State v. Bly, 4262
Decision Date | 17 October 1978 |
Docket Number | No. 4262,4262 |
Citation | 120 Ariz. 410,586 P.2d 971 |
Parties | The STATE of Arizona, Appellee, v. Kenneth Malcolm BLY, Jr., Appellant. |
Court | Arizona Supreme Court |
John A. LaSota, Jr., Atty. Gen. by William J. Schafer, III, and Robert S. Golden, Asst. Attys. Gen., Phoenix, for appellee.
John C. Stallings, Prescott, for appellant.
This is an appeal from a revocation of probation in absentia and a sentence of two to three years in the Arizona State Prison.
We must answer two questions on appeal:
1. Was the probation of the defendant properly revoked?
2. Was the defendant properly sentenced?
The facts necessary for a determination of this matter are as follows. On 17 February 1976, the defendant Kenneth Malcolm Bly, Jr., pursuant to a written plea agreement, entered a plea of guilty to the crime of insufficient funds checks, a felony, in violation of A.R.S. § 13-316. On 29 March 1976, defendant was adjudged guilty of the crime of insufficient funds checks and imposition of sentence was suspended for a period of three years and the following conditions, among others, were imposed:
1. that defendant report monthly to the Adult Probation Department;
2. that defendant advise the Adult Probation Department of his residence address and place of employment;
3. that defendant not change his place of residence without first securing the approval of the Adult Probation Department; and
4. that defendant pay, within a three month period, the amount of $753.60 as restitution.
The adult probation officer had a face-to-face conversation with the defendant on 29 March 1976 and thereafter received three written reports from the defendant for the months of April, May, and June. On 13 July 1976, a petition for revocation of probation was filed. A bench warrant was issued for defendant's arrest but defendant was not located nor taken into custody. More than one year later, on 14 September 1977, a petition for revocation of probation in absentia pursuant to Rule 27.9, Rules of Criminal Procedure 1973, as amended 1977, was filed. The petition was filed by the adult probation officer responsible for defendant's conduct and verified by said probation officer. The petition contained the following:
The petition also alleged that the defendant violated the following conditions of probation:
1. the defendant failed to continue to submit written reports to the probation officer, this failure continuing for more than one year starting with the month of July, 1976;
2. the defendant failed to advise the probation officer of his place of employment or residence, this failure continued for more than one year starting with the month of July, 1976;
3. defendant failed to secure probation officer's permission to leave the jurisdiction; and
4. defendant failed to timely pay the court ordered restitution.
The return receipts were filed indicating that the notices were timely mailed, but that the defendant never received the mailings or had notice of the "petition for revocation of probation in absentia."
Defendant was represented by counsel at the hearing and testimony was taken. Probation was revoked from which defendant appeals.
Rule 27.9 of the Rules of Criminal Procedure provides that a proceeding to revoke probation in absentia may be commenced after the probationer's whereabouts are unknown to the probation officer for at least 60 days, his probation officer has reasonable cause to believe that the probationer has violated a written condition of his probation and that efforts have been made to locate the probationer. Section (c) of Rule 27.9 provides that the court shall issue an order to show cause directing the probationer to appear in not less than 10...
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State v. Forte
...Ariz. 557, ¶ 53, 74 P.3d 231, 245-46 (2003), including a sentencing hearing following the revocation of probation. State v. Bly, 120 Ariz. 410, 413, 586 P.2d 971, 974 (1978); State v. Stone, 111 Ariz. 62, 64, 523 P.2d 493, 495 (1974). This right is grounded in the Sixth and Fourteenth Amend......
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State v. Adler
...the defendant was in federal custody, the state could have proceeded in absentia. See Ariz. R.Crim. P. 27.9(b); 3 State v. Bly, 120 Ariz. 410, 412, 586 P.2d 971, 973 (1978). If good faith efforts had been made to locate and notify defendant in 1988, the probation officer could have petition......
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State v. Adler
...in absentia, and we agree. But Appellant could not have been sentenced in absentia absent his agreement. See State v. Bly, 120 Ariz. 410, 413, 586 P.2d 971, 974 (1978). The record contains no indication that Appellant unconditionally agreed to in absentia (or telephonic) sentencing before h......
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State v. Matthews, 1 CA-CR 11-0628
...duty to report his home address to his probation officer in Mohave County and to seek permission before moving. See State v. Bly, 120 Ariz. 410, 412, 586 P.2d 971, 973 (1978) ("The probationer has the positive duty to keep the adult probation officer apprised of his whereabouts. When he fai......