State v. Avila

• Decision Date: 04 December 1985
• Docket Number: No. 6404,6404
• Citation: State v. Avila, 710 P.2d 440, 147 Ariz. 330 (Ariz. 1985)
• Parties: STATE of Arizona, Appellee, v. Pedro Dolz AVILA, Appellant.
• Court: Arizona Supreme Court

Page 440

710 P.2d 440

147 Ariz. 330

STATE of Arizona, Appellee, v.Pedro Dolz AVILA, Appellant.

No. 6404.

Supreme Court of Arizona In Banc.

Dec. 4, 1985.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Barbara Jarrett, Asst. Attys.Gen., Phoenix, for appellee.

James D. Himelic, Tucson, for appellant.

CAMERON, Justice.

The defendant, Pedro Dolz Avila, was convicted by a jury of armed robbery, A.R.S. § 13-1904; aggravated robbery, A.R.S. § 13-1903; and conspiracy to commit armed robbery, A.R.S. § 13-1003.The defendant was sentenced to life imprisonment on each charge and he appeals.We have jurisdiction pursuant to art. 6, § 5(3) of the Arizona ConstitutionandA.R.S. §§ 13-4031, -4035.

The issues to be resolved on review are:

1.Did the court of appeals have jurisdiction to hear the defendant's original appeal and to modify his sentence to life imprisonment?

2.Was it a violation of defendant's right against double jeopardy to increase his sentence to life imprisonment for the armed robbery conviction?

3.Did the court of appeals err in increasing to life imprisonment defendant's sentences for aggravated robbery, and conspiracy to commit armed robbery?

4.Did the trial court err in failing to direct a verdict of acquittal on the charge of conspiracy to commit armed robbery?

5.Did the trial court err in charging the jury by:

a. failing to instruct the jury on accomplice liability;

b. giving an incomplete instruction on the charge of conspiracy?

6.Did the trial court err in resentencing the defendant pursuant to A.R.S. § 13-604.02?¹

The facts follow.In the early morning of June 6, 1983, defendant and his two accomplices, Henry Congress and Louis Jordan, entered a convenience market in Tucson.The three men spread out around the store.Congress motioned for one of the clerks, Anthony Lumpkins, to come over by him so he could tell him something in confidence.Lumpkins, noting Congress' nervous demeanor, replied that he could talk to him from where he was standing.Defendant then pulled a gun on Lumpkins.Simultaneously, Jordan went around the counter and grabbed the other clerk, Janet Phillips, by the arm.Jordan and defendant exchanged looks, and said something to each other.Jordan told Phillips to get the money for him, and pulled her over to the cash register.As she was giving the money to Jordan, defendant suddenly fired the gun into the ceiling.Quickly, Jordan jumped over the store counter, without bothering to take the rest of the money.Defendant and his cohorts then ran from the store together.

Shortly thereafter, defendant, Congress and Jordan were spotted in the general vicinity of the store.When police attempted to talk to them, all three men fled.Defendant was apprehended and taken back to the store, where both Lumpkins and Phillips positively identified him as the man firing the gun during the robbery.Jordan was apprehended with money from the cash register still in his pocket.

The defendant was tried and convicted on all three charges.

The trial court, after finding that the defendant used a deadly weapon in connection with the armed robbery and was on "a form of release" from the Department of Corrections, sentenced defendant to twelve and a half (12.5) years on the armed robbery conviction, nine and a half (9.5) years on the aggravated robbery conviction, and ten and a half (10.5) years on the conspiracy conviction, all to run concurrently.A.R.S. §§ 13-604, -708.On appeal by the defendant and cross appeal by the state, the court of appeals found, as the state contended, that the trial court erred in not sentencing the defendant to life imprisonment pursuant to A.R.S. § 13-604.01(now § 13-604.02).The court of appeals then went on to dispose of the issues raised by the defendant affirming the convictions but setting aside the sentence stating, "[t]he three sentences are modified to concurrent life sentences and as modified are affirmed."State v. Avila, 141 Ariz. 325, 686 P.2d 1295(App.1984).

The matter was returned to the trial court where the judge in resentencing stated:

The matter was considered by Division Two of the Court of Appeals in 2 CA-CR 3286, and this division of the Court of Appeals handed down a remand or a mandate that the sentence given on October 7th, 1983, in all three charges be increased to concurrent life sentences.

The trial court also notified defendant of his right to appeal which appeal was perfected to this court.

JURISDICTION OF THE COURT OF APPEALS

The court of appeals is a legislative court and has only such jurisdiction specifically given it by statute.State v. Mileham, 1 Ariz.App. 67, 399 P.2d 688(1965).A.R.S. § 12-120.21 reads:

A.The court of appeals shall have:

1.Appellate jurisdiction in all actions and proceedings * * * except criminal actions involving crimes for which a sentence of death or life imprisonment has actually been imposed.

