Arizona Attorney - March 2014

must end due to a sunset provision cannot satisfy the third factor. Absent further legislative action, the business could not continue to operate past the sunset date. Next Gen Capital, LLC v. Consumer Lending Associates, LLC, 1 CA-CV

12-0624, 12/19/13.

Rule 9(a) of the Arizona Rules of Civil Appellate Procedure Does Not Apply to Statutory Special Actions Filed in Superior Court. Arizona Special Action Rule 7(i) sets forth the “Special Appellate Court Provisions” governing special actions in the court of appeals, and provides that the civil appellate rules generally apply to special action appeals filed in that court. Special Action Rule 1(b) specifies which special action rules apply to statutory special actions, and provides that “the provisions of this Rule as to parties, procedure, interlocutory orders and stays, and judgments shall apply [to statutory special actions].” The special action rules referenced in Rule 1(b) are Rules 2, 4, 5 and 6—not Rule 7.

Accordingly, under the principle of expression unius est exclusion alterius, Rule 7 cannot apply to statutory special actions. Consequently, Rule 9(a) of the Arizona Rules of Civil Appellate Procedure does not apply to statutory special actions filed in superior court. Rash v. Town of Mammoth, 2

CA-CV 2013-0062, 12/13/13.

COURT OF APPEALS CRIMINAL MATTERS

A trial court’s failure to con-
duct a Rule 17. 6 colloquy before
accepting defense counsel’s stipu-
lation at sentencing that a defen-
dant had two prior felony convic-
tions, while fundamental error,
may not be prejudicial where the
stipulation, combined with the
unobjected-to presentence report
(PSR) reflecting the same priors,
negated any prejudice she/he
might have otherwise suffered as
the result of the error. Though the
omission of a Rule 17. 6 colloquy is
fundamental error, the failure only
requires resentencing if the defen-
dant was actually prejudiced by the
omission. Despite its holding, the
Court of Appeals cautioned trial
courts against affording such
unobjected-to PSR’s dispositive
effect as to prior convictions dur-
ing sentencing, thereby obviating
the need to conduct the required
colloquy or put the state to its
proof, as the proper conducting
of the Rule 17. 6 required collo-
quy will avoid any unnecessary
post-trial proceedings. State v.

Gonzales, 1 CA-CR 12-0691, 12/19/13.

Although a trial court may
commit fundamental error in an
attempted second-degree murder
case by improperly instructing
the jury that it may return a
guilty verdict upon a showing
that the defendant “[k]new that
his conduct would cause … seri-
ous physical injury,” reversal is
not required where there is no
prejudice because the State
repeatedly and properly argued
that the evidence would and did
show that he “tried to kill the vic-
tim,” the evidence overwhelming
showed that he had done so and did
not show that he had only intended
to cause serious physical injury
to the victim, and the defendant
claimed that he was misidentified as
the assailant or had nothing to do
with the underlying incident. The
crime of attempted second-degree
murder can only be committed if
the defendant intended to kill the
victim or knew that the conduct
would cause death. To show preju-
dice from such a faulty instruction,
the defendant “must show that a
reasonable” and properly instructed
jury “could have reached a different
result.” State v. Dickinson, 1 CA-CR

12-0479, 12/17/13.

Though a defendant may not be found on appeal to have invited error by merely acquiescing to a trial court’s use of a verdict form that incorrectly treats manslaughter upon sudden quarrel or heat of passion as a lesser-included offense of second-degree murder, if he fails to argue on appeal that the error is fundamental in nature, and the reviewing