Serving AZAG Crime Victims

VICTIM ASSISTANCE

You may be facing many problems as a result of your victimization. Victims often experience trauma resulting from a crime, as well as from their involvement with the criminal justice process. They often feel isolated and confused, and do not know where to turn for practical advice or support. Further, crime victims often need immediate help: food, clothing, or temporary housing.

AGENCIES AND SERVICES

Agencies such as victim assistance programs, sexual assault centers, child abuse treatment programs and domestic violence shelters are established throughout the state to help crime victims regain control over their lives. Supported by government and private funds, these programs provide emergency and long-term support to victims and their families. If your community has a sexual assault center or domestic violence shelter, services which may be available include: emergency safe homes or shelters; 24-hour crisis telephone lines; follow-up crisis and long-term counseling; advocating for your needs and rights; accompanying you to medical examinations; transportation; and child care.

Every community provides different kinds of crime victim services. The law enforcement agency that has responsibility for investigating the criminal offense against you (typically a police department or sheriff's office) is required by law to inform you of the availability, if any, of crisis intervention services and emergency and medical services, and provide you with the telephone numbers of private and public victim assistance programs, including programs that provide counseling, treatment, and other needed services. In cases of domestic violence, the law also requires that the investigating agency inform victims of the procedures and resources available for their lawful protection, including, how to obtain an Order of Protection from a court.

Local victim assistance programs are established in each of Arizona's fifteen counties. They can inform you of other specific services available in your community. (See last insert of this Guide for the phone number of the victim program nearest you.) If you need help in identifying and accessing assistance services, you may want to call your local law enforcement agency or the Attorney General’s Office of Victim Services.

Attorney General’s Office of Victim Services

The Attorney General’s Office may be asked to prosecute crimes when a County Attorney’s Office identifies a conflict that would prevent them from ethically maintaining a case. If you are a victim in such a case, the Attorney General's Office of Victim Services is established to assist you in all of the ways that a local victim program would (see Guide insert for services listing). Program staff also assist victims in criminal matters that originate with the Attorney General which include many white-collar, organized crime and fraud prosecutions. Lastly, because the Attorney General has jurisdiction in almost all criminal direct appeals to state and federal courts, the Attorney General's Office of Victim Services ensures that all victims in this stage of the criminal justice process receive their full constitutional and statutory rights, as well as continued services to meet the unique needs of victims following conviction. 

Victims of crime in Arizona are afforded a wide range of services though the Attorney General’s Office of Victim Services. If you are a victim of a crime being prosecuted by the Attorney General’s Office, available services include:

• Assessing your needs as a result of the crime;
• Assisting you in obtaining crisis intervention, counseling services, emergency shelter and follow-up counseling for your emotional, personal, financial and employment problems resulting from the crime;
• Providing information on filing Orders of Protection and Injunctions Against Harassment;
• Helping you file for compensation though your local Crime Victim Compensation Board;
• Assisting and supporting you through all justice proceedings, we can:
  • Explain the justice system to you;
  • Conduct a court visit/orientation with you prior to a scheduled proceeding;
  • Escort and support you through court appearances, depositions, or interviews;
  • Help you to get back property held for evidence;
  • Keep you updated on the case and its disposition;
  • Advocate for a court waiting area where you may be secure from the defendant, the defense witnesses and the defendant’s family and friends;
  • Assist you in completing a Victim Impact Statement for use at the time of sentencing;
  • Assist with documenting your financial losses as a result of the crime and as an aid to the prosecutor in recommending court-ordered restitution; and,
  • Obtain and provide you with a copy of the Pre-sentence Report. 
• Intervening with your employer, landlord, or creditors to minimize additional losses because of the crime’s impact on you;
• Providing you with information on filing restitution liens;
• Advocating your rights as a crime victim with other justice agencies;
• Notifying you of all post-conviction relief and direct appeal proceedings, and of the outcome of those proceedings; and,
• Intervening on your behalf with the media to assure your privacy needs and wishes are respected. 

To obtain information or inquire further about these services, please call (602) 542-4911 in Phoenix or (520) 628-6456 in Tucson. Any one of the victim advocates in these offices will be able to help you.

