SB1286 - 481R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 13-804, Arizona Revised Statutes, is amended to read:

START_STATUTE13-804. Restitution for offense causing economic loss; fine for reimbursement of public monies

A. Upon On a defendant's conviction for an offense causing economic loss to any person, the court, in its sole discretion, may order that all or any portion of the fine imposed be allocated as restitution to be paid by the defendant to any person who suffered an economic loss caused by the defendant's conduct.

B. In ordering restitution for economic loss pursuant to section 13‑603, subsection C or subsection A of this section, the court shall consider all losses caused by the criminal offense or offenses for which the defendant has been convicted.

C. The court shall not consider the economic circumstances of the defendant in determining the amount of restitution.

D. Restitution payments that are ordered pursuant to section 13‑603 and this section shall not be stayed if the defendant files a notice of appeal, and the payments may not be held by the court pending the outcome of an appeal unless there are reasonable grounds to believe that the conviction may be set aside on a motion for a new trial, reversed on appeal or vacated in a postconviction proceeding. The court shall stop holding any payments if the defendant fails to diligently prosecute the appeal.

E. After the court determines the amount of restitution, the court or a staff member designated by the court, including a probation officer, shall specify the manner in which the restitution is to be paid. In deciding the manner in which the restitution is to be paid, the court or a staff member designated by the court, including a probation officer, shall make reasonable efforts to contact any victim who has requested notice pursuant to sections 13‑4415 and 13‑4417, shall take into account the views of the victim and shall consider the economic circumstances of the defendant. In considering the economic circumstances of the defendant, the court shall consider all of the defendant's assets and income, including workers' compensation and social security benefits. The court shall make all reasonable efforts to ensure that all persons who are entitled to restitution pursuant to a court order promptly receive full restitution. The court may enter any reasonable order necessary to accomplish this. If a victim has received reimbursement for the victim's economic loss from an insurance company, a crime victim compensation program funded pursuant to section 41‑2407 or any other entity, the court shall order the defendant to pay the restitution to that entity. If a victim has received only partial reimbursement for the victim's economic loss, the court shall order the defendant to pay restitution first to the victim and then to the entity that partially reimbursed the victim. If a probation, parole or community supervision officer has reason to believe that court ordered restitution is not being made, the officer shall report to the court supervising the probationer or the board of executive clemency that the defendant has failed to make restitution in a timely manner and the court or the board of executive clemency may revoke the defendant's probation, parole or community supervision.

F. If more than one defendant is convicted of the offense which that caused the loss, the defendants are jointly and severally liable for the restitution.

G. If the court does not have sufficient evidence to support a finding of the amount of restitution or the manner in which the restitution should be paid, it may conduct a hearing upon on the issue according to procedures established by court rule of court. The court may call the defendant to testify and to produce information or evidence. The state does not represent persons who have suffered economic loss at the hearing but may present evidence or information relevant to the issue of restitution.

H. After making the determinations in subsection B of this section the trial court shall enter a restitution order for each defendant which that sets forth all of the following:

1. The total amount of restitution the defendant owes all persons.

2. The total amount of restitution owed to each person.

3. The manner in which the restitution is to be paid.

I. The restitution order under subsection H of this section may be supported by evidence or information introduced or submitted to the court before sentencing or any evidence previously heard by the judge during the proceedings.

J. A restitution lien shall be created in favor of the state for the total amount of the restitution, fine, surcharges, assessments, costs, incarceration costs and fees ordered, if any.

K. Notwithstanding any other law, a restitution lien is created in favor of a victim of the defendant ordered to make restitution. Monies received monthly from the defendant shall be applied first to satisfy the restitution order entered by the court and the payment of any restitution in arrears. Any monies that are owed by this state to a person who is under a restitution order shall be assigned first to discharge the restitution order, including any tax refund that is owed to the defendant.

L. If the defendant, the state or persons entitled to restitution pursuant to a court order disagree with the manner of payment established in subsection E of this section, the defendant, court or person entitled to restitution may petition the court at any time to change the manner in which the restitution is paid. Before modifying the order pertaining to the manner in which the restitution is paid, the court shall give notice and an opportunity to be heard to the defendant, the state and, upon on request, any persons entitled to restitution pursuant to a court order. END_STATUTE

Sec. 2. Section 13-810, Arizona Revised Statutes, is amended to read:

START_STATUTE13-810. Consequences of nonpayment of fines, fees, restitution or incarceration costs

A. In addition to any other remedy provided by law, including a writ of execution or other civil enforcement, if a defendant who is sentenced to pay a fine, fee, restitution or incarceration costs defaults in the payment of such the fine, fee, restitution or incarceration costs or of any installment as ordered, the clerk of the court imposing the fine, fee, restitution or incarceration costs shall notify the prosecutor, the sentencing court and any person entitled to restitution pursuant to a court order. The court, on motion of the prosecuting attorney, on petition of any person entitled to restitution pursuant to a court order or on its own motion, shall require the defendant to show cause why the defendant's default should not be treated as contempt and may issue a summons or a warrant of arrest for the defendant's appearance.

B. At any hearing on the order to show cause the court, the prosecuting attorney or a person entitled to restitution may examine the defendant under oath concerning the defendant's financial condition, employment and assets or on any other matter relating to the defendant's ability to pay restitution.

C. If the court finds that the defendant has wilfully failed to pay a fine, a fee, restitution or incarceration costs or finds that the defendant has intentionally refused to make a good faith effort to obtain the monies required for the payment, the court shall find that the default constitutes contempt and may do one of the following:

1. Order the defendant incarcerated in the county jail until the fine, fee, restitution or incarceration costs, or a specified part of the fine, fee, restitution or incarceration costs, is paid.

