among others, the fact that no Arizona decision controls the point of law in question, that a decision of the Supreme Court should be overruled or qualified, that conflicting decisions have been rendered by the Court of Appeals, or that important issues of law have been incorrectly decided.

If there are documents in the record on appeal that are necessary for a determination of the issues raised by the petition or cross-petition, the petitioner and cross-petitioner shall file, simultaneously with a copy of the petition and cross-petition, an appendix consisting only of such documents. If the appendices exceed 15 pages in length, such appendices shall be bound or fastened together separately from the petition and the copy of the Appeals Court's decision or the cross-petition.

Any petition for review presented for filing that does not substantially comply with this rule may, in the discretion of the clerk of the appellate court, be returned to the petitioner by the clerk with written instructions to the petitioner to file a proper petition within 30 days from the date on which the written instructions are mailed to the petitioner.

Transmittal of partial record upon filing of a petition for review. -- Upon the filing of a petition for review, the clerk of the Court of Appeals shall transmit to the clerk of the Supreme Court the original and all copies of the petition, the original and all copies of the briefs filed in the Court of Appeals, and one copy of the decision of the Court of Appeals.

Service and response. -- The petitioner and cross-petitioner shall serve a copy of the petition and cross-petition and any appendices on all parties who have appeared in the Court of Appeals. Any party wishing to oppose the petition or cross-petition may file with the clerk of the Supreme Court a response within 30 days from the date upon which the petition or cross-petition for review is served. The response and any appendices shall comply with form, length, and number of copy requirements of Rule 31.19(c). If there are documents in the record on appeal that are necessary for a determination of the issues raised by the petition or cross-petition, the respondent shall file, simultaneously with a copy of the response, an appendix consisting only of such documents which were not included in the appendix filed with the petition or cross-petition. If the appendices exceed 15 pages in length such appendices shall be bound or fastened together separately from the response. Failure to file a response shall not be considered an admission that the petition should be granted.

If a response is filed, the response shall list, separately and without argument, those additional issues, if any, were presented to, but not decided by, the Court of Appeals, that were not listed by the petitioner, and that may need to be decided if review is granted.

No reply shall be filed by petitioner unless the Court has so directed by specific order, in which event a reply may be filed within the time set by the Court.

Order granting review. -- If the Supreme Court grants review, its order shall specify the issue or issues which are to be reviewed. The Supreme Court may order that the parties file additional briefs or that oral argument be heard, or both. If the order granting review does not provide for supplementation of briefs or for oral argument, either party may, within 15 days after the clerk mails notice of the Court's order, request the Court to do so by motion, specifying reasons for supplementation or for oral argument, or both.

Transmittal of remaining record. -- Upon notification by the clerk of the Supreme Court that a petition or cross-petition for review has been granted, the clerk of the Court of Appeals shall transmit the remaining record on appeal to the clerk of the Supreme Court.

Denial of petition. -- When all petitions and cross-petitions for review have been denied, the clerk of the Supreme Court shall so notify the clerk of the Court of Appeals and the parties, and return the briefs and the petition or cross-petition for review to the clerk of the Court of Appeals.

Dispositions.

If an appeal is resolved by agreement of the parties after a petition for review by the Supreme Court is filed, the Supreme Court may order that the decision of the Court of Appeals be vacated, or that any opinion of the Court of Appeals be redesignated as a Memorandum Decision.

When a review has been granted, the Supreme Court may remand the appeal to the Court of Appeals for reconsideration in light of authority identified in the Supreme Court's order.

If issues were raised in, but not decided by, the Court of Appeals and review has been granted, the Supreme Court may consider and decide such issues, may remand the appeal to the Court of Appeals for decision of such issues, or may make such other disposition with respect to such issues as it deems appropriate.

Motions to extend time. -- The court of appeals shall have authority to grant or deny motions to extend time to file motions for reconsideration of its decisions or opinions or to extend the time to file a petition for review. These motions shall be filed in the court of appeals.

Amicus curiae. -- The Supreme Court may permit participation by amicus curiae as provided for in Rule 31.25 of these rules.

