Green v. Superior Court In and For Cochise County, 15979-SA

• Decision Date: 26 May 1982
• Docket Number: No. 15979-SA,15979-SA
• Citation: 647 P.2d 166,132 Ariz. 468
• Parties: , 28 A.L.R.4th 1258 David Franklin GREEN, Petitioner, v. The SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF COCHISE, and The Honorable Lloyd C. Helm, Judge of the Superior Court, Division II, Respondents, and The STATE of Arizona, Real Party in Interest.
• Court: Arizona Supreme Court

Page 166

647 P.2d 166

132 Ariz. 468, 28 A.L.R.4th 1258

David Franklin GREEN, Petitioner, v. The SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF COCHISE, and The Honorable Lloyd C. Helm, Judge of the Superior Court, Division II, Respondents, and The STATE of Arizona, Real Party in Interest.

No. 15979-SA.

Supreme Court of Arizona, In Banc.

May 26, 1982.

William J. Redondo and Charles L. Weninger, Tucson, for petitioner.

Beverly A. Jenney, Cochise County Atty. by Patrick M. Elliston, Chief Deputy Atty., for respondents and real party in interest.

FELDMAN, Justice.

Petitioner brought this Special Action requesting this court to vacate an order made by the trial court on April 6, 1982. The effect of that order was to modify the terms of petitioner's probation to require him to spend an additional 175 days in the Cochise County Jail. We have jurisdiction pursuant to Rules 4 and 7 of the Rules Of Procedure for Special Action, 17A A.R.S. We accepted jurisdiction by order dated April 27, 1982, and now grant the relief sought by petitioner.

On December 16, 1980, the Cochise County Superior Court entered a judgment finding petitioner guilty of sexual abuse, a violation of A.R.S. § 13-1404(A). Imposition of sentence was suspended and petitioner was placed on three years' probation. The court further ordered that petitioner:

(S)erve one year of jail time, to be served in the Benson jail facility on a hardship basis beginning December 17, 1980, and he is to be permitted to be released two hours prior to beginning a (work) shift and returning two hours after completing a shift; that he be allowed to work overtime hours as allowed by his employer who shall notify the jail of the change in the time situation.

In addition to other standard conditions of probation, petitioner was allowed to travel to Tucson for therapy sessions with a counselor. Green's probation was later modified to allow him to visit the family farm and assist his ailing wife with household chores. On or about December 29, 1980, petitioner requested and was orally granted a transfer to the Willcox jail, which was closer to his work and family residence.

On December 11, 1981 (approximately five days before the expiration of the one-year jail period), Green's probation officer, Mr. Akers, visited Willcox to talk to petitioner concerning his impending release and to secure the necessary court authorization. Green was neither at the jail, nor at work, nor at the counselor's office. The unexplained absence stirred Akers' curiosity. Upon subsequent examination of the daily log sheets at the Willcox jail, Akers discovered that petitioner had been absent from the jail without express permission of the probation officer on seven other occasions and on twelve other occasions had exceeded his two-hour report time after authorized release.

On December 23, 1981, the State filed a petition to revoke Green's probation on the ground that he had "failed to comply with the terms of hardship jail sentence as required in Condition No. 1" (the authorized release and reporting time requirements). The evidentiary hearing on this petition was held on January 7, 1982. The court dismissed the petition to revoke probation and ordered, on its own motion, a modification of probation and petitioner's incarceration until further notice. The next day petitioner filed a Petition for Special Action in the Court of Appeals, Division Two (2 CA-CIV 4295). On January 20, 1982, the court of appeals declined jurisdiction because it appeared to the court that "respondent judge ... will set a prompt hearing."

Petitioner remained in jail until January 27, 1982, at which time the State filed a petition to modify his probation. This petition requested the court:

to require that (petitioner's) year in the county jail be served at a flat time rate without hardship release.... (And that petitioner) be given credit (only) for all the time actually spent in confinement as a condition of probation, which amounts to 166 days in the Willcox jail, and 19 days in the Benson jail.

The State evidently urged that because petitioner had spent time outside of the jail walls (in authorized as well as unauthorized release) during the full calendar year he had spent at the jails, he had not been actually confined for the number of 24-hour days equal to one year; thus, the State claimed, a modification of probation to require additional days of incarceration would not violate A.R.S. § 13-901(F). ¹ The court agreed and determined that petitioner owed the State 175 full days of incarceration. ² Accordingly, on April 6, 1982, the court ordered that petitioner's probation be modified to require him to spend another 175 days in jail, but without release of any kind. Petitioner then filed this Petition for Special Action pursuant to Rule 4(a), Rules of Procedure for Special Actions, 17A A.R.S.

The State claims that petitioner has a plain, speedy and adequate remedy by appeal. We disagree. No matter how much the appeal might be expedited, petitioner would have served at least a substantial part of the 175 days of jail time before disposition. ³ It was only by virtue of an interlocutory stay by this court that petitioner was released from jail pending determination of this Special Action, and it is only by virtue of the rather unique procedures provided for in our rules pertaining to special actions that matters such as this may be determined as expeditiously as is necessary here. See the notes of the State Bar Committee appended to Rules of Procedure for Special Actions, 17A A.R.S.

The State next claims that the Special Action should have been brought in the court of appeals rather than in this court. In most cases this would be correct. However, here petitioner already made one attempt to obtain relief from the court of appeals. While we might still refer the case to the court of appeals, under the unusual circumstances of this case we feel the interests of justice are better served by disposing of the matter without requiring petitioner to return to the court of appeals for a second time, with possible subsequent petition for review in this court. Direct filing in this court is exceptional, but is contemplated by Rule 4(a), id.

Turning now to the merits of this matter, we find the court below acted in excess of its legal authority. At the outset, we recognize the power of a sentencing court to modify probation for reasons that may not otherwise warrant revocation of probation. See A.R.S. § 13-901(C); Rule 27.2, Rules of Criminal Procedure, 17 A.R.S. As we have noted in the comment to Rule 27.2:

This provision is included to protect the probationer from arbitrary conditions or regulations, to provide a formal means short of violation and revocation proceedings for the probationer to have ambiguous conditions or regulations clarified, to provide added flexibility to the probation process, see ABA Standards Relating to Probation § 3.3 (Approved Draft, 1970), and, on the suggestion of probation officials, to provide a means for invoking the authority of the court when the probationer seems to be slipping toward revocation without risking that ultimate sanction.

Nevertheless, the discretionary power given the sentencing court to impose, modify, or revoke probation is limited by several statutory provisions, ⁴ as well as constitutional due process considerations. ⁵ In the instant case, the court's authority to order petitioner to serve time in the county jail as a condition of probation was expressly limited by the statutory proviso that the period petitioner would actually spend in confinement could not exceed one year. See A.R.S. § 13-901(F), note 1, supra. We disagree with the lower court's apparent determination that in computing the "period" petitioner "actually spent in confinement" the hours spent outside the jail walls in authorized release are not to be counted. The original order of probation expressly allowed petitioner to spend part of his jail time outside the prison walls in lawful, authorized activities. While petitioner was "out" on authorized release, he was in full compliance with the orders and regulations of the court, prison, and probation authorities. Therefore, time petitioner spent in the lawful pursuit of activities he was expressly authorized to conduct outside the jail (to which he was required to return at a specified time each day) was part of the "period actually spent in confinement" for purposes of A.R.S. § 13-901(F).

This interpretation of the statute is consistent with both the language used in this statute and general legislative intent expressed in analogous statutes. For instance, A.R.S. § 13-903(C) provides:

The running of the period of probation shall cease during the unauthorized absence of the defendant from the jurisdiction or...