2. Revoke the defendant's probation, parole or community supervision and sentence the defendant to prison pursuant to law.

3. Enter an order pursuant to section 13‑812. The levy or execution for the collection of a fine, a fee, restitution or incarceration costs does not discharge a defendant who is incarcerated for nonpayment of the fine, fee, restitution or incarceration costs until the amount of the fine, fee, restitution or incarceration costs is collected.

D. If the court finds that the default is not wilful and that the defendant cannot pay despite sufficient good faith efforts to obtain the monies, the court may take any lawful action including:

1. Modify the manner in which the restitution, fine, fee or incarceration costs are to be paid.

2. Enter any reasonable order which that would assure compliance with the order to pay.

3. Enter an order pursuant to section 13‑812. The levy or execution for the collection of a fine, a fee, restitution or incarceration costs does not discharge a defendant incarcerated for nonpayment of the fine, fee, restitution or incarceration costs until the amount of the fine, fee, restitution or incarceration costs is collected.

E. If a fine, a fee, restitution or incarceration costs are imposed on an enterprise it is the duty of the person or persons authorized to make disbursement from the assets of the enterprise to pay them from those assets, and their failure to do so shall be held a contempt unless they make the showing required in subsection A of this section.

F. Notwithstanding any law to the contrary, a defendant may not be discharged from a term of probation until any restitution ordered pursuant to section 13-603 or 13-804 is paid in full.END_STATUTE

Sec. 3. Section 13-902, Arizona Revised Statutes, is amended to read:

START_STATUTE13-902. Periods of probation

A. Except as provided in section 13-810 or unless terminated sooner, probation may continue for the following periods:

1. For a class 2 felony, seven years.

2. For a class 3 felony, five years.

3. For a class 4 felony, four years.

4. For a class 5 or 6 felony, three years.

5. For a class 1 misdemeanor, three years.

6. For a class 2 misdemeanor, two years.

7. For a class 3 misdemeanor, one year.

B. Notwithstanding subsection A of this section, unless terminated sooner, probation may continue for the following periods:

1. For a violation of section 28‑1381 or 28‑1382, five years.

2. For a violation of section 28‑1383, ten years.

C. When the court has required, as a condition of probation, that the defendant make restitution for any economic loss related to the defendant's offense and that condition has not been satisfied, the court at any time before the termination or expiration of probation may extend the period within the following limits:

1. For a felony, not more than three years.

2. For a misdemeanor, not more than one year.

D. C. Notwithstanding any other provision of law, justice courts and municipal courts may impose the probation periods specified in subsection A, paragraphs 5, 6 and 7 and subsection B, paragraph 1 of this section.

E. D. After conviction of a felony offense or an attempt to commit any offense that is included in chapter 14 or 35.1 of this title or section 13‑2308.01, 13‑2923 or 13‑3623, if probation is available, probation may continue for a term of not less than the term that is specified in subsection A of this section up to and including life and that the court believes is appropriate for the ends of justice.

F. E. After conviction of a violation of section 13‑3824, subsection A, if a term of probation is imposed and the offense for which the person was required to register was a felony, probation may continue for a term of not less than the term that is specified in subsection A of this section up to and including life and that the court believes is appropriate for the ends of justice.

G. F. Beginning November 1, 2006, after conviction of a dangerous crime against children as defined in section 13-604.01, if a term of probation is imposed, the court shall require global position system monitoring for the duration of the term of probation. END_STATUTE

Sec. 4. Section 13-3602, Arizona Revised Statutes, is amended to read:

START_STATUTE13-3602. Order of protection; procedure; contents; arrest for violation; penalty; protection order from another jurisdiction

A. A person may file a verified petition, as in civil actions, with a magistrate, justice of the peace or superior court judge for an order of protection for the purpose of restraining a person from committing an act included in domestic violence. If the person is a minor, the parent, legal guardian or person who has legal custody of the minor shall file the petition unless the court determines otherwise. The petition shall name the parent, guardian or custodian as the plaintiff and the minor is a specifically designated person for the purposes of subsection G of this section. If a person is either temporarily or permanently unable to request an order, a third party may request an order of protection on behalf of the plaintiff. After the request, the judicial officer shall determine if the third party is an appropriate requesting party for the plaintiff. For the purposes of this section, notwithstanding the location of the plaintiff or defendant, any court in this state may issue or enforce an order of protection.

B. An order of protection shall not be granted:

1. Unless the party who requests the order files a written verified petition for an order.

2. Against a person who is less than twelve years of age unless the order is granted by the juvenile division of the superior court.

3. Against more than one defendant.

C. The petition shall state the:

1. Name of the plaintiff. The plaintiff's address shall be disclosed to the court for purposes of service. If the address of the plaintiff is unknown to the defendant, the plaintiff may request that the address be protected. On the plaintiff's request, the address shall not be listed on the petition. Whether the court issues an order of protection, the protected address shall be maintained in a separate document or automated database and is not subject to release or disclosure by the court or any form of public access except as ordered by the court.

2. Name and address, if known, of the defendant.

3. Specific statement, including dates, of the domestic violence alleged.

4. Relationship between the parties pursuant to section 13‑3601, subsection A and whether there is pending between the parties an action for maternity or paternity, annulment, legal separation or dissolution of marriage.