VICTIM ADVOCACY…You’re Not Alone

Employed or affiliated with many criminal justice and non-profit agencies, Crime Victim Advocates are trained and caring individuals whose primary purpose is to inform, support and accompany victims or their representatives through the aftermath of crime. Advocates can intervene or act as a liaison on a victim’s behalf, ensuring that all rights are afforded and that victims’ needs for help and services are met and coordinated. Advocates can also be a visible support and resource to crime victims as a case makes its way through the justice process. By making contacts on victims’ behalf, providing case status information and an orientation to the judicial system advocates can minimize the confusion, frustration or further stress that is often felt by victims as participants in the justice process.

Confidentiality

Victims may have the lawful right to have what they say to the crime victim advocate be kept private and confidential. This means that the advocate cannot divulge information obtained in their service to the victim, with some exceptions*, unless the victim consents to its release. Upon initial contact between the victim and a victim advocate, it is important that the victim asks the advocate to explain the right to privileged communication, if any, and what it means, including any exceptions. 

*By law, advocate-victim communication is not confidential if an advocate knows that a victim will give, or has given, false testimony, or if the communication contains information that would clear the accused person of blame.

Who is Protected by Victims’ Rights? (And Who Isn’t?)

The benefits and protection of victims’ rights extends to all persons against whom a criminal offense or delinquent act has been committed. By legal definition, a person is a victim if the offense or act committed against them is a felony, a misdemeanor, a petty offense, or a violation of a local criminal ordinance.

• A felony is a crime that is punishable by imprisonment in a state prison or death. Crimes that are charged as felonies can include but are not limited to: homicide, organized crime, burglary, sexual assault, and arson.
• A misdemeanor is a crime punishable by a fine or incarceration in a county jail for a maximum period of 364 days, or both. Types of misdemeanor crimes can include but are not limited to: some domestic violence charges, simple assault, some traffic offenses, and shoplifting.
• A petty offense is an offense punishable only by a fine.
• A local criminal ordinance is an offense in violation of a city, municipal or other local ordinance punishable by a fine.

A person who has been victimized, but is also in custody at the time of the victimization or is the accused, is not a victim by legal definition and is therefore not afforded victims’ rights. If the person against whom the criminal offense has been committed is killed or is incapacitated, victims’ rights are extended to that person’s spouse, parent, child, sibling, grandparent, or other lawful representative. A lawful representative is someone who is chosen or designated by the victim, or is appointed by the court in some instances, to act in the best interest of the victim. The person can receive and relay case-related information, express the victim’s needs, wishes, and opinions, and make choices on a victim’s behalf. If the victim of a criminal offense or delinquent act is a minor, the victim’s parent, child, or other immediate family member may exercise all of the victim’s rights on behalf of the minor, unless the criminal offense is alleged against that individual. In this case, the court may appoint a person to represent the minor’s rights as a crime victim. If the victim of a criminal offense is a business, corporation, partnership, association, etc. or is a neighborhood association, the law also provides that certain rights, though limited, be extended to such legal entity or neighborhood association victims

THE CRIMINAL JUSTICE SYSTEM

Your rights as a crime victim begin at the time a crime is reported and continue throughout the criminal justice process. To receive the full benefit of your rights and to participate in the criminal justice system, it is important to understand how a criminal case progresses. This simplified overview may not answer all of your questions, but hopefully will address some of your immediate concerns about what to expect.

A case progresses through the criminal justice system in many steps, or stages. The overview that follows might suggest that the administration of justice is an orderly flow of decision-making that begins with the investigation of a criminal offense and ends with a prison sentence. However, because the justice process is structured to guarantee due process of law for defendants at each of its many stages, questions of definition and interpretation can complicate criminal procedure and create frustrating delays. In any event, your opportunity to exercise your rights will be enhanced as you learn how the system works.

INTRODUCTION

Criminal justice in the United States exists to control and prevent crime. Criminal cases are those that involve the commission of acts that are prohibited by law and punishable by a jail or prison sentence, or a fine. Law enforcement agencies are charged with the prevention of crime and the apprehension of criminal offenders. Courts have the duty to assure justice and due process through determining innocence or guilt of the accused and sentencing those who are convicted. The role of correctional and probation agencies in this process involves the control, custody and supervision of persons convicted of crime.