HISTORY: Amended May 24, 1983, effective Sept. 1, 1983; amended Sept. 15, 1987, effective Nov. 15, 1987; amended May 24, 1989, effective Aug. 1, 1989; amended Mar. 28, 1990, effective July 1, 1990; amended Sept. 25, 1990, nunc pro tunc effective Aug. 1,1989; amended Mar. 1, 1994, effective Apr. 1, 1994; amended Apr. 26, 1994, effective June 1, 1994; amended June 10, 1997, effective January 1, 1998; amended Oct. 6, 1998, effective Dec. 1, 1998; amended effective Oct. 12, 2005; amended by R-07-0014 and R-07-0025 Sept. 16, 2008, effective Jan. 1, 2009.

NOTES:
COMMITTEE COMMENT TO THE 1997 AMENDMENTS
The page limit for a petition for review has been changed from 20 pages to 12 pages. The format of a petition for review has been changed to avoid any need to provide a synopsis of the decision below. The appendices no longer have to include every record item referred to in the petition or response. While only record items necessary for a determination of the issues identified in the petition need to be included in the appendix, any factual statement still must refer to a record item so the opposing party and the court can easily locate that portion of the record and ensure that the factual statement is accurate. Any documents filed after the petition are now to be filed with the Supreme Court, not the Court of Appeals, thus speeding up the process of considering the petition. Finally, only an original and two copies of any separate appendices must be filed, as opposed to an original and six copies under the prior rule.

NOTE TO 1989 AMENDMENTS
Notwithstanding any statements to the contrary in the Supreme Court's Supplemental Opinion in State v. Ikirt, 160 Ariz. 113, 770 P.2d 1159 (January 17, 1989), the separate listing, in the petition or a cross-petition for review, or the response thereto, of issues presented to, but not decided by, the Court of Appeals, as required by Rules 23(c) and (e), as amended, shall be sufficient to preserve such issues for review and disposition by the Supreme Court, if necessary.

[1983 AMENDMENT]
[(c)4.] The 1983 amendments to Rule 31.19 contemplate that review will not be sought as a matter of course. Review procedure is intended for those cases in which there is a tenable claim involving substantial issues of law or procedure, or in which serious injustice is claimed to have occurred.

No attempt should be made to include the entire record in the appendix. Where it is necessary for the court to review large portions of the record, a motion should be filed requesting transmittal of the entire record rather than including the entire record as part of the appendix. However, it is contemplated that most issues such as sufficiency of the evidence or lack of competent counsel could ordinarily be supported by summary or by reference to limited portions of the record included in the appendix rather than by the whole record.
[(h)] Note that a response to a petition for review or cross-petition for review should not be filed in the Supreme Court until the time for filing a motion for reconsideration has expired and the Court of Appeals has disposed of any pending motion for reconsideration. Note also that Rule 31.19(b) extends the time for the filing of such responses.

[1973 PROMULGATION]
This provision alters Ariz. Sup. Ct. R. 47 (b) by reducing the period in which to file a petition from 15 to 5 days, and by eliminating the necessity of filing additional copies of the pleadings. Provisions for filing and service are contained in Rule 31.21.

The 1983 amendments to Rule 31.19 contemplate that review will not be sought as a matter of course. Review procedure is intended for those cases in which there is tenable claim involving substantial issues of law or procedure, or in which serious injustice is claimed to have occurred.

No attempt should be made to include the entire record in the appendix. Where it is necessary for the court to review large portions of the record, a motion should be filed requesting transmittal of the entire record rather than including the entire record as part of the appendix. However, it is contemplated that most issues such a sufficiency of the evidence or lack of competent counsel could ordinarily be supported by summary or by reference to limited portions of the record included in the appendix rather than by the whole record.

NOTE TO 1989 AMENDMENTS
Notwithstanding any statements to the contrary in the Supreme Court's Supplemental Opinion in State v. Ikirt, 160 Ariz. 113, 770 P.2d 1159 (January 17, 1989), the separate listing, in the petition or a cross-petition for review, or the response thereto, of issues presented to, but not decided by, the Court of Appeals, as required by Rules 23(c) and (e), as amended, shall be sufficient to preserve such issues for review and disposition by the Supreme Court, if necessary.

