State v. Berryman

• Decision Date: 16 October 1970
• Docket Number: No. 2115,2115
• Citation: State v. Berryman, 106 Ariz. 290, 475 P.2d 472 (Ariz. 1970)
• Parties: STATE of Arizona, Appellee, v. Beri BERRYMAN, Appellant.
• Court: Arizona Supreme Court

Page 472

475 P.2d 472

106 Ariz. 290

STATE of Arizona, Appellee, v. Beri BERRYMAN, Appellant.

No. 2115.

Supreme Court of Arizona, In Banc.

Oct. 16, 1970.

Gary K. Nelson, Atty. Atty. Gen., by Carl Waag, Asst. Atty., Gen., Phoenix, for appellee.

Taylor, Grace & Petica, by Ronald H. Petica, Phoenix, for appellant.

McFARLAND, Justice.

Beri Berryman, hereinafter referred to as the defendant, was tried and convicted of two counts of armed robbery and for punishment therefor was sentenced to serve not less than five years nor more than five years and six months in the Arizona Penitentiary on each count to run concurrently commencing on November 15, 1968. From his conviction and sentence he appeals.

On the 24th day of July, 1968, at approximately 9:23 p.m. the defendant went to Fry's Market at 1625 West Camelback, Phoenix, Arizona, along with two other suspects. The defendant walked up to Mildred Crump, a cashier, with a gun, telling her 'This is a stick up. Don't get scared and start screaming.' After she had given him the money in her possession he then went to an adjoining cashier, Pete Martinez, and made the same demand. Pete Martinez had witnessed the robbery of Mildred Crump. The money was then taken out of Pete Martinez' cash register. Martinez testified that the defendant had instructed him to take the money out of his register and put it in a paper bag; that another man then came and got the paper bag. Count I was based on the robbery of Mildred Crump and Count II was upon the robbery of Pete Martinez. The defendant contends that he was not properly charged for the reason that the two counts of robbery arose out of a single transaction. Robbery is defined in § 13--641 A.R.S. as follows: 'the felonious taking of personal property in the possession of another from his person or immediate presence, and against his will, accomplished by means of force or fear.' The statute does not require ownership of the property by the person from whom it is taken. The question then is whether under the facts two robberies were committed.

In State v. Boag, 104 Ariz. 362, 453 P.2d 508, we held:

'The time span in which the acts were committed is immaterial, so long as the State can prove each act was composed of the necessary criminal elements.'

Also see State v. Vallejos, 89 Ariz. 76, 358 P.2d 178. Appellant contends that he is being subjected to double punishment contrary to A.R.S. § 13--1641 which provides as follows:

'An act or omission which is made punishable in different ways by different sections of the laws may be punished under either, but in no event under more than one. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.'

In State v. Boag, supra, quoting State v. Hutton, 87 Ariz. 176, 349 P.2d 187, we said:

"* * * The above statute covers a situation where the Same act is punishable in different ways under different sections of the law. Under such a situation, he can be punished for only one offense. Burglary and theft are two separate and distinct acts. * * * We have had occasion to construe the aforementioned section of the statute and Held in effect that for the section to operate to prevent double punishment, the two alleged crimes must have identical components. State v. Westbrook, 79 Ariz. 116, 285 P.2d 161, 53 A.L.R.2d 619. * * *' (Emphasis in original).

'For other cases construing this statute see State v. Jacobs, 93 Ariz. 336, 380 P.2d 998; and State v. Martinez, 67 Ariz. 389, 198 P.2d 115.'

In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, the court held:

'The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.

'After the first jury had acquitted the petitioner of robbing Knight, Missouri could certainly not have brought him to trial again upon that charge. Once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery of Knight in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery. For the name of the victim, in the circumstances of this case, had no bearing whatever upon the issue of whether the petitioner was one of the robbers.'

The facts of the instant case do not support and contention that the robbery of Mildred Crump and Pete Martinez was a single robbery. We accordingly hold that the defendant was properly charged with two counts of robbery.

The second contention of the defendant was that the sentence of the court was improper in that it only dealt with one count or was confusing. The reporter's transcript shows at the time of the sentencing of defendant he was advised:

'THE COURT: And you are represented by your attorney, Mr. Mehrens, are you not?

DEFENDANT BERRYMAN: Yes, sir.

THE COURT: And you know, of course, that you have been charged by the State of Arizona with commission of two armed robberies, do you not?

DEFENDANT BERRYMAN: (Nods head.)

THE COURT: And you were found guilty during trial of both of these offenses. You realize that?

DEFENDANT BERRYMAN: (Nods head.)

THE COURT: Do you have anything to say at this time as to why sentence should not now be imposed upon you or anything at all concerning your sentencing?

DEFENDANT BERRYMAN: No, sir, I do not.

THE COURT: Either of you?'

'Since there is no legal cause appearing to me otherwise, it's the finding and verdict and judgment of the Court that you are guilty of armed robbery on two counts, as you were found guilty by the jury upon trial in this same court.

'It's the judgment of the Court then that you be sentenced to serve not less than five years down at the State Penitentiary in Florence since I assume what you tell me is correct, it's verified by the County Attorney.

It's also the judgment of the Court or the order of the Court that you serve not more than five years and six months.

Now the time of sentence will begin to run from the date of your incarceration in the County Jail.'

The Minute Entry of the clerk reads:

'IT IS THE JUDGMENT OF THIS COURT that you, Beri Berryman, are guilty of the crime of robbery, two counts, felonies.

IT IS ORDERED that you be sentenced to be incarcerated in the Arizona State Prison, Florence, Arizona for a period of not less than five (5) years nor more than five (5) years and six (6) months on each count, said terms to run concurrently and commencing as of November 15, 1968, the date of your incarceration in the Maricopa County Jail.'

The written judgment and sentence reads in part as follows:

'IT IS THE JUDGMENT of the court that the defendant Beri Berryman is guilty of Robbery (Two Counts) Felonies as charged in the (Information).

The defendant was asked whether the had anything to say or any legal cause to show why sentence should not be pronounced. There was none.

IT IS THE JUDGMENT AND ORDER OF THE COURT, that you be sentenced to be incarcerated in the Arizona State Prison, at Florence, Arizona for a period of not less than Five (5) years nor more than Five (5) years and Six (6) months on each count, said terms to run concurrently and commencing as of November 15, 1968, the date of your incarceration in the Maricopa County Jail.'

In Anderson v. State, 54 Ariz. 387, 96 P.2d 281, we held:

'* * * the judgment in a criminal case must be rendered in open court and entered upon the minutes of the court, and that no other written judgment is required. A certified copy of the minute entry is the only instrument needed to justify the proper authorities of the state prison in receiving and holding a defendant until his sentence has expired or he is otherwise released according to law.'

In State v. Dowthard, 92 Ariz. 44, 373 P.2d 357, we again said that 'a judgment is complete and valid when it is orally pronounced by the court and entered in the minutes.'

Rule 339, A.R.S. Rules of Criminal Procedure, 17 A.R.S. provides:

'Sentence; when concurrent and when consecutive

When the defendant has been convicted of two or more offenses charged in the same indictment or information, the terms of imprisonment...