State ex rel. Hyder v. Superior Court In and For Maricopa County, 14893-PR

• Decision Date: 15 January 1981
• Docket Number: No. 14893-PR,14893-PR
• Parties: STATE of Arizona, ex rel. Charles F. HYDER, Maricopa County Attorney, Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, the Honorable Frederic Heineman and Mickey L. Clifton, Real Party in Interest, Respondents.
• Court: Arizona Supreme Court

Page 1264

624 P.2d 1264

128 Ariz. 216

STATE of Arizona, ex rel. Charles F. HYDER, Maricopa County Attorney, Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, the Honorable Frederic Heineman and Mickey L. Clifton, Real Party in Interest, Respondents.

No. 14893-PR.

Supreme Court of Arizona, In Banc.

Jan. 15, 1981.

Tom Collins, Maricopa County Atty., Charles F. Hyder, Former Maricopa County Atty., Ronald W. Collett, Deputy County Atty., Phoenix, for petitioner.

Eldridge & Brown, P. A. by Patrick E. Eldridge, Phoenix, for respondents.

GORDON, Justice:

Mickey L. Clifton was charged by indictment in Maricopa County Superior Court on December 12, 1978, with two counts of grand theft by false representations and one count of attempted grand theft by false representations in violation of A.R.S. §§ 13-661, 663, 671(A), 1647, 108, 109 and 110. ¹ During trial in July of 1979, defendant Clifton moved for judgment of acquittal as to all counts, as allowed by Rule 20(a), Rules of Criminal Procedure, 17 A.R.S., both at the close of the state's case and at the close of all the evidence. The trial judge denied these motions and submitted the case to the jury which returned a guilty verdict as to Count I of grand theft and verdicts of acquittal as to the other two counts. The defendant then renewed his motion as to Count I, pursuant to Rule 20(b), Rules of Criminal Procedure, 17 A.R.S., arguing that there was no substantial evidence to warrant a conviction. The trial court granted the motion, set aside the jury verdict of guilty and ordered entry of judgment of acquittal.

The state filed a petition for special action in Division One of the Court of Appeals arguing that the trial judge had abused his discretion by granting the judgment of acquittal. The state also contended, as a basis for special action jurisdiction, that it had no equally plain, speedy, and adequate remedy by appeal because a judgment of acquittal after a jury verdict is nonappealable. ² Concluding that review by special action was appropriate, the Court of Appeals accepted jurisdiction, holding that the trial judge's order was not appealable by the state, ³ and determined that the trial judge had abused his discretion. State ex rel. Hyder v. Superior Court, 126 Ariz.App. ---, 624 P.2d 1289 (1980).

This petition for review was filed upon denial of a petition for rehearing in the Court of Appeals. Taking jurisdiction pursuant to A.R.S. § 12-120.24, Rule 23, Rules of Civil Appellate Procedure, 17A A.R.S., and Rule 8(b), Rules of Procedure for Special Actions, 17A A.R.S., we vacate the opinion of the Court of Appeals and order reinstatement of the jury verdict of guilt.

The facts necessary to our determination are as follows: On August 16, 1977, Clifton was notified by the Board of Governors of the State Bar of its recommendation that he be suspended from practice for 30 days and that he had 10 days to file objections. The notice stated further that failure to object would constitute acceptance of the suspension and that the Board's recommendations would be filed with this Court. Clifton filed no objections and testified that on or about August 27, 1977, he voluntarily suspended his practice. On August 28, one Steven Pritchard was arrested and apparently within a few days hired Clifton to represent him. On September 8, Clifton received a $500.00 retainer from Pritchard's mother.

The next day, the State Bar notified Clifton that because he had filed no objections to its recommendation, the Board of Governors would request this Court to suspend him. On September 13, Clifton informed the Staff Bar counsel, Mr. Lawrence Mattice, that he had thought the suspension would be automatic if he did not contest the recommendation, that he had suspended operations in his office at the end of August, and that he would inform this Court of his voluntary suspension. Mr. Mattice replied that he would include that information in the State Bar's recommendations to this Court and requested that Clifton send him copies of the letters he had sent to clients informing them of his suspension as required by 17A A.R.S. Sup.Ct. Rules, Rule 37(h). ⁴ Clifton testified that it was only at this time that he learned that his subsequent reinstatement would not be automatic.