5. Name of the court in which any prior or pending proceeding or order was sought or issued concerning the conduct that is sought to be restrained.

6. Desired relief.

D. A fee shall not be charged for filing a petition under this section or for service of process. On request of the plaintiff, each order of protection that is issued by a municipal court shall be served by the police agency for that city if the defendant can be served within the city. If the defendant cannot be served within the city, the police agency in the city in which the defendant can be served shall serve the order. If the order cannot be served within a city, the sheriff shall serve the order. On request of the plaintiff, each order of protection that is issued by a justice of the peace shall be served by the constable or sheriff for that jurisdiction if the defendant can be served within the jurisdiction. If the defendant cannot be served within that jurisdiction, the constable or sheriff in the jurisdiction in which the defendant can be served shall serve the order. On request of the plaintiff, each order of protection that is issued by a superior court judge or commissioner shall be served by the sheriff of the county. If the defendant cannot be served within that jurisdiction, the sheriff in the jurisdiction in which the defendant can be served shall serve the order. Each court shall provide, without charge, forms for purposes of this section for assisting parties without counsel. The court shall make reasonable efforts to provide to both parties an appropriate information sheet on emergency and counseling services that are available in the local area.

E. The court shall review the petition, any other pleadings on file and any evidence offered by the plaintiff to determine whether the orders requested should issue without further hearing. The court shall issue an order of protection under subsection G of this section if the court determines that there is reasonable cause to believe any of the following:

1. The defendant may commit an act of domestic violence.

2. The defendant has committed an act of domestic violence within the past year or within a longer period of time if the court finds that good cause exists to consider a longer period.

F. For purposes of determining the period of time under subsection E, paragraph 2 of this section, any time that the defendant has been incarcerated or out of this state shall not be counted. If the court denies the requested relief, it may schedule a further hearing within ten days, with reasonable notice to the defendant.

G. If a court issues an order of protection, the court may do any of the following:

1. Enjoin the defendant from committing a violation of one or more of the offenses included in domestic violence.

2. Grant one party the use and exclusive possession of the parties' residence on a showing that there is reasonable cause to believe that physical harm may otherwise result. If the other party is accompanied by a law enforcement officer, the other party may return to the residence on one occasion to retrieve belongings. A law enforcement officer is not liable for any act or omission in the good faith exercise of the officer's duties under this paragraph.

3. Restrain the defendant from contacting the plaintiff or other specifically designated persons and from coming near the residence, place of employment or school of the plaintiff or other specifically designated locations or persons on a showing that there is reasonable cause to believe that physical harm may otherwise result.

4. If the court finds that the defendant is a credible threat to the physical safety of the plaintiff or other specifically designated persons, prohibit the defendant from possessing or purchasing a firearm for the duration of the order. If the court prohibits the defendant from possessing a firearm, the court shall also order the defendant to transfer any firearm owned or possessed by the defendant immediately after service of the order to the appropriate law enforcement agency for the duration of the order. If the defendant does not immediately transfer the firearm, the defendant shall transfer the firearm within twenty‑four hours after service of the order.

5. If the order was issued after notice and a hearing at which the defendant had an opportunity to participate, require the defendant to complete a domestic violence offender treatment program that is provided by a facility approved by the department of health services or a probation department or any other program deemed appropriate by the court.

6. Grant relief that is necessary for the protection of the alleged victim and other specifically designated persons and that is proper under the circumstances.

H. The court shall not grant a mutual order of protection. If opposing parties separately file verified petitions for an order of protection, the courts after consultation between the judges involved may consolidate the petitions of the opposing parties for hearing. This does not prohibit a court from issuing cross orders of protection.

I. At any time during the period during which the order is in effect, a party who is under an order of protection or who is restrained from contacting the other party is entitled to one hearing on written request. No fee may be charged for requesting a hearing. A hearing that is requested by a party who is under an order of protection or who is restrained from contacting the other party shall be held within ten days from the date requested unless the court finds good cause to continue the hearing. If exclusive use of the home is awarded, the hearing shall be held within five days from the date requested. The hearing shall be held at the earliest possible time. An ex parte order that is issued under this section shall state on its face that the defendant is entitled to a hearing on written request and shall include the name and address of the judicial office where the request may be filed. After the hearing, the court may modify, quash or continue the order.

J. The order shall include the following statement:

Warning

This is an official court order. If you disobey this order, you may will be arrested and prosecuted for the crime of interfering with judicial proceedings and any other crime you may have committed in disobeying this order.

K. A copy of the petition and the order shall be served on the defendant within one year from the date the order is signed. An order of protection that is not served on the defendant within one year expires. An order is effective on the defendant on service of a copy of the order and petition. An order expires one year after service on the defendant. A modified order is effective upon on service and expires one year after service of the initial order and petition.

L. Each affidavit, acceptance or return of service shall be promptly filed with the clerk of the issuing court. This filing shall be completed in person, shall be made by fax or shall be postmarked, if sent by mail, no later than the end of the seventh court business day after the date of service. If the filing is made by fax, the original affidavit, acceptance or return of service shall be promptly filed with the court. Within twenty‑four hours after the affidavit, acceptance or return of service has been filed, excluding weekends and holidays, the court from which the order or any modified order was issued shall forward to the sheriff of the county in which the court is located a copy of the order of protection and a copy of the affidavit or certificate of service of process or acceptance of service. On receiving these copies, the sheriff shall register the order. Registration of an order means that a copy of the order of protection and a copy of the affidavit or acceptance of service have been received by the sheriff's office. The sheriff shall maintain a central repository for orders of protection so that the existence and validity of the orders can be easily verified. The effectiveness of an order does not depend on its registration, and for enforcement purposes pursuant to section 13‑2810, a copy of an order of the court, whether or not registered, is presumed to be a valid existing order of the court for a period of one year from the date of service of the order on the defendant.