LAW ENFORCEMENT INVESTIGATION ... THE PROCESS BEGINS

Although the first phase of the criminal justice process would seem logically to be arrest, an arrest does not always occur. More often, the process begins with a report or complaint made to a law enforcement agency that a crime has occurred, followed by the agency responding with some level of investigation. While an initial investigation is performed in many cases by a police officer responding to a scene shortly after a crime occurs, pre‑arrest investigations are also initiated when knowledge is received from informers, or through surveillance. Investigative activities include examining the crime scene, searching for physical evidence, interviewing victims and witnesses, and attempting to locate the perpetrator. If a suspect is not taken into custody immediately, an initial report may be turned over to a detective who specializes in investigating the particular type of crime that occurred. The detective's job in furthering the investigation could include contacting victims and witnesses for formal statements and photographic line-ups.

When a suspect is identified and sufficient evidence indicating a criminal offense has occurred, the case is presented to a prosecutor for review. Prosecutors are the chief legal officers within their jurisdictions. (The Attorney General is the chief legal officer for the state.) As lawyers for the government, prosecutors represent the interest of the community.

See Rights & Responsibilities Chart for a listing of your rights during this stage.

PROSECUTORIAL REVIEW AND FORMAL CHARGING

The prosecutor reviews the law enforcement or investigating agency's report and assesses whether there is sufficient evidence to support a conviction. The prosecutor may request additional investigative work. The standard for conviction in criminal matters is that a judge or unanimous jury be convinced beyond a reasonable doubt that the alleged offender is guilty of the crime(s) committed. If the prosecutor finds that the report and evidence are sufficient and there is a reasonable likelihood of conviction, they will file a criminal complaint or seek an indictment from a grand jury. The criminal complaint is a charging document presented to a court magistrate (judge), who will issue either a warrant authorizing the arrest of the suspect or a summons requiring that the suspect appear in court on a specific day for a preliminary hearing (in felony matters only).

Turn Down: A prosecutor's decision to decline case prosecution (not to file charges) is commonly referred to as a "turn down” or a “declination." Rules of ethics governing the legal profession prohibit prosecutors from filing charges in cases they do not believe meet the high standard for conviction in criminal matters. In cases where the suspect's alleged conduct could be charged as an offense under more than one law, the prosecutor has discretion to decide what charges to file, if any. Many factors are involved in deciding whether, or how, to prosecute.

See Rights & Responsibilities Chart for a listing of your rights during this stage.

UPON ARREST

An arrest is simply the action of taking a person into custody for the purpose of charging them with a crime, but an arrest is not required in all cases. A law enforcement officer makes an arrest when they have directly observed the crime committed or at some later time when an investigation suggests that the suspect probably is the offender (called probable cause). When a person is arrested, they are taken to jail and "booked." Booking is the administrative recording of an arrest, conducted at a jail, and can include fingerprinting and photographing the suspect.

When an accused person is arrested, they must be brought before a judge within 24 hours for an initial appearance, or be released. At an initial appearance, the judge gives formal notice of the charge(s) to the accused, who may now be referred to as the defendant, informs them of their legal rights, appoints legal counsel on their behalf if necessary, and sets the conditions for their release from jail (if not previously released at the booking phase). A defendant may be released on their own recognizance or by posting bail. A defendant released on their own recognizance is not required to post any money and is released on the basis of a promise to appear at future court proceedings. Bail is set by the judge according to the seriousness of the offense, prior criminal record, and the likelihood that based on community ties, the defendant will appear in court as required. If a defendant does not appear at a required proceeding, bail may be forfeited and a warrant may be issued for their arrest. Defendants released after the initial appearance are ordered to adhere to certain restrictions set by the Judge.

See Rights & Responsibilities Chart for a listing of your rights during this stage.

INITIAL COURT PROCESSING

Determining Probable Cause ... Grand Jury/Preliminary Hearing

A prosecutor may prefer, under some circumstances, to bring charges through the state or county grand jury rather than by criminal complaint. The grand jury is a panel of citizens charged with reviewing the evidence of criminal behavior and deciding if probable cause exists to believe that the suspect committed the crime. Probable cause is a set of facts, information, circumstances or conditions which would lead a reasonable person to believe that what is presented or alleged is true. If the grand jury determines there is probable cause that a crime was committed and that the suspected perpetrator committed the crime, a criminal "indictment" (charging document) is signed and an arrest warrant or summons to appear for arraignment is issued by the court.

In felony matters that begin with the prosecutor filing a complaint, a preliminary hearing is held before a Justice of the Peace to determine if there is probable cause to hold the defendant for trial. (A probable cause determination is not necessary if the offense charged is a misdemeanor). At a preliminary hearing the judge, rather than a grand jury, hears all of the evidence and testimony from the witnesses called by the prosecuting attorney and, if permitted by the Court, witnesses can be called by the attorney for the defendant. In some situations, a preliminary hearing may be scheduled but then, with agreement between the parties, be waived or canceled if the prosecutor subsequently takes the case to the Grand Jury.

