State v. Garcia

OPINION

PAUL G. ULRICH, Judge Pro Tem.

The central question presented for our determination is whether our supreme court’s decision in State v. Hunter, 142 Ariz. 88, 688 P.2d 980 (1984), holding instruction of a jury pursuant to Recommended Arizona Jury Instruction 4.01 is fundamental error, is to be given fully retroactive effect. We hold that full retroactivity is required, and accordingly reverse the trial court’s dismissal of the petition for post-conviction relief here involved and remand for a new trial.

FACTS

Petitioner was charged by information filed August 31, 1981 with two counts of…