Davis v. Winkler
| Decision Date | 09 January 1990 |
| Docket Number | No. 2,CA-SA,2 |
| Citation | 164 Ariz. 342,793 P.2d 99 |
| Parties | Herbert E. DAVIS, Petitioner, v. The Honorable Richard A. WINKLER, a Judge for the Superior Court of the State of Arizona, County of Cochise, Respondent, and The STATE of Arizona, Real Party in Interest. 89-0164. |
| Court | Arizona Court of Appeals |
Petitioner Herbert E. Davis (Davis) seeks special action relief from the respondent judge's denial of his motion to reconsider the granting of the petition to reconsider conditions of release filed by real party in interest, State of Arizona, and the order that Davis be held without bail, pending trial. For the reasons stated below, we accept jurisdiction but deny relief.
On November 23, 1988, Davis was indicted by the Cochise County Grand Jury for an incident occurring in October in which he allegedly beat and sexually assaulted a woman with whom he had been living for a number of years and attempted to set fire to her house. The two apparently separated after the incident. The charges were dismissed without prejudice pursuant to a stipulation dated March 3, 1989.
On June 9, 1989, there was another incident involving Davis and the same victim. The state contends that Davis telephoned the victim and after she stated she did not wish to see him, he went to her home, cut the telephone line, and entered the home armed with a .38-caliber revolver. Although Davis and the state dispute what occurred that evening, it is clear that the victim and Davis had an altercation which resulted in the exchange of gunfire. Davis was arrested on charges of first-degree burglary, aggravated assault and attempted murder, and at his initial appearance on July 1, 1989, bond was set at $50,000. On July 7, 1989, Davis was indicted by the Cochise County Grand Jury for the June 1989 incident and an information was filed which revived the charges relating to the October 1988 incident. The state moved to consolidate the two cases. The trial court granted the motion on August 1, 1989, ordering that bond be set in the amount of $50,000 for both cases.
On September 8, 1989, the state filed a petition to reconsider conditions of release in which it requested that Davis be held without bond pending trial, contending that Davis posed a substantial danger to the victim and that no conditions of release could be imposed which would reasonably assure her safety. The state explained that it had recently become aware of and had received copies of offense reports relating to an incident in January 1979, during which Davis entered the home of his estranged wife at approximately 2:00 a.m., assaulted her and their four daughters while armed with a revolver, forced her to beg for her life and threatened to kill them all. He reportedly fired one shot which missed his wife and took her from the residence at gunpoint. He surrendered the gun to her and when he asked her to shoot him and she refused, he took an overdose of tranquilizers.
Davis was in custody when the state filed its petition, having been unable to post bond in the amount previously set. An expedited hearing was held on September 11, 1989, at which time the state submitted transcripts of the victim's statements concerning both the 1988 and 1989 incidents, police reports concerning the 1989 incident, and copies of witness statements and police reports concerning the January 1979 incident. During the hearing, Davis's attorney requested time to file responsive pleadings and leave was granted, although both sides presented legal arguments. The respondent judge took the matter under advisement. The following day Davis posted bond and left for California. It appears from the record before us that the state's petition was granted by the court after September 11, 1989, before any responsive pleadings were filed. Although the minute entry was dated September 11, it appears to have been filed on September 18, 1989. On September 28, 1989, Davis filed a motion to reconsider the order holding him without bond on the grounds that the state's petition was untimely and that the state failed to carry its burden of establishing by clear and convincing evidence that no conditions of release could be imposed which would reasonably protect public safety. Additionally, he complained that he had not been given the opportunity to file a response to the state's petition. It appears that Davis returned to Arizona that day, surrendered himself to authorities and was immediately taken into custody. Davis's motion was heard on October 13, 1989, and denied on October 18. This special action followed, accompanied by Davis's request that this court order his release pending trial.
The general question raised by this special action is whether the time constraints of A.R.S. § 13-3961(C) apply where the state seeks to have a defendant held without bond, modifying previously imposed release conditions, based on information obtained after the release conditions were initially imposed. Specifically, in the case before us, did the respondent judge abuse his discretion in granting the state's petition to reconsider release conditions and denying Davis's motion for reconsideration of that order on the grounds that (a) the state's petition was untimely; (b) the issue regarding Davis's release was res judicata; (c) the state should have been equitably estopped from seeking the change; and (d) the state failed to sustain its burden of establishing that Davis was not bailable?
The state contends that this court has no jurisdiction to hear this matter for the reason that Davis's claims should have been brought in the form of a writ of habeas corpus pursuant to A.R.S. §§ 13-4121, et seq. and, therefore, should have been submitted to the trial court, because the court of appeals does not have original jurisdiction of such proceedings. See A.R.S. §§ 13-4123, 12-120.21. We disagree.
The writ of habeas corpus has largely been replaced by the special action proceeding and Ariz.R.Crim.P. 32, 17 A.R.S. It has been traditionally used for collateral attacks on judgments of conviction and sentences in addition to providing expedited relief for illegal detention. We do not believe that because Davis may have been able to raise this issue in a habeas corpus proceeding he is precluded from raising it by way of special action. Clearly, the objective is to obtain expedited appellate review which the special action proceeding affords.
Because the issue raised here is not susceptible to review on appeal, Nataros v. Superior Court of Maricopa County, 113 Ariz. 498, 557 P.2d 1055 (1976), and because of the statewide importance of the application of A.R.S. § 13-3961 to similar factual circumstances, we accept jurisdiction. See Ariz. R.P. Spec. Action 1, 17B A.R.S.; University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983).
A.R.S. § 13-3961 provides, in pertinent part, as follows:
B. A person in custody shall not be admitted to bail if the person is charged with a felony offense and the state certifies by motion and the court finds after a hearing on the matter that there is clear and convincing evidence that the person charged poses a substantial danger to another person or the community, that no condition or combination of conditions of release may be imposed which will reasonably assure the safety of the other person or the community and that the proof is evident or the presumption great that the person committed the offense for which he is charged.
C. Upon oral motion of the state the court shall order the hearing required by subsection B at or within twenty-four hours of the initial appearance unless the person subject to detention or the state moves for a continuance.
On November 2, 1982, effective November 30, 1982, the Arizona Constitution was amended and the following paragraph, which parallels and ratifies § 13-3961(B), was added to Article 2, § 22:
All persons charged with crime shall be bailable by sufficient sureties, except for:
* * * * * *
3. Felony offenses if the person charged poses a substantial danger to any other person or the community, if no conditions of release which may be imposed will reasonably assure the safety of the other person or the community and if the proof is evident or the presumption is great as to the present charge.
Davis contends that the respondent judge abused his discretion in granting the state's petition on the ground that it was not made at or within 24 hours of his initial appearance and was therefore untimely. In support of his argument that strict adherence to the time contraints of § 13-3961(C) is required, Davis cites federal cases concerning the application of the Bail Reform Act of 1984 (the Act), 18 U.S.C. § 3142. See United States v. Al-Azzawy, 768 F.2d 1141 (9th Cir.1985); United States v. O'Shaughnessy, 764 F.2d 1035 (5th Cir.1985); United States v. Payden, 759 F.2d 202 (2d Cir.1985). The Act is similar to § 13-3961 in material respects, providing, in pertinent part, that the hearing to hold a defendant without bail "shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance." 18 U.S.C. § 3142(f).
The cases cited by Davis do indeed demand strict adherence to the requirements of the Act. In fact, in United States v. O'Shaughnessy, supra, the Fifth Circuit went so far as to say that even where the government obtains information subsequent to the initial imposition of release conditions and the request for a hearing to detain indefinitely was not made at the initial appearance,...
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