M. A peace officer, with or without a warrant, may arrest a person if the peace officer has probable cause to believe that the person has violated section 13‑2810 by disobeying or resisting an order that is issued in any jurisdiction in this state pursuant to this section, whether or not such violation occurred in the presence of the officer. Criminal violations of an order issued pursuant to this section shall be referred to an appropriate law enforcement agency. The law enforcement agency shall request that a prosecutorial agency file the appropriate charges. A violation of an order of protection shall not be adjudicated by a municipal or justice court unless a complaint has been filed or other legal process has been requested by the prosecuting agency. The provisions for release under section 13‑3883, subsection A, paragraph 4 and section 13‑3903 do not apply to an arrest made pursuant to this section. For the purposes of this section, any court in this state has jurisdiction to enforce a valid order of protection that is issued in this state and that has been violated in any jurisdiction in this state.

N. A person who is arrested pursuant to subsection M of this section may be released from custody in accordance with the Arizona rules of criminal procedure or any other applicable statute. An order for release, with or without an appearance bond, shall include pretrial release conditions that are necessary to provide for the protection of the alleged victim and other specifically designated persons and may provide for any other additional conditions that the court deems appropriate, including participation in any counseling programs available to the defendant. The alleged victim and other specifically designated persons shall be notified immediately of the arrested person's release from custody.

O. The remedies provided in this section for enforcement of the orders of the court are in addition to any other civil and criminal remedies available. The superior court shall have exclusive jurisdiction to issue orders of protection in all cases if it appears from the petition that an action for maternity or paternity, annulment, legal separation or dissolution of marriage is pending between the parties. A municipal court or justice court shall not issue an order of protection if it appears from the petition that an action for maternity or paternity, annulment, legal separation or dissolution of marriage is pending between the parties. After issuance of an order of protection, if the municipal court or justice court determines that an action for maternity or paternity, annulment, legal separation or dissolution of marriage is pending between the parties, the municipal court or justice court shall stop further proceedings in the action and forward all papers, together with a certified copy of docket entries or any other record in the action, to the superior court where they shall be docketed in the pending superior court action and shall proceed as though the petition for an order of protection had been originally brought in the superior court. Notwithstanding any other law and unless prohibited by an order of the superior court, a municipal court or justice court may hold a hearing on all matters relating to its ex parte order of protection if the hearing was requested before receiving written notice of the pending superior court action. No order of protection shall be invalid or determined to be ineffective merely because it was issued by a lower court at a time when an action for maternity or paternity, annulment, legal separation or dissolution of marriage was pending in a higher court. After a hearing with notice to the affected party, the court may enter an order requiring any party to pay the costs of the action, including reasonable attorney fees, if any. An order that is entered by a justice court or municipal court after a hearing pursuant to this section may be appealed to the superior court as provided in title 22, chapter 2, article 4, section 22‑425, subsection B and the superior court rules of civil appellate procedure without regard to an amount in controversy. No fee may be charged to either party for filing an appeal. For the purposes of this subsection, "pending" means, with respect to an action for annulment, legal separation or dissolution of marriage or for maternity or paternity, either that:

1. An action has been commenced but a final judgment, decree or order has not been entered.

2. A post‑decree proceeding has been commenced but a judgment, decree or order finally determining the proceeding has not been entered.

P. A peace officer who makes an arrest pursuant to this section or section 13‑3601 is not civilly or criminally liable for the arrest if the officer acts on probable cause and without malice.

Q. In addition to persons authorized to serve process pursuant to rule 4(d) of the Arizona rules of civil procedure, a peace officer or a correctional officer as defined in section 41‑1661 who is acting in the officer's official capacity may serve an order of protection that is issued pursuant to this section. Service of the order of protection has priority over other service of process that does not involve an immediate threat to the safety of a person.

R. A valid protection order that is related to domestic or family violence and that is issued by a court in another state, a court of a United States territory or a tribal court shall be accorded full faith and credit and shall be enforced as if it were issued in this state for as long as the order is effective in the issuing jurisdiction. For the purposes of this subsection:

1. A protection order includes any injunction or other order that is issued for the purpose of preventing violent or threatening acts or harassment against, contact or communication with or physical proximity to another person. A protection order includes temporary and final orders other than support or child custody orders that are issued by civil and criminal courts if the order is obtained by the filing of an independent action or is a pendente lite order in another proceeding. The civil order shall be issued in response to a complaint, petition or motion that was filed by or on behalf of a person seeking protection.

2. A protection order is valid if the issuing court had jurisdiction over the parties and the matter under the laws of the issuing state, a United States territory or an Indian tribe and the person against whom the order was issued had reasonable notice and an opportunity to be heard. If the order is issued ex parte, the notice and opportunity to be heard shall be provided within the time required by the laws of the issuing state, a United States territory or an Indian tribe and within a reasonable time after the order was issued.

3. A mutual protection order that is issued against both the party who filed a petition or a complaint or otherwise filed a written pleading for protection against abuse and the person against whom the filing was made is not entitled to full faith and credit if either:

(a) The person against whom an initial order was sought has not filed a cross or counter petition or other written pleading seeking a protection order.