Charges may be dismissed at the grand jury or preliminary hearing stage if the grand jury or Justice of the Peace determines that the evidence is insufficient to justify a trial. If probable cause is present, however, the defendant is "bound over" for trial in the Superior Court, and an arraignment date is set. This step is recorded by a charging document -- either the indictment issued as a result of the grand jury hearing or "information” filed following the preliminary hearing. The court then issues a summons for the defendant to appear at arraignment in Superior Court.

Answering the Charges ... The Arraignment

The first appearance of the defendant in Superior Court is called an arraignment. At an arraignment proceeding, the defendant is officially informed of the formal charges against them (indictment or information). The defendant may plead "guilty" or "no contest" (a plea of neither guilt nor innocence), in which case the judge will set a date to sentence the defendant. In most cases the defendant pleads "not guilty," a decision is made whether to appoint an attorney for them, and the matter is set for a pre-trial hearing or trial.

Note: Many limited jurisdiction courts (Municipal and Justice of the Peace Courts) combine the initial appearance and arraignment, resulting in one court appearance instead of two. Additionally, if the defendant was not arrested in a felony matter, there may also be a combined initial appearance and arraignment.

See Rights & Responsibilities Chart for a listing of your rights during this stage.

PREPARING AND BUILDING THE CASE . . . PRE-TRIAL ACTIONS/HEARINGS

After the arraignment but before trial, many activities occur while both the prosecuting and defense attorneys build their case for trial. These activities are guided by Arizona Rules of Criminal Procedure, which define how the pre-trial process must work. For example, each party must disclose information in its possession to the opposing party (called discovery). Each side examines the evidence, reviews police reports and other documents, and interviews witnesses. Victims do not have to consent to interviews with the defense attorney; other witnesses must. There may also be several court hearings scheduled, called Status Conferences, Case Management Conferences, Pre-Trial Conferences or Hearings. These hearings usually focus on legal matters regarding the admissibility and suppression of evidence, modifications to the defendant's pre-trial release, plea negotiations, and other matters of concern to the attorneys or court, including the scheduling and rescheduling of the trial itself. 

See Rights & Responsibilities Chart for a listing of your rights during this stage.

RESOLVING THE CHARGES

Plea Agreement

The vast majority of criminal cases making their way through the criminal justice process never go to trial. What occurs more often is a process whereby the prosecutor and the defense attorney work out a mutually satisfactory disposition of the case, subject to court approval. If the attorneys reach an agreement, there is usually some modification to the original charges; the defendant may plead guilty to a lesser charge; some charges may be dismissed; an agreement to not file additional charges may be made, and/or a particular sentence may be agreed upon (called stipulating). If both sides agree to a negotiated settlement, a change of plea hearing is scheduled. At a change of plea hearing, the defendant enters a guilty plea and signs a statement that their plea is voluntary and that they agree to waive certain rights. If the agreement is acceptable to the court, the judge then finds the defendant guilty and schedules a date for sentencing. 

Trial

If a plea agreement is not reached, a case may go to trial. A felony trial will be held before a Superior Court Judge and a panel of jurors unless the defendant waives their right to a jury trial, in which case the trial would be held before the judge alone (called a bench trial). All parties to the case, including witnesses for the prosecution and defense, are subpoenaed in advance to testify (sent a summons to appear); and, if it is to be a jury trial, juror selection (called voir dire) must take place before testimony begins. The State, represented by the prosecutor, has the burden of proving beyond a reasonable doubt that the defendant committed the crime(s) as charged.

When the court is ready for trial to begin, the prosecuting attorney gives an opening statement, an overview of the facts to be presented. The attorneys are not allowed to argue the strength of their case at this stage. The opposing (defense) attorney may present opening remarks or may reserve an opening statement until later in the trial when the defendant's side of the case is presented. The prosecutor begins the State's case by calling witnesses and asking them questions under oath (called examining). The prosecutor's evidence is aimed at proving the defendant committed the crime.

Witnesses take an oath that what they will say in court is the truth. All evidence presented in court, including testimony and physical evidence such as documents, items or articles of clothing, must comply with the Arizona Rules of Evidence. The judge decides what evidence and testimony is admissible according to the Rules. 

