In re Application of Johnson, Civil 4057

• Decision Date: 13 February 1939
• Docket Number: Civil 4057
• Citation: 53 Ariz. 161,87 P.2d 107
• Parties: In the Matter of the Application of HUBBARD JOHNSON for a Writ of Habeas Corpus. HUBBARD JOHNSON, Appellant, v. STATE OF ARIZONA, Appellee
• Court: Arizona Supreme Court

87 P.2d 107

53 Ariz. 161

In the Matter of the Application of HUBBARD JOHNSON for a Writ of Habeas Corpus. HUBBARD JOHNSON, Appellant, v. STATE OF ARIZONA, Appellee

Civil No. 4057

Supreme Court of Arizona

February 13, 1939

APPEAL from a judgment of the Superior Court of the County of Maricopa. E. G. Frazier, Judge. Judgment affirmed.

Mr Greg Garcia and Mr. James Garcia, for Appellant.

Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, his Assistant, for Appellee.

OPINION

McALISTER, J.

Hubbard Johnson appeals from an order refusing to release him from prison after a hearing upon his application for a writ of habeas corpus. His claim is that he is restrained illegally and without authority of law.

His application was based on these facts: On October 14, 1933, he entered a plea of guilty in the superior court of Maricopa county to the crime of robbery and on the same day the imposition of sentence was suspended for a period of five years from that date upon the conditions fixed by the court which, so far as the record discloses, he complied with until some time in October, 1938. On the fourth of that month he was arrested for arson and nine days later, or on October 13th, brought before the superior court and sentenced to a term of not less than five nor more than seven years from that date in the state prison for the robbery to which he had pleaded guilty in October, 1933. Before pronouncing sentence and remanding the petitioner to the sheriff for delivery to the proper officers of the prison the court asked him if he had "anything to say or legal cause to show why the suspension of sentence should not be revoked by virtue of his failure to live up to the terms of probation" and in reply he made a statement but the nature of it is not disclosed by the record. Evidently it was not one that satisfied the court that he had been complying with the conditions of his probation, since sentence was imposed immediately thereafter.

On November 2, 1938, the petitioner was brought before the superior court of Maricopa county on a writ of habeas corpus issued out of that court on October 29th for the purpose of determining the legality of his detention in prison. The return of the prison superintendent was that he held petitioner under a commitment issued out of the superior court of Maricopa county, and after a hearing the writ was quashed and the petitioner remanded to the custody of the prison authorities, and it is this order from which he appeals.

The contention of the appellant is that the court had no jurisdiction on October 13, 1938, to pronounce sentence against him for several reasons: The first is that he was not granted a proper hearing in that he was not given an opportunity to show whether he had complied with the terms and conditions of his probation. All the record discloses relative to this is that about ten days the five-year probationary period expired he was arrested for arson and that on October 13, 1938, the last day of that period, he was sentenced for the robbery to which he pleaded guilty on October 14, 1933. According to the record he was given an opportunity to make a statement, but, since it appears from the allegations of the petition that immediately after he made it the court revoked the suspension of the imposition of the sentence for robbery and imposed one of not less than five nor more than seven years in the state prison his statement was not, in the judgment of the court, sufficient to show that he had lived up to the terms and conditions of his probation. It is unnecessary to say anything further on this point than to quote the following language in Varela v. Merrill, 51 Ariz. 64, 76, 74 P.2d 569, 574:

"We hold, therefore, following what we consider the better rule that since in Arizona the suspension of sentence is a matter, of grace, and not of right, and its granting by the trial judge is purely a matter of discretion, and since the statute nowhere provides as to the character or quantum of the evidence necessary to satisfy him that a defendant has violated the conditions of his probation, that when the record shows affirmatively that the trial judge has ordered the suspension of sentence revoked and pronounced sentence, the defendant being present at such time of sentence, there is a conclusive presumption that the trial judge has, in the language of the statute, had 'reason to believe that the person so placed upon probation is violating the conditions of his...