State v. Belcher
| Decision Date | 04 June 1975 |
| Docket Number | No. 3016,3016 |
| Parties | STATE of Arizona, Appellee, v. Cornelius O. BELCHER, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen., N. Warner Lee, Former Atty. Gen., R. Wayne Ford, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
The appellant, Cornelius O. Belcher, pled guilty to the crime of armed robbery, received a five year suspended sentence and was placed on probation.
Less than six weeks later a bench warrant was issued for the appellant's arrest on the basis of a 'Petition to Revoke Probation' which alleged Blecher violated a condition of his probation by twice possessing a firearm without the consent of his probation officer. An initial appearance was held on May 21, 1974, at which time the defendant denied the allegations in the petition. The preliminary hearing on revocation was set for June 6, 1974. On that date the presiding judge, for unknown reasons, appeared dissatisfied with what occurred at the previous hearing. The defendant reaffirmed his denial of the allegations in the petition and declined to waive his right to a speedy hearing. The trial judge then set the new preliminary hearing on revocation for June 20, 1974.
On June 10, 1974, the defendant filed a motion to dismiss alleging violation of the defendant's right under Criminal Rule 27.7 to a preliminary hearing on revocation within twenty days of his initial appearance. At the preliminary hearing the defendant's motion to dismiss was denied and the court determined that 'on April 28, 1974, the defendant was in possession of a loaded 22 revolver without the consent of the Probation Officer and thus in violation of the terms of his probation.' On June 28, 1974, an order was issued revoking the defendant's probation and sentencing him to a term of not less than five or more than seven years in the Arizona State Prison.
Appellant's first contention is that the trial court's denial of his motion to dismiss at the outset of the preliminary hearing was an abuse of discretion. We do not agree. The comment to Rule 27.7(a), 17 A.R.S., states that the twenty day time limit is designed 'to protect probationers from lengthy unwarranted incarceration.' The time limit is not jurisdictional and in the absence of a prejudice we will not reverse the trial court's decision to revoke. State v. Huante, 111 Ariz. 236, 527 P.2d 281 (1974). The United States Supreme Court has held that due process requires that a revocation hearing must be held within 'a reasonable time' after a probationer is taken into custody. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The court stated that a two month period 'would not appear to be unreasonable.' Morrissey v. Brewer, supra. The lapse in this case between apprehension and the preliminary hearing was obviously less than two months.
The appellant has failed to show any prejudice in this case. The ten day delay alone is not sufficiently 'lengthy' to establish an abuse of discretion, especially where, as here, the trial judge specifically provided that the sentence imposed was to date from the defendant's apprehension.
The appellant's second contention is that hearsay testimony given by the probation officer at the preliminary hearing was insufficient to establish the violation alleged and infringed upon his Sixth Amendment right to...
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