COMMITTEE COMMENT TO THE 1997 AMENDMENTS
The page limit for a petition for review has been changed from 20 pages to 12 pages. The format of a petition for review has been changed to avoid any need to provide a synopsis of the decision below. The appendices no longer have to include every record item referred to in the petition or response. While only record items necessary for a determination of the issues identified in the petition need to be included in the appendix, any factual statement still must refer to a record item so the opposing party and the court can easily locate that portion of the record and ensure that the factual statement is accurate. Any documents filed after the petition are now to be filed with the Supreme Court, not the Court of Appeals, thus speeding up the process of considering the petition. Finally, only an original and two copies of any separate appendices must be filed, as opposed to an original and six copies under the prior rule.

JUDICIAL DECISIONS
ANALYSIS

IN GENERAL.
The supreme court is not required to accept petitions for review in any case. State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989).

CONSTRUCTION.
Other than an appeal pursuant to this section, there is nothing in either the Rules of Criminal Procedure or the Superior Court Rules of Appellate Procedure -- Criminal which authorizes the court of appeals to review a final judgment of the superior court. State v. Aguilar, 170 Ariz. 292, 823 P.2d 1300 (Ct. App. 1991).

EXHAUSTION OF APPEALS.
In cases other than those carrying a life sentence or the death penalty, a decision by the court of appeals and its search for error exhausts a defendant's right of appeal in this jurisdiction; thus, when the court of appeals' decision has been rendered, the attorney should advise the defendant about his legal rights, but the attorney has no obligation to seek further relief through the appellate process. State v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984).

ILLUSTRATIVE CASES.
In light of the importance of the issue and the uncertainty of the law on the point, the Supreme Court granted review of rape defendant's claim regarding admission of police expert's testimony about the odds of a random match between defendant's DNA and DNA extracted from semen stains at the scene of the crime. State v. Johnson, 186 Ariz. 329, 922 P.2d 294 (1996).

JURISDICTION.
To permit a petitioner to file a petition for review in the court of appeals from a case that originated in city court would impermissibly enlarge Rule 32 jurisdiction. State v. Aguilar, 170 Ariz. 292, 823 P.2d 1300 (Ct. App. 1991).

NO GROUNDS FOR APPEAL.
If defendant's counsel has conscientiously searched the record for error and has found no meritorious grounds for appeal in the first instance, then counsel should not bring the case to the supreme court by petitioning for review. State v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984).

PETITION.
A rule 31.19 petition for review is the pleading the parties file to engage supreme court review of a court of appeals decision. This rule specifically only encompasses review by the supreme court from a court of appeals decision; it does not cover review of a lower court decision by the court of appeals. State v. Aguilar, 170 Ariz. 292, 823 P.2d 1300 (Ct. App. 1991).

PROCEDURE.
District court found that the U.S. Court of Appeals for the Ninth Circuit's decision in Insyxiengmay v. Morgan, which held that a prisoner's claims were sufficiently presented to the Washington Supreme Court, although not argued in the prisoner's petition for review, because the original petition was attached and contained the federal grounds for each claim, did not apply to claims which an Arizona inmate made in his petition for postconviction relief because it was based on Washington law, and the Arizona Rules of Criminal Procedure were different. Detrich v. Schriro, -- F. Supp. 2d --, 2005 U.S. Dist. LEXIS 30292 (D. Ariz. November 29, 2005).

Although a defendant has the right to an appeal in a criminal case, the appeal must be properly initiated by presenting a record on appeal which contains the material to which objection is made and by raising and arguing the issue relied upon in the appeal. State v. Ikirt, 160 Ariz. 113, 770 P.2d 1159, cert. denied, 493 U.S. 872, 110 S. Ct. 202, 107 L. Ed. 2d 156 (1989).

RIGHT OF APPEAL.
Once the defendant has been given the appeal to which he has a right, state remedies have been exhausted. State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989).
ARCrP Rule 31.22. Supplemental citation of legal authority
When pertinent and significant authorities come to the attention of a party after the party's brief has been filed, or after oral argument but before decision, a party may supplement the citation of legal authority previously presented in that party's appeal brief or briefs by filing with the appellate court a list of supplemental citations of legal authority. If filed less than 5 days before oral argument, a list shall not be assured of consideration by the court at oral argument unless good cause is shown for a later filing; provided, however, that no supplemental citation of legal authority shall be rejected for filing on the grounds that it was filed less than 5 days before oral argument. The list of supplemental citations shall clearly identify by page number which portion or portions of the party's appeal brief is intended to be supplemented thereby, and the relevant page or pages of the supplemental authority, and shall further state concisely and without argument the legal proposition for which each supplemental authority is cited. This list shall be typewritten in pica type and double spaced on 8.5 by 11 inch white, opaque, unglazed paper. The list shall contain a caption setting forth the name of the Court, the title of the case, the case number and a brief descriptive title.