On September 16, Pritchard met Clifton in Tucson to pay him another portion of the retainer. Pritchard testified that at that meeting Clifton informed him that Pritchard's preliminary hearing, scheduled for the next day, had been postponed. In fact it had not, and Pritchard also testified that Clifton never performed any legal services for him. There was conflicting testimony as to whether or not Clifton had arranged substitute counsel for Pritchard: Clifton testified he had asked an attorney Weihn to take the case; Weihn stated that Clifton had contacted him to handle the preliminary hearing but that Pritchard never went to see him; Pritchard testified that Clifton never told him anything about substitute counsel. There was also conflicting testimony regarding whether Clifton had informed Pritchard at the September 16th meeting of the suspension.

On September 23, Clifton's attorney notified this Court of Clifton's voluntary suspension and requested that we make the suspension retroactive to August 27. On October 4, Mr. Mattice wrote Clifton's attorney informing him of the telephone conversation with Clifton on September 13 and that Clifton had not yet sent him the copies of letters to clients regarding the suspension. The following day, October 5, we issued the order of suspension for 30 days, effective August 27, and assessing costs to be paid to the State Bar before application for reinstatement. On October 11, Clifton again received money from Pritchard. As a result of another charge of professional misconduct, Clifton was subsequently suspended indefinitely from practice, and no monies have been returned to his clients.

Clifton maintained at trial that he agreed to represent Pritchard at a time when he was still in good standing with the State Bar and that he intended to have continued any proceedings that might arise during his voluntary suspension. This, together with arrangements he said he made with attorney Weihn, would enable him to resume work for Pritchard at the termination of the suspension. He specifically denied taking money from Pritchard with the intent to do no work for him.

Clifton argues that reversal of the trial court's order violates the double jeopardy clauses of the United States and Arizona Constitutions. He also contended below that although the state had no right to appeal, a reviewing court should not automatically assume thereby that review by special action would be appropriate. He argued further that the Court of Appeals had erroneously concluded that there had been substantial evidence to support the jury verdict.

Before answering Clifton's specific contentions, we address a technical difficulty in the appeal statute concerning subsection 3 brought to our attention in the proceedings below. We do not, however, dispute and Clifton does not challenge the holding of the Court of Appeals that the state was unable to appeal the judgment of the trial court.

The state's right to appeal is governed by A.R.S. § 13-4032 which provides as follows:

"An appeal may be taken by the state from:

"1. An order quashing an indictment or information or count thereof.

"2. An order granting a new trial.

"3. An order arresting judgment.

"4. A ruling on a question of law adverse to the state when the defendant was convicted and appeals from the judgment.

"5. An order made after judgment affecting the substantial rights of the state.

"6. The sentence on the grounds that it is illegal, or if the sentence imposed is other than the presumptive sentence authorized by § 13-604 or 13-701.

"7. An order granting a motion to suppress the use of evidence." (Amended 1980.)

We agree with the Court of Appeals that the only sections arguably in favor of the state's ability to appeal in this case are subsections 3 and 5. The question, however, is whether the state can appeal an "order arresting judgment" as provided in subsection 3, given rules modifications by this Court abolishing the motion to arrest judgment.

The Rules of Criminal Procedure in effect prior to the current rules provided for the motion in arrest of judgment, 17 A.R.S., Rules of Criminal Procedure, Rule 315 et seq. (1956), which could be appealed, if granted or denied, pursuant to subsection 3 of the above appeal statute. In 1973, this Court revised the Rules of Criminal Procedure pursuant to the authority granted by the Arizona Constitution. A.R.S.Const. Art. 6, § 5(5); see State v. Blazak, 105 Ariz. 216, 462 P.2d 84 (1969); Arizona Podiatry Ass'n v. Director of Insurance, 101 Ariz. 544, 422 P.2d 108 (1966). The revision added the Rule 24.2 motion to vacate judgment to replace the use in criminal proceedings of Rule 60(c), Rules of Civil Procedure, 16 A.R.S. See 17 A.R.S., Rules of Criminal Procedure, Rule 24.2, comment. At the same time we abolished the motion in arrest of judgment as a procedural device. State v. Allen, 27 Ariz.App. 577, 557 P.2d 176 (1976); Rule 24.2, comment, supra. The right to appeal an order granting the motion has not, however, been deleted from § 13-4032 by the Legislature.

The issue becomes, then, whether the abolition of the motion in arrest of judgment, which deprives the state of the ability to appeal a trial court order granting such a motion, has improperly diminished the substantive right of the state to appeal. State v. Birmingham, 95 Ariz. 310, 390 P.2d 103 (1964); Matter of Maricopa County, Juv.Act. No. JS-834, 26 Ariz.App. 485, 549 P.2d 580 (1976). Such is not the case for the following two reasons:

First, the motion to vacate judgment encompasses the grounds of a motion in arrest of judgment. Both motions include as grounds a court's lack of...