When the prosecution has finished questioning each witness, the defense is allowed to cross-examine the witness on any relevant matter. After cross-examination, the attorney who originally called the witness to the stand may wish to ask additional questions of the witness to clarify something touched upon in the cross-examination. This is called re-direct examination, and is followed by an opportunity for the opposing attorney to re-cross-examine. When the prosecution has called all the witnesses for its side of the case and presented all its evidence, the prosecution rests its case.

At this point, the defendant's attorney may ask the court to decide the case in the defendant's favor because the prosecutor has not presented sufficient evidence to prove the case against the defendant. This is called a request for a judgment of acquittal, directed verdict or “Rule 20” motion. If the judge agrees that the State's evidence is insufficient, the judge rules in favor of the defendant, and the case is at an end. If a judgment of acquittal is not requested, or if the request is denied, the defense then has the opportunity to present its own evidence. 

The defense may choose not to present any evidence and is not required to do so. Under our federal and state Constitutions, a criminal defendant is not required to prove their innocence; the prosecution is required to prove the defendant's guilt beyond a reasonable doubt. If the defense does present a case and call witnesses, the same rules and procedures which governed presentation of evidence by the prosecution apply to evidence presented by the defense. The only difference is that the defense calls the witnesses and questions them first. At the conclusion of the defendant's case, the prosecutor may present additional information to rebut, or contradict, evidence offered by the defense. Following this, the defense is given another opportunity to present additional evidence.

When both sides have presented all of their evidence, each is permitted to make closing arguments. Closing arguments are different from opening statements, because the attorneys can argue the strength of their cases based on the evidence presented. They provide an opportunity for the attorneys to address the jury (or the judge in a bench trial) one final time. The prosecutor speaks first, usually summarizing the evidence that has been presented and highlighting those items most beneficial to its case. The attorney for the defendant speaks next. The attorney for the defendant will usually summarize the strongest points of the defendant's case and attempt to point out flaws in the State's case. The prosecutor is then given one last opportunity to speak.

At the end of a jury trial, the judge gives instructions to the jurors concerning laws that apply in the case. Jury members are required to follow these instructions in reaching a verdict. The jury goes to a private jury room and elects a foreman to lead the deliberations. Jurors must consider all the evidence, resolve any conflicts about the facts of the case, and reach a verdict of guilt or innocence. When the jury has reached a decision, the court is called back into session. The foreman reports the verdict to the judge, and either the judge or court clerk reads the jury's verdict. The court then enters a judgment according to the verdict, and the jury is released from duty. The defendant is released if found not guilty. If the defendant is found guilty, a date is set for sentencing and if they are not already in custody, may be taken into custody at this time. If the jurors cannot reach a verdict the case ends in a "hung jury" and the prosecutor may decide to retry the defendant with a new jury.

See Rights & Responsibilities Chart for a listing of your rights during this stage.

SENTENCING

A defendant is sentenced after they are convicted. Conviction includes a judge's finding of guilt after a bench trial, a verdict of guilt after a jury trial, or a defendant's change of plea to guilty or no contest as part of a plea agreement.

The judge will order a presentence investigation by the county probation department, an arm of the Superior Court. The product of this investigation is a presentence report prepared by a probation officer. The judge receives this report prior to the hearing date and considers all the information contained in it to arrive at a sentencing decision. The report focuses on the defendant and typically includes: the circumstances of the offense, the defendant's history of criminal activity, if applicable, social and employment history, family status, economic and educational status and personal habits. The report is very important to victims, too. The report provides the victim an opportunity to express their views regarding the emotional, physical and financial effects and impact of the crime, their opinions about sentencing, and how much restitution, if any, the defendant should be ordered to pay.

In some cases, the court may schedule one or more presentence hearings to consider issues related to restitution, aggravating and mitigating circumstances or other issues of concern to the attorneys or the court. At a restitution hearing, the court considers matters relevant to compensating victims for their actual financial losses as a direct result of the crime. At an aggravation/mitigation hearing, the court considers the circumstances of the crime and of the defendant's history that could justify a lesser or greater sentence. Testimony and other evidence can be presented at any presentence hearing.