(b) The issuing court failed to make specific findings supporting the entitlement of both parties to be granted a protection order.

4. A peace officer may presume the validity of and rely on a copy of a protection order that is issued by another state, a United States territory or an Indian tribe if the order was given to the officer by any source. A peace officer may also rely on the statement of any person who is protected by the order that the order remains in effect. A peace officer who acts in good faith reliance on a protection order is not civilly or criminally liable for enforcing the protection order pursuant to this section. END_STATUTE

Sec. 5. Section 13-4234, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4234. Commencement of proceedings; notice; appointment of counsel for capital defendants; assignment of judge; stay

A. A proceeding is commenced by timely filing a notice of postconviction relief with the clerk of the court in which the conviction occurred. The clerk of the trial court shall provide notice forms for commencement of first and successive postconviction relief proceedings. The notice shall bear the caption of the original criminal action to which it pertains. The notice in successive postconviction relief proceedings shall comply with section 13‑4232, subsection B. On receipt of the notice, the clerk of the trial court shall file a copy of the notice in the case file of each original action and promptly send copies to the defendant, the defendant's attorney, if known, the county attorney and the attorney general, noting the date and manner of sending the copies in the record. The state shall notify the victim on request.

B. If an appeal of the defendant's conviction or sentence, or both, is pending, the clerk, within five days after the filing of the notice for postconviction relief, shall send a copy of the notice to the appropriate appellate court, noting the date and manner of sending the copy in the record.

C. In noncapital cases, the notice shall be filed within ninety forty‑five days after the judgment and sentence are entered or within thirty fifteen days after the order and mandate affirming the judgment and sentence is issued on direct appeal, whichever is later. A defendant has sixty thirty days from the filing of the notice in which to file a petition. On the filing of a successive notice, a defendant has thirty fifteen days from the filing of the notice in which to file a petition.

D. In capital cases, on the issuance of a mandate affirming the defendant's conviction and sentence on direct appeal, the clerk of the supreme court expeditiously shall file a notice of postconviction relief with the trial court. On the first notice in capital cases, a defendant has sixty days from the filing of the notice in which to file a petition. The supreme court shall appoint counsel pursuant to section 13‑4041, subsection B. All indigent state prisoners under a capital sentence are entitled to the appointment of counsel to represent them in state postconviction proceedings. A competent indigent defendant may reject the offer of counsel with an understanding of its legal consequence. On successive notice in capital cases, the trial court shall appoint the previous postconviction relief counsel of the capital defendant unless counsel is waived pursuant to section 13‑4041, subsection D or good cause exists to appoint another qualified attorney pursuant to section 13‑4041, subsection B. On the filing of a successive notice, a capital defendant or an appointed attorney has thirty days from the filing of the notice in which to file a petition.

E. A defendant who has pled guilty and who is precluded from filing a direct appeal pursuant to section 13‑4033 may be granted an additional thirty fifteen day extension of time in which to file the petition if the defendant's counsel refuses to raise issues and leaves the defendant insufficient time to file a petition within the time limits.

F. On a specific and detailed showing of good cause, a defendant in a noncapital case may be granted up to a sixty day extension of time in which to file the petition. On a specific and detailed showing of good cause, a defendant in a capital case may be granted one thirty day extension of time in which to file the petition.

G. The time limits are jurisdictional, and an untimely filed notice or petition shall be dismissed with prejudice.

H. If the record of the trial proceeding has not been transcribed, the defendant may request on a form provided by the clerk of the superior court that the record be prepared. The court shall order that those portions of the record be prepared that it deems necessary to resolve the issues to be raised in the petition. The preparation of the record is a county expense if the defendant is indigent. The time for filing the petition is tolled from the time a request for the record is made until the record is prepared or the request is denied.

I. The proceeding shall be assigned to the sentencing judge if it is possible. If it appears that the sentencing judge's testimony is relevant, the sentencing judge shall transfer the case to another judge.

J. If the defendant has received a sentence of death and the supreme court has fixed the time for execution of the sentence, a stay of execution shall not be granted on the filing of a second or subsequent petition except on separate application for a stay to the supreme court setting forth with particularity those issues raised which that are not precluded under section 13‑4232. The warrant shall not be stayed to allow for the filing of a petition. END_STATUTE

Sec. 6. Title 13, chapter 38, article 29, Arizona Revised Statutes, is amended by adding section 13-4241, to read:

START_STATUTE13-4241. Postconviction relief; discovery; disclosure

A. In a postconviction relief proceeding, discovery is limited to evidence that is reasonably calculated to support one or more of the grounds listed in section 13-4231 and rule 32.1, Arizona rules of criminal procedure. If a person is precluded from relief pursuant to section 13-4232 or rule 32.2, Arizona rules of criminal procedure, discovery shall not be permitted. A victim who files a notice of appearance pursuant to section 13-4234.01 shall be provided notice of all discovery requests. A party shall receive permission from the trial court before deposing or interviewing any trial witness or juror. The trial court shall grant permission for the deposition or interview on a showing that the deposition or interview is reasonably likely to lead to evidence that is reasonably calculated to support one or more of the grounds listed in section 13-4231 and rule 32.1, Arizona rules of criminal procedure.

B. Within ninety days after the filing of a notice of postconviction relief pursuant to section 13-4234, subsection C, the defendant shall provide to the prosecutor all of the following:

1. The name and address of any person whom the defendant intends to call as a witness in any postconviction relief proceeding and the person's relevant written or recorded statement.