HISTORY: Added Jan. 14, 1991, effective Jan. 14, 1991.
ARCrP Rule 31.23. Issuance of mandates by appellate courts and mandates from United States Supreme Court

Mandates by appellate courts.
If there has been no motion for reconsideration and no petition for review filed, the clerk of the Court of Appeals shall issue the mandate at the expiration of the time for the filing of such motion or petition.

If a motion for reconsideration has been filed, the mandate shall not issue until the motion has been disposed of and until the expiration of the time provided by Rule 31.19 for the filing of a petition for review.

If a petition for review is filed, the clerk of the Court of Appeals shall not issue a mandate until 15 days after the receipt by the clerk of the Court of Appeals of an order of the Supreme Court denying the petition for review.

When the Supreme Court has filed any decision which requires the issuance of a mandate, the clerk of the Supreme Court shall not issue the mandate until 15 days after the filing of the decision, or if a motion for reconsideration has been filed, 15 days after the motion is disposed of.

Any exhibits or other objects transmitted as originals by the clerk of the superior court to the appellate court pursuant to Rule 31.8 shall be returned with the mandate to the clerk of the appropriate court or agency. The papers, exhibits, minute entries or other objects which were transmitted as certified copies to the appellate court may be returned with the mandate to the clerk of the appropriate court or agency, or destroyed after issuance of the mandate pursuant to rule or administrative order of the appellate court.

Stay of mandate pending application for certiorari.
Automatic stay in capital cases affirming death sentence. -- The clerk of the Supreme Court shall issue the mandate in capital cases when the time for filing a petition for writ of certiorari in the United States Supreme Court from the decision affirming the defendant's conviction and sentence on direct appeal has expired, or, in a case in which a petition for writ of certiorari has actually been filed, when the clerk of the Supreme Court is notified by the United States Supreme Court that the petition has been denied. The filing of a petition for rehearing of the denial of a petition for writ of certiorari shall not delay the issuance of the mandate.

In all other cases.
A stay of the issuance of the mandate of either the Court of Appeals or the Arizona Supreme Court pending application to the United State Supreme Court for a writ of Certiorari may be granted upon request.

An application for a stay of the issuance of a mandate of the Arizona Supreme Court may be filed with the clerk of the Arizona Supreme Court within 15 days after the filing of the court's opinion, memorandum decision or order denying a motion for reconsideration.

An application for a stay of the issuance of a mandate of the Court of Appeals may be filed with the clerk of the Court of Appeals within 15 days after an order of the Supreme Court denying a petition for review, or in any other situation requiring the Court of Appeals to issue a mandate.

The stay shall not exceed 90 days unless the period is extended for cause shown. If, during the period of the stay, there is filed with the clerk of the appropriate court a notice that the party who has obtained the stay has filed a petition for a writ of certiorari, the stay shall continue until the clerk is notified by the United States Supreme Court that the writ has been denied or, in a case in which the writ has been granted, that a mandate has been issued by the United States Supreme Court.

Mandates from United States Supreme Court. -- Upon receipt of a mandate by the clerk of the appellate court from the Supreme Court of the United States in any action brought to the appellate court on appeal and taken from the appellate court by appeal or writ of error or certiorari to the Supreme Court of the United States, the clerk shall forthwith issue under the clerk's hand and the seal of the appellate court a remittitur to the superior court of the county in which the original judgment was rendered, commanding such court to take such action in the premises as is proper under the mandate.