At a sentencing hearing, the judge hears arguments, and sometimes additional evidence from both the prosecution and defense, regarding the punishment the defendant should receive. Victims may make victim impact statements directly to the judge at this time. The law allows victims to submit their victim impact statement orally, in writing, or in a digital media format available to the court. The defendant, too, may make a statement to the court. In Arizona, the Legislature has established a range of sentences for various crimes and the judge must impose a sentence within that range. The judge may order the defendant to probation, to jail, to prison, or to a combination of punishments, including fines, and must order payment of any restitution that is owed to the victim(s). 

See Rights & Responsibilities Chart for a listing of your rights during this stage.

CUSTODY, SUPERVISION, AND RELEASE

What happens to a defendant, now an offender, after sentencing depends upon the sentence imposed. An offender's sentence encompasses all of the orders made by the judge at the sentencing hearing. A variety of government agencies and institutions exist to carry out sentencing orders.

Incarceration

Offenders sentenced to a period of incarceration are ordered to serve time in either a county jail or prison. Care, custody and control of the offender (inmate) lies with a county sheriff (jail), or the Arizona Department of Corrections, Rehabilitation & Reentry (prison), commonly referred to as ADCRR. The length of an inmate's incarceration depends primarily upon two factors: 1) the sentence itself, and 2) when the crime occurred and the laws that were in effect at that time. A sentence of time served means that an inmate's period of incarceration is equal to the time he has already been held in custody for the crime. Credit for time served reduces the full period of incarceration by the amount of time already served in custody for the same offense. If you have requested post-conviction notification from the ADCRR, that agency should inform you of the earliest possible release date. Many defendants are eligible for an early release.

Release

Offenders sentenced to prison for crimes committed in 1993 or earlier may at some point in their sentence become eligible for parole, a form of early release. In contrast, most defendantssentenced for crimes committed after 1993 are subject to mandatory sentencing laws. These laws require defendants to serve at least 85% of their sentence in prison, followed by a term of community supervision equal to 15% of the total prison term. Parole and community supervision are forms of supervised release determined by the Arizona Board of Executive Clemency (formerly the Arizona Board of Pardons and Paroles), in which the offender is required to report on a regular basis to a state parole officer and must abide by strict rules of conduct. Inmates may also be eligible for various types of release, such as work furlough or home arrest, determined solely by the ADCRR. The sentencing judge is not involved in release determinations for prison inmates; that is left entirely to the ADCRR pursuant to specific statutes. If you have requested post-conviction notification from the Board of Executive Clemency, that agency should notify you of scheduled release hearings. Victims have the right to address the board, in person, in writing or by telephone, about their thoughts on the crime and potential release of the defendant from custody.

Suspended Sentence/Probation

In some cases, a judge may decide to conditionally suspend a sentence of incarceration, contingent upon the offender's successful completion of a period of probation. Probation is a form of community supervision in which the offender is required to report on a regular basis to a county probation officer and abide by specified rules of conduct. If probation, which can be "standard," "intensive," or “unsupervised,” is completed successfully, the sentence of incarceration is not imposed. If the offender violates probation, it can be revoked and the sentence of incarceration ordered.

Other common sentencing orders include: community service which requires that an offender complete a designated number of hours of work in the community; payment of restitution which is an order for the offender to pay their victim(s) for any financial losses directly resulting from the crime; payment of court fines or penalties; and attendance and participation in individual or group counseling. Enforcement of court sentencing orders is typically incorporated as terms of probation and/or parole/community supervision. Certain crimes, such as domestic violence, financial fraud, sex crimes, or elder exploitation, may have specific probation conditions in addition to the standard conditions imposed by the Court.

See Rights & Responsibilities Chart for a listing of your rights during this stage.

POST-CONVICTION PROCESS

Defendants convicted of a felony criminal offense after a trial or convicted of a misdemeanor or petty offense have a statutory right to appeal.  Defendants convicted of a felony criminal offense pursuant to a plea agreement have a right to file a petition for post-conviction relief, which is discussed below. Generally speaking, a direct appeal is an action taken by a defendant that asks a higher court to review the decision of a lower court. The defendant, or the defendant's attorney, is seeking to have the conviction and/or sentence overturned or modified. Appeals from decisions of non-record courts (Justice of the Peace and some Municipal Courts) are made to the Superior Court. Appeals from decisions of the Superior Court, where all state felony convictions occur, are made to the state Court of Appeals. The Arizona Supreme Court, Arizona's highest court, may choose or decline to review a decision of the Court of Appeals when a party files a petition for review. The Supreme Court hears all direct appeals in cases in which a death sentence is imposed.