2. The name and address of any expert who personally examined the defendant subsequent to trial and imposition of sentence and the results of any physical or mental examinations, scientific tests, experiments or other comparisons that have been completed.

3. A list of all papers, documents, photographs or tangible objects that the defendant intends to use at any postconviction proceeding or that were obtained from or purportedly belong to the defendant.

C. Within sixty days after the filing of disclosure by the defendant, the prosecutor shall provide to the defendant all of the following:

1. The name and address of any person whom the prosecutor intends to call as a witness at any postconviction relief proceeding and the person's written or recorded statement.

3. A list of all papers, documents, photographs or tangible objects that the prosecutor intends to use at any postconviction proceeding or that were obtained from or purportedly belong to the defendant, including any electronic surveillance of any conversations to which the defendant was a party.

D. The duties prescribed in this section are continuing duties. Each party shall make additional disclosure when new or different information subject to disclosure is discovered.

E. The disclosures required by this section shall be completed at least seven days before any hearing. On the motion of a party seeking to use material and information that was not disclosed at least seven days before trial, the court shall grant a reasonable extension of time in which to complete the disclosure and grant leave to use the material or information if the material or information could not have been discovered or disclosed earlier even with due diligence and the material or information was disclosed immediately on its discovery. If the material or information could have been discovered or disclosed with due diligence, the court may either deny leave or grant a reasonable extension of time in which to complete the disclosure and leave to use the material or information, and if granted the court may impose any sanction other than preclusion or dismissal listed in rule 15.7, Arizona rules of criminal procedure.

F. Either party may request one thirty-day extension of time in which to comply with the disclosure requirements under this section. Any additional thirty-day extensions may be granted only if the prosecutor and the defendant agree to the additional extension and there is a showing of extraordinary circumstances.

G. A second or successive petition for postconviction relief may be filed only on permission of the court of appeals. The court of appeals may grant permission only if the defendant makes a threshold showing that the successive petition is meritorious as provided in rule 32.1(e) or (g), Arizona rules of criminal procedure, and is not subject to preclusion pursuant to section 13-4232 and rule 32.2, Arizona rules of criminal procedure.

H. If a defendant is sentenced to death, in conjunction with the filing of an automatic notice of appeal as specified by rules 26.15 and 31.2, Arizona rules of criminal procedure, the clerk of the superior court shall order that an exact copy of the defense counsels' trial file be sealed and transferred to the clerk of the supreme court for storage until the clerk of the supreme court files a notice of postconviction relief pursuant to section 13-4234, subsection D. The file shall be made available for discovery to both the defendant and the state in any subsequent postconviction relief proceeding. END_STATUTE

Sec. 7. Section 13-4401, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4401. Definitions

In this chapter, unless the context otherwise requires:

1. "Accused" means a person who has been arrested for committing a criminal offense and who is held for an initial appearance or other proceeding before trial.

2. "Appellate proceeding" means any contested matter before the state court of appeals, the state supreme court, a federal court of appeals or the United States supreme court.

3. "Arrest" means the actual custodial restraint of a person or the person's submission to custody.

4. "Court" means all state, county and municipal courts in this state.

5. "Crime victim advocate" means a person who is employed or authorized by a public entity or a private entity that receives public funding primarily to provide counseling, treatment or other supportive assistance to crime victims.

6. "Criminal offense" means conduct that gives a peace officer or prosecutor probable cause to believe that one of the following has occurred:

(a) A felony.

(b) A misdemeanor involving physical injury, the threat of physical injury or a sexual offense.

7. "Criminal proceeding" means any hearing, argument or other matter that is scheduled by and held before a trial court but does not include any deposition, lineup, grand jury proceeding or other matter that is not held in the presence of the court.

8. "Custodial agency" means any law enforcement officer or agency, a sheriff or municipal jailer, the state department of corrections or a secure mental health facility that has custody of a person who is arrested or in custody for a criminal offense.

9. "Defendant" means a person or entity that is formally charged by complaint, indictment or information of committing a criminal offense.

10. "Final disposition" means the ultimate termination of the criminal prosecution of a defendant by a trial court, including dismissal, acquittal or imposition of a sentence.

11. "Immediate family" means a victim's spouse, parent, child, sibling, grandparent or lawful guardian.

12. "Lawful representative" means a person who is designated by the victim or appointed by the court and who acts in the best interests of the victim.

13. "Post‑arrest release" means the discharge of the accused from confinement on recognizance, bond or other condition.

14. "Post‑conviction release" means parole, work furlough, community supervision, probation if the court waived community supervision pursuant to section 13‑603, home arrest or any other permanent, conditional or temporary discharge from confinement in the custody of the state department of corrections or a sheriff or from confinement in a municipal jail or a secure mental health facility.

15. "Post‑conviction relief proceeding" means a contested argument or evidentiary hearing that is held in open court and that involves a request for relief from a conviction or sentence.

16. "Prisoner" means a person who has been convicted of a criminal offense against a victim and who has been sentenced to the custody of the sheriff, the state department of corrections, a municipal jail or a secure mental health facility.

17. "Release" means no longer in the custody of a custodial agency and includes transfer from one custodial agency to another custodial agency.

18. "Rights" means any right that is granted to the victim by the laws of this state.

