State ex rel. Berger v. Jennings

• Decision Date: 21 March 1974
• Docket Number: No. 11466,11466
• Citation: 520 P.2d 313,110 Ariz. 441
• Parties: The STATE of Arizona ex rel. Moise BERGER, Maricopa County Attorney, Petitioner, v. The Honorable Renz JENNINGS, Justice of the Peace for the East Phoenix Precinct #1, Maricopa County, Arizona; and Roy B. McGRAW, Real Party in Interest, Respondents.
• Court: Arizona Supreme Court

Page 313

520 P.2d 313

110 Ariz. 441

The STATE of Arizona ex rel. Moise BERGER, Maricopa County Attorney, Petitioner, v. The Honorable Renz JENNINGS, Justice of the Peace for the East Phoenix Precinct #1, Maricopa County, Arizona; and Roy B. McGRAW, Real Party in Interest, Respondents.

No. 11466.

Supreme Court of Arizona, In Banc.

March 21, 1974.

Moise Berger, Maricopa County Atty., by Jeffrey S. Kaufman, Deputy County Atty., Phoenix, for petitioner.

Ross P. Lee, Maricopa County Public Defender, by Bedford Douglass, Jr., Deputy Public Defender, Phoenix, for respondent McGraw.

George S. Lim, Phoenix, for respondent Jennings.

CAMERON, Vice Chief Justice.

We granted the petition for special action of the Maricopa County Attorney to consider an interpretation of the Rules of Criminal Procedure 1973 presented by the issues herein.

We are asked to consider whether a Justice of the Peace, sitting as a committing magistrate, at the close of the preliminary hearing, may take the matter under advisement before rendering his decision, and, if so, for how long may be keep the matter under advisement.

The facts necessary for a determination of this matter on appeal are as follows. A preliminary hearing was held in East Phoenix Precinct No. 1 of Maricopa County for the defendant and real party in interest, Roy B. McGraw, charged with a felony, to wit: driving while under the influence of intoxicating liquor while license suspended, revoked or refused. At the conclusion of the prosecution's case, including cross-examination of prosecution witnesses by the defense counsel, respondent Justice of the Peace Renz D. Jennings, took the matter under advisement, allegedly in order to determine whether the defendant's automobile license revocation for points was in violation of the due process clause of the Fourteenth Amendment of the United States Constitution. From this action by Justice of the Peace Renz D. Jennings, the County Attorney filed a petition for special action in this court.

Although this action might more properly have been brought in the Superior Court of Maricopa County, § 12--124 A.R.S. and Rule 7(a), Rules of Procedure for Special Action, 17A A.R.S., we accepted jurisdiction because of the general interest in and the application of the New Rules of Criminal Procedure 1973 recently adopted by this court.

Rule 5.3(a), Rules of Criminal Procedure 1973, reads as follows:

'The preliminary hearing shall be held before a magistrate who shall admit only such evidence as is material to the question whether probable cause exists to hold the defendant for trial. All parties shall have the right to cross-examine the witnesses testifying personally against them, and to review their previous written statements prior to such cross-examination. At the close of the prosecution's case, including cross-examination of prosecution witnesses by the defendant, the magistrate shall determine and state for the record whether the prosecution's case establishes probable cause. The defendant may then make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The magistrate shall allow the defendant to present the offered evidence, unless he determines that it would be insufficient to rebut the finding of probable cause.'

A preliminary hearing is not a trial in an ordinary sense, and although it must comport with the requirements of due process, not all procedures for a trial have to be employed. State v. Lenahan, 12 Ariz.App. 446, 471 P.2d 748 (1970). A preliminary hearing is merely a procedure wherein the State is required to show probable cause for the courts to retain jurisdiction of the defendant and the defendant given an opportunity, if he desires, to show why there is an absence of...