Appeals Process

When a direct appeal is filed, the trial court sends the official case records to the next higher court. The appropriate appellate court reviews matters of law in making its decision, not whether or not the defendant is guilty. No witnesses are called nor testimony taken in the appellate court. The matters of law reviewed include whether the defendant's due process rights and other applicable laws and procedures were followed during the investigation, trial, and sentencing phases of the criminal justice process. The Attorney General serves as the prosecutor for almost all felony direct appeals filed in criminal cases in Arizona. When the appropriate records and attorneys' written arguments, called briefs, have been received by the court, the case is considered to be at issue and is assigned to a panel of three appellate judges for consideration. The defendant’s brief contains legal arguments as to why the decision of the trial court should be reversed or modified. The State responds to these issues with arguments and legal authority typically supporting the trial court's decision. After they have reviewed the records, the Court of Appeals judges may hear oral arguments by the attorneys before issuing a written decision. An appellate court does not conduct a new trial on the case it hears. It reviews only the existing papers, exhibits and transcripts from the trial court. The documents are called the record on appeal, and are reviewed to determine whether the trial court made a proper decision.

In deciding a case, Court of Appeals judges have several options, which include the following and/or a combination: 1) affirm the defendant’s conviction(s) and sentence(s); 2) affirm the defendant’s conviction(s) but disagree with the sentence and therefore either modify (change) the sentence or remand (send back) the case to the trial court for re-sentencing; 3) reverse the defendant’s convictions and sentence and remand to the trial court for further action or a new trial.

Post-Conviction Relief (PCR)

As of November 1992, persons convicted by way of plea agreements are not entitled to a direct appeal as described above. However, these defendants may petition the original trial court for post-conviction relief and the original prosecuting agency usually handles such petitions. A petition for post-conviction relief is a request by the convicted defendant to overturn the conviction or sentence based on various, yet specific grounds including, constitutional rights violation(s), new evidence, or excessive punishment. The basis of such petitions usually forms on the defendant’s contention they received ineffective assistance of counsel that denied them of their rights. If the trial court denies the petition, the defendant can file a petition for review to a higher court, similar to a direct appeal, except that the higher court has discretion not to accept the appeal.

See Rights & Responsibilities Chart for a listing of your rights during this stage.

FINANCIAL HELP

RESTITUTION OVERVIEW

Restitution is not punishment, it is a court order to a convicted defendant to pay victims for the economic losses incurred as the direct result of the crime(s) committed by the defendant. Restitution is most often ordered at the time of sentencing and may include: medical expenses, funeral costs, travel to court, expenses for counseling, moving and basic living necessities, lost or damaged property, and lost wages. Criminal restitution does not cover pain and suffering or punitive damages. It is important that victims provide the prosecutor an indication of their economic loss(es) early in the prosecution of the case so that restitution can be fully considered and advocated.

Restitution is mandatory. That is, the court is required by law to order the defendant convicted of a crime to reimburse the victim(s) for the victims’ economic losses that resulted directly from the crime. The sentencing judge, while they will make the final determination based on what financial loss the victim experienced as a direct result of the crime, cannot compel the defendant to pay money they do not have. This means, for example, that if a defendant is convicted of stealing a $9,000 car, the judge must order them to pay $9,000 in restitution to the victim. Because of the defendant's ability to pay, however, the judge may also order that the defendant's method of paying the $9,000 be monthly payments of $30. A monthly court-ordered restitution payment of $30, on a full restitution order of $9,000, would require 25 years of regular payments for the economic loss to be fully recovered. Unfortunately, this means that restitution is not a reliable form of reimbursement for victim losses, even though it is court-ordered.

A defendant who is ordered to jail or prison, with rare exception, will not be required to begin making restitution payments until their release. The Court may order that restitution be paid within a certain period of time, or it may order that payments be made in specified (monthly) installments as noted in the above example. A probation officer, or other agent with responsibility for monitoring restitution payments of a defendant serving a probation sentence, is required to notify the supervising court upon finding that a defendant has become four full (monthly) payments in arrears (behind). This notification (memorandum) must include a reason for the arrearage and how long it is expected to continue and make a recommendation to the court that either no further action is needed or that a review hearing should be scheduled. A copy of the notification must be provided to the State and to any victim opted-in for post-conviction rights notification. If a victim requests post-conviction victims' rights notification, the county Probation Department will inform them of any scheduled hearings that relate to, or could impact restitution. A victim has the right to be present and to express their opinion to the court at such hearings. Additionally, the court can require the defendant to show cause as to why a default in the payment of restitution should not be considered contempt. An arrest warrant may be issued for the defendant’s appearance.