19. "Victim" means a person against whom the criminal offense has been committed, including a minor, or if the person is killed or incapacitated, the person's spouse, parent, child, grandparent or sibling, any other person related to the person by consanguinity or affinity to the second degree or any other lawful representative of the person, except if the person or the person's spouse, parent, child, grandparent, sibling, other person related to the person by consanguinity or affinity to the second degree or other lawful representative is in custody for an offense or is the accused. END_STATUTE

Sec. 8. Section 13-4409, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4409. Notice of criminal proceedings

A. Except as provided in subsection B, the court shall provide notice of criminal proceedings, for criminal offenses filed by information, complaint or indictment, except initial appearances and arraignments, to the prosecutor's office at least five days before a scheduled proceeding to allow the prosecutor's office to provide notice to the victim.

B. If the court finds that it is not reasonable to provide the five days' notice to the prosecutor's office under subsection A, the court shall state in the record why it was not reasonable to provide five days' notice.

C. On receiving the notice from the court, the prosecutor's office shall, on request, give notice to the victim in a timely manner of scheduled proceedings and any changes in that schedule, including any continuances. END_STATUTE

Sec. 9. Section 13-4411, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4411. Notice of post‑conviction review and appellate proceedings

A. Within fifteen days after sentencing the prosecutor's office shall, on request, notify the victim of the sentence imposed on the defendant.

B. The prosecutor's office shall provide the victim with a form that allows the victim to request post‑conviction notice of all post‑conviction review and appellate proceedings, all post‑conviction release proceedings, all probation modification proceedings that impact the victim, all probation revocation or termination proceedings, any decisions that arise out of these proceedings, all releases and all escapes.

C. The prosecutor's office shall advise the victim on how the completed request form may be filed with the appropriate agencies and departments.

D. On request of the victim, the prosecutor's office that is responsible for handling any post‑conviction or appellate proceedings shall notify the victim of the proceedings and any decisions that arise out of the proceedings.

E. A victim who requests notice of appellate proceedings shall receive notice from the court of any decision by the court within a reasonable time before the decision is released to the public. END_STATUTE

Sec. 10. Section 13-4430, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4430. Consultation between crime victim advocate and victim; privileged information; exception

A. A crime victim advocate shall not disclose as a witness or otherwise any communication except compensation or restitution information between himself and the victim unless the victim consents in writing to the disclosure.

B. Unless the victim consents in writing to the disclosure, a crime victim advocate shall not disclose records, notes, documents, correspondence, reports or memoranda, except compensation or restitution information, that contain opinions, theories or other information made while advising, counseling or assisting the victim or that are based on the communication between the victim and the advocate.

C. The communication is not privileged if the crime victim advocate knows that the victim will give or has given perjured testimony or if the communication contains exculpatory material evidence.

D. A defendant may make a motion for disclosure of privileged information. If the court finds there is reasonable cause to believe the material is exculpatory, the court shall hold a hearing in camera. Material that the court finds is exculpatory shall be disclosed to the defendant.

E. If, with the consent of the victim, the crime victim advocate discloses to the prosecutor or a law enforcement agency any communication between the victim and the crime victim advocate or any records, notes, documents, correspondence, reports or memoranda, the prosecutor or law enforcement agent shall disclose such material to the defendant's attorney only if such information is otherwise discoverable.

F. Notwithstanding the provisions of subsections A and B, if a crime victim advocate is employed or authorized by a prosecutor's office, the advocate may disclose information to the prosecutor with the oral consent of the victim a crime victim advocate may disclose information to other professionals and administrative support persons that the advocate works with for the purpose of assisting the advocate in providing services to the victim. END_STATUTE

Sec. 11. Section 13-4434, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4434. Victim's right to privacy

Beginning January 1, 1992 The victim has the right at any court proceeding not to testify regarding the victim's addresses, telephone numbers, place places of employment or other locating information unless the victim consents or the court orders disclosure on finding that a compelling need for the information exists. A court proceeding on the motion shall be in camera. A victim's contact and identifying information that is obtained, compiled or reported by a law enforcement agency shall not be included in publicly accessible records pertaining to the criminal case involving the victim. END_STATUTE

Sec. 12. Section 13-4435, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4435. Speedy trial; continuance; notice

A. In any criminal proceeding, the court, prosecutor and law enforcement officials shall take appropriate action to ensure a speedy trial for the victim.

B. The court may grant a continuance on the motion of a party. The motion shall be in writing and shall state with specificity any reason justifying the continuance. A victim shall receive notice of the motion for continuance within a reasonable time.

C. The court shall grant a continuance only if extraordinary circumstances exist and the delay is indispensable to the interests of justice. A continuance may be granted only for the time necessary to serve the interests of justice.

B. D. In any criminal proceeding in which a continuance is requested Before ruling on a motion for a continuance, the court shall consider the victim's views and the victim's right rights of the defendant and the victim to a speedy trial. If a continuance is granted, the court shall state on the record the specific reason for the continuance and shall make the record available to the victim.

E. No other continuances may be granted except pursuant to rules 8.1(e), 8.2(e) and 8.4(d), Arizona rules of criminal procedure. END_STATUTE

Sec. 13. Title 13, chapter 40, Arizona Revised Statutes, is amended by adding sections 13-4440, 13-4441 and 13-4442, to read:

START_STATUTE13-4440. Speedy trial requirement; capital cases

A. Except as otherwise provided by this section, every person against whom a notice of intent to seek the death penalty has been filed shall be tried by the court having jurisdiction of the offense within eighteen months after arraignment. All discovery and disclosure shall take place before the trial.

B. If a party seeks a continuance that would extend the trial date past the time limit provided for in subsection a, the party promptly shall file a written application with the supreme court requesting a continuance of the trial date. On filing of an application to continue, a simultaneous notice of the application to extend the presumptive trial date shall be provided to the superior court, the opposing party and any victim who has entered a notice of appearance. The opposing party and any victim who has entered a notice of appearance shall have five days from the filing of the application to file any response objecting to the application. A reply, if any, shall be filed within three days of the filing of any response.

