Assigned to JUD                                                                                                  FOR CAUCUS & FLOOR ACTION

ARIZONA STATE SENATE

Forty-seventh Legislature, Second Regular Session

AMENDED

FACT SHEET FOR S.B. 1176

victims’ rights; failure to comply

Purpose

            Specifies the failure to comply with a victim’s constitutional or statutory right is a ground for the victim to request a reexamination proceeding and establishes procedures and guidelines for the proceeding.

Background

            In 1990, Arizona voters passed Proposition 104, a ballot initiative that provided for a  Victims’ Bill of Rights.  In 1991, the Arizona Legislature passed statutes to define and implement the rights accorded to victims of crimes pursuant to Article II, Section 2.1 of the Arizona Constitution.  These rights include, among other things, the right to be treated with fairness, respect and dignity, and to be free from intimidation, harassment or abuse throughout the criminal justice process; the right to be informed of victims’ constitutional rights; the right to be heard at any proceeding involving a post-arrest release decision, a negotiated plea and sentencing; and the right to a speedy trial or disposition and prompt and final conclusion of the case after the conviction and sentence.  In addition, victims may seek an order, bring a special action or file a notice of appearance in an effort to enforce any right guaranteed to victims under the victims’ bill of rights (A.R.S. § 13-4437).  Prosecutors are responsible for informing victims of their rights.

            Section 13-4436, Arizona Revised Statutes, was enacted in 1993 and stipulates that a victim must be notified of, and is afforded the right to be present during, a  post-conviction proceeding.  Unless the prisoner is discharged from the prisoner’s sentence, failure to use reasonable efforts to provide notice and a right to be present or heard at a proceeding is grounds for the victim to set aside the post-conviction release until the victim is given the opportunity to be heard or present.  Section 13-4436, Arizona Revised Statutes, also requires that this reexamination proceeding or any other proceeding that is based on failure to perform a duty or provide a right must commence within 30 days from the time at which the appropriate parties are given notice that the victim is exercising his or her right to a reexamination proceeding for post-conviction release proceedings or another proceeding based on the failure to perform a duty or right.  Laws 1993, Chapter 255, § 101, stated that the legislative intent of A.R.S. § 13-4436 relates only to “parole, work furlough, home arrest, earned release credits and other early release program.” 

            The fiscal impact associated with this legislation is undetermined, but an increase in reexamination proceedings could increase operating costs for Arizona courts.

Provisions

1. Allows a victim to request a reexamination proceeding within ten days of a proceeding at which the victim’s right was denied or with leave of the court for good cause shown.

2. Requires the court to afford the victim a reexamination proceeding, if the victim so requests, to consider the issues raised by the denial of a victim’s right.

3. Requires that a court reconsider any decision that arises from a proceeding in which a victim’s rights were not protected and ensure that the victim’s rights are thereafter protected.

4. Allows a victim to seek to set aside a sentence if reasonable efforts to perform a duty or provide a right were not attempted.

5. Specifies that the failure to use reasonable efforts to perform a duty or provide a right is not cause to seek to set aside a conviction after trial.

6. Specifies that a failure to afford a victim his or her victim’s rights is never grounds for providing a new trial.

7. Permits a victim from making a motion to reopen a plea or sentence if all of the following apply:

a. the victim was given notice of a plea or sentencing.

b. the victim was not voluntarily absent from the proceeding.

c. the victim has asserted the right to be heard before or during the proceeding.

d. the victim has asserted the right to be heard before or during the proceeding at issue and such right was denied.

e. the accused has not pled to the highest offense charged, in the case of a plea.

8. Specifies that the request for a reexamination proceeding does not affect the victim’s right to restitution, which the victim may seek to enforce at any time.

9. Makes technical and conforming changes.

10. Becomes effective on the general effective date.

Amendments Adopted by Committee

1. Places time limits on the request for a reexamination proceeding.

2. Modifies and adds guidelines for the reexamination proceeding.

Senate Action

JUD     2/6/06     DPA     5-1-2

Prepared by Senate Research

February 13, 2006

JE/DL/ac