Brooks v. State, Criminal 862

• Court: Supreme Court of Arizona
• Writing for the Court: McALISTER, C.J.
• Citation: 78 P.2d 498,51 Ariz. 544
• Parties: JAMES L. BROOKS, Appellant, v. STATE OF ARIZONA, Respondent
• Docket Number: Criminal 862
• Decision Date: 18 April 1938

78 P.2d 498

51 Ariz. 544

JAMES L. BROOKS, Appellant,
v.
STATE OF ARIZONA, Respondent

Criminal No. 862

Supreme Court of Arizona

April 18, 1938

APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Appeal dismissed.

Mr. John J. McCullough, for Appellant.

Mr. Joe Conway, Attorney General, and Mr. W. E. Polley and Mr. J. M. Johnson, his Assistants, for Respondent.

OPINION [78 P.2d 499]

[51 Ariz. 546] McALISTER, C.J.

On November 14, 1935, one James L. Brooks was convicted of the crime of grand larceny and on November 22d thereafter, following the denial of his motion for a new trial, the court, acting upon the recommendation of the jury that sentence be suspended, postponed the imposition thereof for a period of six years, and at the same time admonished the defendant that

"if at any time within the said six years you commit any crime you will be arrested and sentenced to the state prison for a term of not less than four nor more than six years from date of sentence." His bond was then exonerated.

Nothing further was done in the case for nearly two years, or until August 27, 1937, when the defendant was arraigned on an information charging him with the crime of purchasing junk from a boy thirteen years of age, to which he entered a plea of not guilty. The hearing on that charge was then set for three days later, the defendant's bond fixed at $500 cash and the order of November 22, 1935, postponing the imposition of sentence, revoked. At the conclusion of the hearing on August 30th, at which the testimony of several witnesses was taken, the court decided that the defendant was guilty of the charge of purchasing junk from a minor and that in consequence had violated the terms and conditions of his probation so it thereupon sentenced him to imprisonment in the state prison for a term of not less than four nor more than six years from that day, August 30, 1937, for the crime of grand larceny for which he had been convicted in November, 1935.

[51 Ariz. 547] On October 14, 1937, the defendant gave notice of appeal from the order overruling his motion for a new trial on November 22, 1935, the day it was filed, and from the final judgment of conviction and sentence rendered on August 30, 1937. Shortly after the filing of his brief on January 10, 1938, which was devoted wholly to the errors alleged to have been committed in the trial of the case in November, 1935, the respondent moved for a dismissal of the appeal upon the ground, first, that it had not been perfected within the time prescribed by statute and, second, that he was estopped from prosecuting his appeal because he had accepted the benefits of and acquiesced in all the proceedings incident to the suspension of his sentence on November 22, 1935.

No reply to the motion to dismiss was made by appellant but the court declined to grant it at that time, though it was good in so far as it was based on the appeal from the order denying his motion for a new trial, because that motion was overruled immediately after the trial in November, 1935, and no appeal therefrom was even attempted until October 14, 1937. Under section 5134, Revised Code of 1928, a defendant may appeal from a final judgment of conviction, from an order denying a motion for a new trial or from an order made after judgment affecting his substantial rights, and when the appeal is to the Supreme Court the notice thereof must, under section 5138, Revised Code of 1928, be given within sixty days after the rendition of the judgment or the making of the order appealed from. It is clear, therefore, that a notice of appeal from an order denying a motion for a new trial filed nearly two years after the latter was denied was too late and without any effect whatever in perfecting the appeal, but it would seem to be equally clear that the notice of appeal from the final judgment or sentence was within the time set by statute, [51 Ariz. 548] because, even though the information charging grand larceny was tried in November, 1935, the final judgment or...