426 P.2d 633 (Ariz. 1967), 1591, State v. Burrell

Docket Nº:1591.
Citation:426 P.2d 633, 102 Ariz. 136
Opinion Judge:[9] Bernstein
Party Name:The STATE of Arizona, Appellee, v. John D. BURRELL and Bobby Favors, Appellants.
Attorney:[6] Darrell F. Smith, Atty. Gen., Philip W. Marquardt, Asst. Atty. Gen., for appellee. [7] Leibsohn, Goldstein & Weeks, Phoenix, for appellants.
Case Date:April 12, 1967
Court:Supreme Court of Arizona
 
FREE EXCERPT

Page 633

426 P.2d 633 (Ariz. 1967)

102 Ariz. 136

The STATE of Arizona, Appellee,

v.

John D. BURRELL and Bobby Favors, Appellants.

No. 1591.

Supreme Court of Arizona.

April 12, 1967

In Banc.

Rehearing Denied May 16, 1967.

Darrell F. Smith, Atty. Gen., Philip W. Marquardt, Asst. Atty. Gen., for appellee.

Leibsohn, Goldstein & Weeks, Phoenix, for appellants.

BERNSTEIN, Chief Justice.

On June 11, 1963, the appellants John D. Burrell and Bobby Favors escaped from the Arizona State Prison at Florence, Arizona. On June 13th the appellants were spotted by police and given chase. During a high speed pursuit the police officers were fired upon by the appellants. When finally cornered they surrendered to the police in Glendale, Arizona, and were taken to the Maricopa County Jail as escapees.

A complaint was filed on June 14, 1963, before the Justice of the Peace of West Phoenix Precinct, charging both appellants with three counts of assault with intent to commit murder. The record shows arrest warrants were issued the same day and placed in the hands of the Sheriff of Maricopa County for serving. Shortly thereafter, without the arrest warrants having been served, the appellants were returned to the Arizona State Prison. Following their return to prison they were timely charged, tried and convicted in Pinal County Superior Court for the crime of escape.

Appellant Burrell filed a motion for preliminary examination in West Phoenix Justice[102 Ariz. 137]

Page 634

Court on September 15, 1964 which was granted. the warrants of arrest (issued June 14, 1963) were served upon both defendants October 1, 1964. Hearing was held five days later. Informations in three counts for Assault with Intent to Commit Murder were filed November 4, 1964; following arraignment appellants, appearing with counsel pled not guilty. Prior to commencement of trial, appellants moved to dismiss the informations for lack of prosecution, which motion was denied by the trial court. Both appellants were tried and convicted on all three counts and from such convictions they prosecute this appeal.

Appellants first contend that the 'sixteen month delay without good cause shown between The time of arrest in June 1963, and the time of first preliminary hearing in October 1964, constitutes a denial of accuseds' constitutional and statutory right to a speedy trial.' (Emphasis added).

When apprehended the appellants were both taken into custody as escaped convicts and returned to the state prison at Florence, where they belonged. The record shows that formal arrest on the charges and convictions from which this appeal arises were not made until October 1, 1964, and preliminary hearing, arraignment and trial timely followed.

The rule is firmly established that the protection afforded by Art. 2, § 24 of the Arizona Constitution, A.R.S. and by the Sixth Amendment right under the United States Constitution to a speedy trial, has no application until after a prosecution is commenced or an accused is held to answer, State v. Maldonado, 92 Ariz. 70, 373 P.2d 583; Palmer v. State, 99 Ariz. 93, 407 P.2d 64; State v. Pruitt, 101 Ariz. 65, 415 P.2d 888; Foley v. United...

To continue reading

FREE SIGN UP