THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.34

(Not for Publication — Rule 111, Rules of the Arizona Supreme Court)

MEMORANDUM DECISION

WINTHROP, Chief Judge.

¶1 Daniel Rivera Fierro appeals the trial court's March 28, 2012 sentencing minute entry suspending his sentencing, placing him on probation, and ordering that he submit to deoxyribonucleic acid ("DNA") testing for law enforcement identification purposes and pay the applicable fee for the cost of that testing in accordance with Arizona Revised Statutes ("A.R.S.") section 13-610 (West 2012).1 Fierro argues that the court erred because he was convicted of misdemeanor offenses, and thus DNA testing was not a penalty the court could legally impose under A.R.S. § 13-610. The State confesses error, and we agree.

¶2 After a one-day bench trial, the trial court found Fierro guilty of possession or use of marijuana and possession of drug paraphernalia, each a class one misdemeanor.2 The court suspended sentencing, placed Fierro on concurrent one-year terms of unsupervised probation, and further ordered that Fierro submit to and pay for DNA testing.

¶3 Fierro filed a timely delayed notice of appeal from the trial court's March 28, 2012 sentencing minute entry. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21, 13-4031, and 13-4033(A).

¶4 Fierro failed to object below to the order to submit to and pay for DNA testing; consequently, we review for fundamental, prejudicial error. See State v. Payne, 223 Ariz. 555, 560, ¶ 13, 225 P.3d 1131, 1136 (App. 2009). If the order was unauthorized by law, it amounts to an illegal sentence and the court fundamentally erred in imposing it. See id. at 560-61, ¶ 14, 225 P.3d at 1136-37.

¶5 Section 13-610 provides for mandatory DNA testing for individuals who meet at least one requirement under A.R.S. § 13-610(O). Subsection (O) applies only to persons who are:

¶6 In this case, Fierro does not meet any of the specified requirements. Fierro was convicted of two misdemeanor offenses that are not enumerated within § 13-610(O). In addition, Fierro was not adjudicated delinquent. Because Fierro does not satisfy any of the requirements of § 13-610(O), he should not have been subject to an order of DNA testing. Consequently, the trial court erred in ordering Fierro to submit to and pay for DNA testing, and that portion of the court's March 28, 2012 sentencing minute entry is illegal.

¶7 Accordingly, we vacate the portion of the court's minute entry ordering Fierro to submit to and pay for DNA testing. We remand this matter to the trial court and direct the court to order that any fees Fierro paid be reimbursed and Fierro's DNA profile resulting from his March 28, 2012 convictions be expunged from the Arizona DNA identification system, unless the court determines that Fierro has been convicted of another offense that would require him to submit to DNA testing pursuant to A.R.S. § 13-610. See A.R.S. §§ 13-610(J); -4036; Payne, 223 Ariz. at 569, ¶¶ 49-50, 225 P.3d at 1145; State v. Soria, 217 Ariz. 101, 103, ¶¶ 7-8, 170 P.3d 710, 712 (App. 2007). We affirm the court's sentencing minute entry in all other respects.

ICHAEL J. BROWN, Judge, and MARGARET H. DOWNIE, Judge, concurring.