State v. Bigelow
| Decision Date | 26 May 1953 |
| Docket Number | No. 1036,1036 |
| Citation | 39 A.L.R.2d 979,258 P.2d 409,76 Ariz. 13 |
| Parties | , 39 A.L.R.2d 979 STATE v. BIGELOW. |
| Court | Arizona Supreme Court |
Am. P. Mahoney, Jr., County Atty., and James H. Green, Jr., Deputy County Atty., Phoenix, for the State.
Harold E. Whitney, of Phoenix, for defendant.
This cause comes to us under the provisions of section 44-2401, A.C.A.1939. There have been certified to us the following questions of law for our determination:
'1. Upon a conviction of defendant on a second or subsequent violation of Section 66-156, Arizona Code Annotated 1939 (Laws, 1950, First Special Session, Chapter 3, Section 54), is the Superior Court of the State of Arizona in and for the County of Maricopa empowered to suspend sentence?
'2. Upon a conviction of a person for violation of the section hereinabove referred to (driving an automobile while under the influence of intoxicating liquor with prior conviction) is it mandatory upon the Court to impose as its sentence an actual imprisonment of that person in the county jail for a period of not less than ninety (90) days?
'3. If a person be convicted of driving an automobile while under the influence of intoxicating liquor on a second or subsequent conviction under the Laws of 1950, First Special Session, Chapter 3, Section 54, does the provision of Section 66-156, Arizona Code Annotated 1939, paragraph d, reading as follows:
"* * * On a second or subsequent conviction he shall be punished by imprisonment for not less than 90 days nor more than 1 year in the county jail, and, in the discretion of the court, a fine of not more than $1,000.00.'
make it mandatory upon the judge of the Superior Court to impose a jail sentence?
Section 66-156, Cum.Supp.1952, makes it unlawful for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within the state and subsection (d) thereof provides:
It is to be noted by the specific provisions of the foregoing section that on second or subsequent convictions the defendant shall be punished by imprisonment for not less than 90 days nor more than one year and in addition thereto, in the discretion of the court, by a fine of not more than $1,000. Patently, if imprisonment is to be meted out there is a minimum and a maximum. Likewise, if there is superimposed a fine there is a minimum and a maximum.
The power vested in the court to grant probation upon conviction of any public offense is found in section 44-2229, A.C.A. 1939, which reads as follows:
(Section 44-2222, A.C.A. 1939, provides that the court may on its own motion, make the above investigation.)
This is a general section applicable upon conviction of any public offense. By its terms the court is empowered to grant probation in any case 'where discretion is conferred upon the court as to the extent of the punishment'. As pointed out above, the statute providing the penalty on second or subsequent convictions of drunk driving provides the extent of the punishment, i. e., a maximum and a minimum, which language vests a discretion in the trial court, as to the extent of the punishment.
By the express provisions of this statute conferring upon the judge the power to grant probation the court is expressly admonished that if it is of a mind to consider probation, it shall take into consideration any circumstances in mitigation of the punishment that might exist, or any other circumstances tending to show that the ends of justice would be subserved by granting probation. This all contemplates that the court will exercise a sound discretion in the premises, keeping in mind punishment where it is deserved, the protection of the public, the probability of the defendant offending again, and the rehabilitation of the defendant. It should be remembered that the right of the public to protection from injury and death in its use of the public highways transcends the rights of any individual citizen and if it appears probable that a defendant convicted of drunk driving a second time will repeat the offense, the interest of the public should not be ignored.
In speaking of the discretion vested in the trial court to grant probation we said in Varela v. Merrill, 51 Ariz. 64, 74 P.2d 569, 574, that:
* * *'
Nevertheless we desire to point out to the trial courts that the legislature in fixing the penalty for second and subsequent convictions for drunk driving prescribed a more severe penalty. This undoubtedly for the reason, which is a matter of...
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U.S. v. Liddy
...installment or to be imposed with reference to specified contingencies has similarly been disapproved. The court in State v. Bigelow, 76 Ariz. 13, 258 P.2d 409 (1953), invalidated a sentence of ninety days' confinement, to be served on certain days each week, on the ground that '(t)he super......
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... ... The right to suspend a sentence in a criminal case can only be exercised in accordance with A.R.S. § 13--1657, State v. [12 Ariz.App. 284] ... Bigelow, 76 Ariz. 13, 258 P.2d 409, 39 A.L.R.2d 979 (1953), since such power did not exist at common law, Varela v. Merrill, 51 Ariz. 64, 74 P.2d 569 (1937). State v. Washington, 5 Ariz.App. 400, 427 P.2d 381 (1967); State v. Douglas, 87 Ariz. 182, 349 P.2d 622, certiorari denied 363 U.S. 815, 80 S.Ct ... ...
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