HISTORY: Added Feb. 24, 1994, effective June 1, 1994.
ARCrP Rule 31.25. Amicus curiae
Filing and form of brief; participation in oral argument. -- A brief of an amicus curiae may be filed only if accompanied by written consent of all parties or by leave of court granted upon motion. The brief shall be lodged with the motion, if any. The motion for leave shall identify the interest of the applicant, state that the applicant has read the relevant brief, petition or motion and shall state the reasons accepting applicant's amicus curiae brief would be desirable. A party desiring to respond to the amicus brief shall file the response within 20 days of service of a brief filed with consent, or within 20 days of the Court's order granting a motion for leave to file an amicus brief. Rules 31.13, Arizona Rules of Criminal Procedure, shall govern the form of an amicus brief, except that it shall not exceed 12,000 words in length if done in proportionately spaced typeface, or 35 pages if done in monospaced typeface, unless otherwise permitted by the court. An amicus curiae may participate in the oral argument only by leave of the appellate court.
Time and length limits applicable to amicus briefs in the Supreme Court. -- Parties desiring to file an amicus curiae brief shall file such briefs as provided by this rule, except that an amicus curiae brief relating to a special action petition shall be filed as expeditiously as possible after the special action petition is filed, as provided for in Rule 7(g), Rules of Procedure for Special Actions.

Briefs filed prior to a decision by the Court to grant review. -- Unless otherwise ordered by the Court, an amicus brief in support of a petition for review or a response to a petition for review accompanied by written consent of all parties, or a motion for leave to file the brief shall be filed no later than 21 days after the filing of the response to the petition for review. Such briefs shall comply with the form and length requirements of Rule 31.19(c) exclusive of any appendix.

Briefs filed after the Court has granted review. -- After the Court has granted review, and unless otherwise ordered, an amicus brief accompanied by written consent of all parties, or a motion for leave to file an amicus brief, shall be filed no later than 10 days after the date ordered by the Court at the time review was granted for filing supplemental briefing by the parties in the particular case. Such briefs shall comply with rule 31.13 and shall not exceed the page limitation imposed for the parties' supplemental briefs.

Responses to amicus curiae briefs. -- A party wishing to respond to an amicus brief shall file the response within 20 days of service of a brief filed with consent, or within 20 days of the Court's order granting a motion for leave to file an amicus brief. The response shall comply with the page and formatting requirements imposed on the particular amicus brief to which it relates.

Late-filed briefs and responses. -- Leave for filing a late amicus or response brief shall be granted only for good cause shown.

HISTORY: Added Oct. 6, 1998, effective Dec. 1, 1998; amended by R-07-0014 and R-07-0025 Sept. 16, 2008, effective Jan. 1, 2009.

NOTES:
COMMENT TO THE 1998 AMENDMENTS
Although the 1998 amendments to Rule 31.25 permit amicus briefs to be filed without leave of court with consent of all parties, amicus curiae should keep in mind the purpose of an amicus brief. As the name implies, an amicus curiae brief should assist the Court, not advocate a particular litigant's case. Ideally, it should not duplicate the briefs of the parties, nor merely extend the length of a litigant's brief. Rather, it should provide a broader, more abstract presentation of law that is not narrowly tied to the facts of the case. It should provide background and context for the Court's decision. Amicus briefs should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case, or when the amicus can provide information, perspective, or argument that can help the Court beyond the help that the lawyers for the parties have provided.
Additionally, an amicus brief should clearly identify the group or organization sponsoring the brief and the interest of the sponsoring entity in the outcome of the appeal. Counsel for a party should not be permitted to write the amicus brief in whole or in part.
ARCrP Rule 31.27. Extensions of time; notification of victim
In any capital case, if the victim has filed a notice of appearance as specified in A.R.S. § 13-4042, a party seeking an extension of time to file a brief must provide notice of the request to the victim. Notice shall be provided through the prosecutor's office handling the appellate proceeding, unless the victim specifies a different method in the notice of appearance. The victim may specify in the notice of appearance whether notification should be served directly on the victim or on another person, including the prosecutor, and whether service may be made electronically, by telephone, or by regular mail. If the victim has requested direct notification, the party seeking an extension of time shall serve notice on the victim within 24 hours of filing the extension request. If the prosecutor has the duty to notify the victim on behalf of the defendant, the prosecutor shall serve notice within 24 hours of receipt of the extension request. Service shall be made in the manner specified in the notice of appearance, or if no method is specified, by regular mail. In ruling on any request for an extension of a time limit set in this rule, the court shall consider the rights of the defendant and any victim to prompt and final conclusion of the case.

HISTORY: Added Jan. 30, 2002, effective June 1, 2002; adopted as modified by R-06-0012, effective Sept. 11, 2006.

