State ex rel. Ronan v. Stevens
| Decision Date | 24 April 1963 |
| Docket Number | No. 7828,7828 |
| Citation | 93 Ariz. 375,381 P.2d 100 |
| Parties | STATE of Arizona ex rel. Charles N. RONAN, County Attorney of Maricopa County, Petitioner, v. Honorable Henry S. STEVENS, Judge of Superior Court, Maricopa County, and Paul Raymond LaCross, real party in interest, Respondents. |
| Court | Arizona Supreme Court |
Charles N. Ronan, County Atty. of Maricopa County, Robert J. Corcoran, Richard A. Johnson, Deputy County Attys., Phoenix, for petitioner.
Shannon & Fleming, Phoenix, for respondent Paul Raymond LaCross.
On December 15, 1961 the respondent Paul Raymond LaCross surrendered himself to the Scottsdale police and admitted that he had held up a 7-11 Market in Scottsdale on December 8, 1961. He then made full restitution of the money taken.
At the time of the holdup LaCross was 20 years of age and had a clean record. He was without funds, behind in his rent, and in a state of disheveled personal appearance so that he could not find employment. LaCross claimed that the holdup was a spur-of-the-moment act and that he had not had a gun or other weapon, but only an empty pop bottle in his pocket. With the money LaCross squared his debts, improved his personal appearance, secured a job and saved his earnings so that he could make restitution.
Respondent LaCross pleaded 'not guilty' to a criminal information charging him with robbery--punishable by imprisonment for not less than five years. Thereafter, LaCross withdrew his former plea and entered a plea of 'guilty' which was accepted by Judge D. H. Hays. The record does not indicate whether judgment of conviction was entered on the plea. On February 6, 1962, the day set for sentencing, LaCross appeared before Judge Henry S. Stevens, who continued the time for sentencing until February 13, 1962 with the recommendation that the information be amended to charge LaCross with grand theft--punishable by imprisonment for not less than one year. The County Attorney of Maricopa County refused this suggestion and time for sentencing was again continued until December 18, 1962. During the intervening months LaCross' conduct was exemplary.
On December 18, 1962 the County Attorney again refused to amend the information. Judge Stevens, noting that the County Attorney had reduced the charge from robbery to grand theft in several less meritorious instances, and feeling that LaCross had not earned a robbery conviction and that it was more just that he go forth into life with no conviction than to go forth as a convicted robber, set aside the plea of guilty and dismissed the cause with prejudice. The County Attorney seeks a writ of certiorari to review the lower court's proceedings.
Arizona Rule of Criminal Procedure 188, 7 A.R.S. provides that the court may any time before sentencing permit a plea of guilty to be withdrawn and, if judgment of conviction has been entered thereon, set it aside and allow a plea of not guilty to be substituted. We have said that the discretion of the trial court should be liberally exercised in favor of permitting the withdrawal. State v. Corvelo, 91 Ariz. 52, 369 P.2d 903 (1962). In light of these pronouncements the learned trial judge did not err in setting aside the plea of guilty whether or not judgment had been entered thereon.
The forerunner of the present Rule of Criminal Procedure 239--Ariz.Code § 44-1506 (1939)--provided:
'Dismissal of prosecution by indictment or information.--The court either on the application of the county attorney or on its own motion may in its discretion for good cause order that a prosecution by indictment or information be dismissed. The order for dismissal shall be entered of record with the reasons therefor.
(Italics added.) 1
In the 1956 revision of the Court's rules the italicized portion of § 44-1506 was deleted and the rule, as modified, was promulgated as Rule of Criminal Procedure 239.
A court has no power, in the absence of statute or rule, to dismiss a good information or indictment over the protests or objection of the prosecuting attorney. People v. Zobel, 54 Colo. 284, 130 P. 837 (1913); Commonwealth v. Flynn, 161 Ky. 289, 170 S.W. 617 (1914); Commonwealth v. Shields, 89 Pa.Super. 266 (1926); Annot., 69 A.L.R. 240 (1930). The effect of the above deletion was to withdraw from the superior court authority to dismiss an information or indictment for good cause upon its own motion.
We fell that the intentions of the trial court were commendable as being in the interests of justice and consonant with the principle recently enunciated that 'reformation and rehabilitation of offenders rather than retribution are the important goals of criminal jurisprudence.' State v. Maberry, 93 Ariz. 306, 380 P.2d 604. However, the dismissal of the information was not authorized by applicable rules or statutes and such action therefore exceeded the jurisdiction of the court for the reason that no jurisdiction existed to render the particular order. State ex rel. Mahoney v. Stevens, 79 Ariz. 298, 288 P.2d 1077 (1955).
The court in this case could have either set aside the plea of guilty and set the case for trial under Rule of Criminal Procedure 188; or, if the court felt that there were mitigating circumstances or that justice would be subserved thereby, it could have entered judgment on the plea, suspended sentencing and placed respondent on probation pursuant to A.R.S. § 13-1657; or it could have entered judgment on the plea and pronounced sentence upon the respondent pursuant to Rule of Criminal Procedure 325.
Respondent LaCross does not challenge the power of the Court to make the rule change and we do not here decide that question. Nor does he contend that...
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