Defendants are required to make their court-ordered restitution payments to a county's Clerk of the Superior Court. The Clerk's Office is required to process restitution monies making payments (disbursements) to all victims who ordered to receive restitution. 

According to law, defendants sentenced to prison may have a portion of their prisoner’s spendable account withdrawn each month to pay court ordered restitution. This money is sent from the ADCRR to the applicable county Clerk’s Office for processing.

Restitution Lien

If the victim is entitled to restitution by court order, they have the right to file a restitution lien against any assets (personal and real property) held by the defendant. The filing of a lien gives notice to all persons dealing with the defendant or dealing with the property identified in the lien, of the victim’s interest in that property, or property later acquired in the name of the defendant. The advocates of the Office of Victim Services can provide victims with information about filing a restitution lien if that victim is a victim in a case handled by the Attorney General's office. The Attorney General’s Office will not file a restitution lien on behalf of the victim. It is a personal right, which the victim must pursue.

Criminal Restitution Orders

An offender’s restitution obligation to you does not end until paid in full, however when the court loses jurisdiction over the offender it may no longer enforce the order. When this occurs, and restitution has not been fully paid, the court must enter a Criminal Restitution Order for the unpaid balance if one was not entered at the time of sentencing. This order may be recorded and enforced as any civil judgment, never needs to be renewed and is not dischargeable through bankruptcy. Victims should contact the prosecuting attorney to request assistance in obtaining a copy of this order at the time the sentence expires although the Clerk of Court is required to send those still owed restitution a copy of the Criminal Restitution Order. 

CRIME VICTIM COMPENSATION

If you are a victim of a violent crime or a surviving dependent of a victim who has died as the result of a criminal act, you may be eligible for compensation of certain financial expenses through Arizona's Crime Victim Compensation Program. Administered in each of the state's fifteen counties, primary funding for the program comes from fines and penalty assessments imposed upon convicted felons. Compensable losses include: medical and dental expenses, mental health counseling, lost wages, and funeral costs. The program does not compensate for loss of property or property damage. To be eligible, generally, for compensation under the program: 1) your victimization must have occurred in Arizona, 2) the crime has to have been reported to a law enforcement agency within 72 hours of its occurrence, 3) the economic loss which you incurred must have been as a direct result of the crime, 4) as a direct result of the crime, also, you must have sustained physical injury or extreme mental distress, and 5) an application for compensation must be filed within two years of the time the crime occurred. To obtain an application or more information on the Crime Victim Compensation Program, contact your county Crime Victim Compensation Administrator. Visit https://www.azcjc.gov/Programs/Victim-Services/Compensation-Program for more information, to find the contact number for your county program, or to complete an application online. 

CIVIL LEGAL REMEDIES FOR CRIME VICTIMS

In addition to court-ordered restitution and county victim compensation as two means for recovering financial losses resulting from a victimization, civil litigation may be another option for victims. Victims may choose through civil action, which is entirely independent of a criminal prosecution, to bring a lawsuit against the perpetrator(s) or other responsible parties to recover damages for both economic and non-economic losses. With respect to weight of evidence in a civil matter, the victim need only prove their case by a preponderance of the evidence. This means that the victim need only prove that it is more likely than not that the defendant is liable for the claims set forth in the complaint. (By comparison, a criminal prosecutor has the burden of proving beyond a reasonable doubt that a defendant is guilty of the crimes charged.) While the victim may file a civil lawsuit, it is likely they will find it advantageous to seek the assistance of an attorney. The Attorney General's Office cannot assist victims with a civil lawsuit, nor offer advice on whether or not a victim should pursue a civil suit. The Attorney General’s Office of Victim Services can, however, offer resources that may be beneficial. You may also find resources by contacting the Arizona State Bar, your local bar association, or by visiting the OVC webpage at www.ovc.gov.

RULES OF CRIMINAL PROCEDURES

Under Arizona’s Constitution, the Supreme Court is responsible for promulgating court rules. Included in these rules are the requirements for the courts to follow when there are victims in a criminal case. Visit www.AZCourts.gov or click this link to review Arizona Rules of Criminal Procedure, Rule 39 specific to victims.