A.R.S. § 12-120.22 also provides:

B.No case, appeal or petition for writ brought in the supreme court or court of appeals shall be dismissed for the reason only that it was not brought in the proper court or division, but it shall be transferred to the proper court or division.

Defendant argues that the court of appeals did not have jurisdiction to modify his sentence to life imprisonment.Defendant concedes that the court of appeals originally had jurisdiction because a life sentence was not actually imposed.A.R.S. § 12-120.21.He contends, however, that once the court of appeals determined that a life sentence should have been imposed that it should have transferred the case to this court.We agree.

The court of appeals like any court should on its own motion consider its jurisdiction.State v. Cuzick, 5 Ariz.App. 498, 428 P.2d 443(1967)."It is the first duty of any court to determine whether it has jurisdiction in the case".In Re Appeal in Maricopa County, Juvenile ActionNo. A-27789, 140 Ariz. 27, 30, 680 P.2d 163, 166(App.1983), "Jurisdiction cannot be waived and may be raised at any stage of the proceeding".Bruce v. State, 126 Ariz. 271, 272, 614 P.2d 813, 814(1980).

In the instant case, once the court of appeals determined that life imprisonment was the proper penalty, it lacked jurisdiction to proceed further.It, therefore, should have transferred the matter to this court for further proceedings.A.R.S. § 12-120.22.Since the court of appeals had no jurisdiction to determine the other issues raised on appeal after it determined that the penalty of life imprisonment was mandatory, the court's opinion on the merits is of no force and effect.As we have noted:

Defendant was convicted of one count of burglary, second degree, former A.R.S. § 13-302, and one count of grand theft, former A.R.S. § 13-661, and received concurrent sentences of twenty years to life for the burglary, and nine to ten years for the grand theft.The defendant unsuccessfully appealed the convictions and sentences to the Court of Appeals, Division Two, 125 Ariz. 51, 607 P.2d 34(App.1980).Defendant petitioned this court for a delayed appeal, and for review of his post conviction petition pursuant to Rule 32,Arizona Rules of Criminal Procedure, 17 A.R.S.We granted defendant's petition because the Court of Appeals lacked jurisdiction to consider the appeal since the penalty actually imposed was life imprisonment, and exclusive appellate jurisdiction lies in this court.A.R.S. §§ 12-120.21(A)(1)and13-4031.See alsoArizona Constitution, Article 6, Section 5(3).

State v. Bernal, 137 Ariz. 421, 422, 671 P.2d 399, 400(1983).In taking jurisdiction as we did in Bernal, supra, we impliedly overruled any statements to the contrary in State v. Howell, 107 Ariz. 300, 486 P.2d 782(1971).There is, however, no harm done.The matter was returned to the trial court which had jurisdiction and where the defendant was resentenced.He then was allowed to appeal to this court raising in addition to the double jeopardy issue, all matters previously raised in his appeal to the court of appeals.It is noted that the defendant also requested a delayed appeal.Since the defendant has been able to raise all the issues he wished in this appeal, he has had in effect, the delayed appeal he requested.

DOUBLE JEOPARDY

Defendant claims that imposition of a sentence of life imprisonment for the conviction of armed robbery, as mandated by the court of appeals, after he had originally been sentenced to a lesser term, violates his fifth amendment right against double jeopardy, citing State v. Rumsey, 136 Ariz. 166, 665 P.2d 48(1983), affirmed by the United States Supreme Court, in Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164, (1984).

In Rumsey, supra, a defendant was convicted of first degree murder.Following a separate sentencing hearing, the trial judge entered findings that there were no aggravating or mitigating factors present and, therefore, sentenced the defendant to life imprisonment.This court, on appeal, held that the trial court had misinterpreted the law concerning pecuniary gain as an aggravating factor and thus remanded for a redetermination of aggravating and mitigating circumstances and for resentencing.State v. Rumsey, 130 Ariz. 427, 636 P.2d 1209(1981).The trial court, after a new sentencing hearing, imposed the death penalty.In the second appeal, Rumsey II, we held this to be a violation of defendant's double jeopardy rights.136 Ariz. 166, 665 P.2d 48(1983).

In Rumsey II, we held that the capital sentencing procedure pursuant to A.R.S. § 13-703 was " 'like a trial on the issue of guilt or innocence,' "State v. Rumsey, 136 Ariz. at 171, 665 P.2d at 53, quotingBullington v. Missouri, 451 U.S. 430, 444-45101 S.Ct. 1852, 1861, 68 L.Ed.2d 270(1981), and that Rumsey had in effect been acquitted of the aggravating circumstance.

In the instant casewe believe the imposition of the more severe penalty avoids the double jeopardy violations of Rumsey and Bullington for...