NOTES:
COMMENT
To implement the victim's right to a prompt and final conclusion of the case, see Ariz. Const. Art. 2, § 2.1(A)(10), the victim shall be permitted to file a statement with the court, at the inception of the proceeding, which expresses his or her views with respect to any extensions; or the victim can request, pursuant to A.R.S. § 13-4411, that the prosecutor's office communicate the victim's views to the court concerning any extensions.
ARCrP Rule 32.6(b), (c)
Defense is given 15 days to file response. The court has 20 days after defendant’s reply [is] due to determine whether an evidentiary hearing is required.
ARC Rule 8.2. Time limits
General. -- Subject to the provisions of Rule 8.4, every person against whom an indictment, information or complaint is filed shall be tried by the court having jurisdiction of the offense within the following time periods:

Defendants in custody. -- 150 days from arraignment if the person is held in custody, except as provided in subsection (a), paragraph (3) of this section.

Defendants released from custody. -- 180 days from arraignment if the person is released under Rule 7, except as provided in subsection (a), paragraph (3) of this section.

Complex cases. -- 270 days from arraignment if the person is charged with any of the following:

First degree murder, except as provided in paragraph (a)(4) of this rule;

Offenses that will require the court to consider evidence obtained as the result of an order permitting the interception of wire, electronic or oral communication;

Any complex cases as determined by a written factual finding by the court.

Capital Cases. -- Eighteen months from arraignment, if the state files a notice of intent to seek the death penalty.

Waiver of appearance at arraignment. -- If a person has waived an appearance at arraignment pursuant to Rule 14.2, the date of the arraignment held without the defendant's presence shall be considered the arraignment date for purposes of subsection (a), paragraphs (1), (2), (3), and (4) of this rule.

New trial. -- A trial ordered after a mistrial or upon a motion for a new trial shall commence within 60 days of the entry of the order of the court. A trial ordered upon the reversal of a judgment by an appellate court shall commence within 90 days of the service of the mandate of the Appellate Court.

Extension of time limits. -- These time limits may be extended pursuant to Rule 8.5.

Trial dates. -- In all superior court cases except those in which Rule 8 has been suspended pursuant to Rule 8.1(e), the court shall, either at the time of arraignment in superior court or at a pretrial conference, set a trial date for time certain.
ARS 12-541 Statute Of Limitations For Civil Suits
Malicious prosecution; false imprisonment; libel or slander; seduction or breach of promise of marriage; breach of employment contract; wrongful termination; liability created by statute; one year limitation
There shall be commenced and prosecuted within one year after the cause of action accrues, and not afterward, the following actions:
2.   For malicious prosecution, or for false imprisonment, or for injuries done to the character or reputation of another by libel or slander.
3.   For damages for seduction or breach of promise of marriage.
4.   For breach of an oral or written employment contract including contract actions based on employee handbooks or policy manuals that do not specify a time period in which to bring an action.
5.   For damages for wrongful termination.
6.   Upon a liability created by statute, other than a penalty or forfeiture.
Snyder v. Donato, 211 Ariz. 117
Accordingly, we accept jurisdiction and grant relief from the order designating this as a complex case. A "complex case" is a case so complicated, by virtue of its nature or because of the evidence required, that the ordinary limits for the time to trial are insufficient and must be extended so as to afford the party more time to prepare in order to fairly and fully present its case. Because this is not a "complex case," we grant relief from the court's order. Our holding, however, does not preclude the court from granting a continuance on the basis of another rule if it properly finds that the circumstances justify it.

Transcripts

Hardy v. US, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964)
Griffin v. Illinois, 351 U.S. 12, 34, 35 (1956)
Douglas v. California, 372 U.S. 353, 361 (1963)
On direct appeal, if you're determined to be indigent, you'll would be entitled to transcripts of the entire trial proceedings. (Note: The free transcripts that you are entitled to will be given to your attorney when counsel is appointed. This case law does not entitle you to your own personal copy, but once he is done with his part, the entire file must be turned over to defendant upon request which includes any and all transcripts.)
Ex Parte Perales, 215 S.W.3d 418
The Court of Criminal Appeals, Johnson, J., held that the record supported habeas court's determination that no evidence supported conviction. Relief granted.
State v. Tomlinson, 121 Ariz. 313
Presumption was that defendant needed transcript of first trial for effective defense. State failed to carry burden of establishing contrary because it did not prove that defendant had alternative available that was equivalent to trial transcript.

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