» Arizona Cases » Lenity?


Imagine that you are appearing in front of an Arizona Superior Court judge for your sentencing and are scared to death. Your trial had all sorts of obvious errors, but you were convicted of a felony DUI charge anyway. You are being sent to prison, and you want to appeal. The judge tells you that your notice of appeal must be filed “within 20 days after the entry of judgment and sentence.”

If you are like the hundreds or maybe even thousands of people I have represented at sentencing hearings in cases of all sorts, you would probably just be doing everything you could to avoid fainting. Your life is ruined. You probably failed to hear a single thing the judge said.

Your reasonable lawyer might have thought the word “entry” in what the judge said at sentencing meant the filing of the minute entry because that is the only thing that is actually an entry by name. Your lawyer might have thought the rule would have said “within 20 days after sentencing” if it intended for sentencing to start the 20-day period. Or maybe your lawyer thought it would have said “within 20 days after pronouncement of judgment and sentence” if it wanted pronouncement and not the entry doing the same thing to count as “the entry of judgment and sentence.”

Here is what Arizona’s Supreme Court would have said about your reasonable lawyer’s interpretation of the rule in question:

“Rule 31.3 yields two reasonable interpretations.”

In State v. Whitman, they agreed your lawyer’s interpretation was reasonable. Unfortunately, they also said that you do not get to appeal because, although his interpretation was reasonable, the reasonable interpretation they prefer was the other one.

There used to be something called “the rule of lenity.” Reading Whitman, I am not so sure it exists in Arizona anymore. The idea is that ambiguity should be resolved against the drafter. There is also nulla poena sine lege, the idea that one should not be punished for doing something that is not prohibited by law. If courts are allowed to read statutes too broadly, they may be doing something the law does not actually allow them to do. They may be preventing something the law actually allows. Without such a rule, courts can make their own laws, like shortening a deadline by days even though the law’s unclear intention could just as easily have meant the opposite.

Sadly, the Supreme Court of Arizona is fine with that, and some poor guy is doing some prison time without an appeal because his reasonable lawyer used the reasonable interpretation our state’s highest court did not prefer. So much for the rule of lenity. It was a noble idea while it lasted, at least.

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5 Responses to "Lenity?"

  1. Daniel says:

    Hi Matt, another problem is that the defendant will likely be convicted if he is actually guilty under the appellate court’s preferred interpretation, but may have been found innocent or even the case would have been dismissed had the defendant’s interpretation prevailed.

    In effect, it is double jeopardy because the defendant will be retried for the same crime for which he may have been acquitted if the defendant’s reasonable interpretation had prevailed in the trial court.

  2. Joe says:

    I am skimmed through the Appellant’s Reply brief and Appelle’s Answering brief. Unfortunately, I don’t have access to the Opening Brief. The rule of Lenity doesn’t seem to be mentioned in either brief. Maybe it was discussed thoroughly in the Opening brief. Do you know if it was briefed?

    1. Matt Brown says:

      I honestly don’t know. It seems so obviously relevant to the case that I’d be surprised if it wasn’t at some point.

  3. Andrew B says:


    In all fairness, Whitman isn’t out of luck. The Court basically says in footnote 2 that Whitman gets his appeal anyway.

    1. Matt Brown says:

      He does, but through a different and more complicated vehicle that begins with the trial court rather than the appellate court. It adds more steps, which to me seems like a problem considering that it’s a 2011 case and he may still be in custody.

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