C. The supreme court may grant an application to extend the presumptive trial date only if extraordinary circumstances exist and the delay is indispensable to the interests of justice. Within five days of the filling of a reply or the expiration of the time to file a reply, the chief justice shall issue a written ruling on the application. The ruling shall contain a consideration of the rights of any victim and the defendant to a speedy disposition of the case and shall state the specific reason why the delay is indispensable to the interests of justice. The presumptive trial date may be extended for a maximum of thirty days and no further extensions are permitted. END_STATUTE

START_STATUTE13-4441. Speedy trial requirement; noncapital cases; case transfer limitations; definition

A. Before a case may be transferred to another judge pursuant to a case transfer system, the presiding judge of the superior court shall assign the case to be tried on the date set for trial as follows:

1. To a judge in the criminal division of the superior court. If a judge from the criminal division is unable to try the case or there is not a separate criminal division, the presiding judge shall assign the case pursuant to paragraph 2.

2. To a qualified commissioner. If a qualified commissioner is unable to try the case, the presiding judge shall assign the case pursuant to paragraph 3.

3. To a qualified judge pro tempore. If a qualified judge pro tempore is unable to try the case, the presiding judge shall assign the case pursuant to paragraph 4.

4. To any other judge in the superior court. If another judge in the superior court is unable to try the case, the presiding judge may put the case into the case transfer system.

B. A judge of the superior court, qualified commissioner or qualified judge pro tempore is deemed unable to try a case pursuant to this section if the presiding judge finds that the assignment would cause an undue hardship to any party with a matter pending before the judge, commissioner or judge pro tempore. The presiding judge shall state the reasons that a judge is unable to try the case in a minute entry.

C. This section does not affect the ability of a person to continue a case as provided by law and court rules.

D. For the purposes of this section, "case transfer system" means a system in which a case that was originally assigned to a superior court judge who is unavailable to try the case on the date set for trial is reassigned to another judge, commissioner or judge pro tempore, as available. END_STATUTE

START_STATUTE13-4442. Victim access; defendant's medical records

The victim shall have access to medical records that the defendant makes available to any person for the purpose of any criminal proceeding if the defendant's mental health is put at issue as grounds for dismissal of charges, with or without prejudice, as grounds for a jury finding of guilty except insane under section 13-502 or as mitigation. END_STATUTE

Sec. 14. Section 39-127, Arizona Revised Statutes, is amended to read:

START_STATUTE39-127. Free copies of police reports and transcripts for crime victims; definitions

A. A victim of a criminal offense that is a part I crime under the statewide uniform crime reporting program or an immediate family member of the victim if the victim is killed or incapacitated has the right to receive one copy of the police report from the investigating law enforcement agency at no charge and one copy of the transcript of any proceeding in the case arising out of the offense committed against the victim at no charge.

B. For the purposes of this section, "criminal offense", "immediate family" and "victim" have the same meanings prescribed in section 13-4401. END_STATUTE

Sec. 15. Repeal

Laws 2005, chapter 260, section 15 is repealed.

Sec. 16. Study committee on victims' recovered property

A. A study committee on victims' recovered property is established consisting of the following members who are appointed by the president of the senate:

1. Two members who represent the majority party.

2. One member who represents the minority party.

B. The committee shall meet a minimum of three times at a time and place set by the chairperson.

C. The committee shall:

1. Review the practices regarding a victim's property that is recovered by a law enforcement agency.

2. Review towing and storage fees relating to stolen automobiles that are recovered.

3. Review the impact of any fees or recovery procedures on crime victims.

4. On or before December 15, 2007, make recommendations concerning laws, rules or procedures that are necessary to improve the return of recovered property to a victim.

Sec. 17. Delayed repeal

Section 16 of this act, relating to the study committee on victims' recovered property, is repealed from and after September 30, 2008.

Sec. 18. Purpose

A. The people of the state of Arizona overwhelmingly passed the Arizona victims' bill of rights in 1990.

B. Before passage of the victims' bill of rights, victims had no assertable right to a speedy and prompt resolution or to a prompt and final conclusion of a case after the conviction and sentence.

C. Among the rights guaranteed to crime victims by the Arizona victims' bill of rights are:

1. The right to be treated with fairness, respect and dignity, and to be free from intimidation, harassment or abuse, throughout the criminal justice process.

2. To receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury.

3. To be heard at any proceeding when any postconviction release from confinement is being considered.

4. The right to a speedy trial or disposition and prompt and final conclusion of the case after the conviction and sentence.

5. To have all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings protect victims' rights and to have these rules be subject to amendment or repeal by the legislature to ensure the protection of these rights.

D. The victims' bill of rights gave the legislature the power to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to crime victims by the victims' bill of rights.

E. The legislature finds that the rights guaranteed to crime victims by the victims' bill of rights are being violated by the excessive amount of time it takes for criminal defendants to be brought to trial and for all postconviction matters pending in state court to be completed.

F. The purpose of the legislature in passing this bill is to protect and preserve the rights guaranteed to crime victims by the victims' bill of rights by ensuring that victims are paid restitution, are given due notice throughout criminal cases and have their privacy protected, that capital defendants are brought to trial in a reasonable time, and that all postconviction matters pending in state court are initiated and completed within a reasonable amount of time.