State v. Brown
| Decision Date | 25 February 1975 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 23 Ariz.App. 225,532 P.2d 167 |
| Parties | STATE of Arizona, Appellee, v. John Henry BROWN, Appellant. 711. |
| Court | Arizona Court of Appeals |
Several issues are raised on this appeal from an order of the Maricopa County Superior Court revoking appellant's probation and imposing a sentence of not less than three nor more than five years in the Arizona State Prison.
Before considering the issues raised by appellant, the Court must Sua sponte determine whether under the 1973 Rules of Criminal Procedure the right to appeal remains as an available remedy for the review of probation revocation proceedings. If not, then this Court lacks jurisdiction to proceed further. This issue becomes manifest when one considers the provisions of Rules 27.7(e), 32.1(c), 32.1(d), Rules of Criminal Procedure, 17 A.R.S., and the comments thereto, which will be discussed in detail later in this opinion.
In the case before us the criminal action was commenced on August 4, 1972, when a complaint was filed charging the appellant with the crimes of burglary and grand theft. Rule 1.5 of the 1973 Rules of Criminal Procedure states that 'These rules shall govern all criminal actions commenced on or after twelve o'clock midnight, 1 September 1973.' Since this particular criminal action was commenced prior to September 1, 1973, it would initially appear that the old rules would apply, and that therefore it would not be necessary to consider any provisions of the new rules relating to probation revocation review procedures. However, consideration must be given to the decision of the Arizona Supreme Court in Noble v. State, 109 Ariz. 537, 514 P.2d 458 (1973), which, to some extent, modifies the provisions of Rule 1.5, so as to make certain provisions of the 1973 rules applicable to actions commenced before September 1, 1973. In Noble v. State, Supra, the Court was faced with two petitions for habeas corpus filed on September 7, 1973 and September 11, 1973, respectively. In both cases the underlying action had been originally commenced prior to September 1, 1973. After discussing Rule 1.5, the Court stated:
'We therefore hold that although based upon convictions resulting from matters which were commenced before 1 September 1973, a petition for writ of habeas corpus Or any other petition for post-conviction relief under Rule 32 is a new action for the purposes of the 1973 criminal rules and is considered 'commenced' on the day it is filed.' (Emphasis added). 109 Ariz. at 538, 514 P.2d at 459.
The pertinency of the holding in Noble that petitions for post-conviction relief filed subsequent to September 1, 1973, are to be governed by the provisions of the 1973 rules arises from the fact that Rule 27 of the 1973 rules, which deals with revocation of probation, and the comments to Rule 27.7(e) state that review of a probation revocation is to be by means of a petition for post-conviction relief under Rule 32. In addition, Rule 32.1 itself includes language indicating that the review of probation revocation is to be accomplished through a Rule 32 petition when it provides for relief on the grounds that:
The comment to Rule 32.1(d) states that probationers who wish to challenge the revocation and the resulting sentence Will have to file a petition under Rule 32.1(c) and (d) rather than appealing from the revocation and sentence imposed as was the case under the old rules. Thus, because Noble v. State has stated that petitions for post-conviction relief filed after September 1, 1973 are governed by Rule 32, and, it appearing that under Rule 32.1(c) and (d) the only means of attacking a revocation of probation is pursuant to those rules, it would logically follow that there is no right to appeal directly from a revocation of probation which occurs after September 1, 1973. If the foregoing interpretation is correct, the probationer must pursue his new remedy for post-conviction relief under Rule 32, prior to bringing the matter before this Court for appellate review.
However, notwithstanding the rather direct comment to Rule 32.1(d) that probationers who want to review their revocation and the resulting sentence will have to file a Rule 32 petition rather than appealing as under prior practice, there are some contra-indications in the 1973 rules which arguably indicate that the appeal remedy was still to be available.
Thus, Rule 27.7(d) commands that if probation is revoked the Court shall pronounce sentence in accordance with the proceedings set forth in Rules 26.10 through 26.16. Rule 26.11 provides that after pronouncing sentence the court shall:
* * *
* * *
The comments to Rule 26.11 state that Form XXIII should be used to notify the defendant of his appeal rights. That form provides:
(Emphasis added).
The probationer who seeks review is thus left in the dilemma of being faced on the one hand with the above-discussed Rule 32.1(d) comment to the effect that he can only seek review through a Rule 32 petition for post-conviction relief, and, on the other hand, of being specifically advised both orally by the Court pursuant to Rule 26.11 and in writing through the provisions of Form XXIII, that he has the right to appeal, and that he will lose that right if he does not timely exercise it. Given these circumstances, it is not surprising that many defendants, including the appellant herein, have elected to follow the appeal route.
We are aware of only one Arizona appellate decision which has given any consideration to this review question. Division 2 of this Court has followed the comments to Rule 32.1(d) in the case of State v. Corrales, 22 Ariz.App. 516, 528 P.2d 1275 (1974) and has held that the Court lacked jurisdiction in an attempted appeal from a revocation of probation and imposition of sentence, stating that appellant's proper remedy was by way of a Rule 32 post-conviction relief petition in the trial court. For the reasons stated in this opinion, we hold that, notwithstanding the above-discussed comment to Rule 32.1(b), a probationer who wishes to challenge his revocation and the resulting sentence has the option of either timely filing an appeal pursuant to Rule 31 or a petition for post-conviction relief pursuant to Rule 32.
Initially we note that in the original 'Arizona Proposed Rules of Criminal Procedure', 1 proceedings governing post-conviction relief were set forth in proposed Rule 35. Under proposed Rule 35.10, the review of post-conviction proceedings was by Appeal. However, prior to adoption of the rules, the right of appeal was dropped, and Rule 32.9 was substituted, providing for a discretionary review of post-conviction relief proceedings, in the nature of certiorari. The comments to Rule 35.10 indicate that the drafting committee considered the right to appeal from all post-conviction proceedings to be a substantive right given by the Arizona Constitution and statutes, and thus outside the scope of the Arizona Supreme Court's power to modify. 2 The Supreme Court obviously rejected this contention by adopting Rule 32.9. While it is within the power of this Court to consider and rule upon the constitutionality of a rule adopted by the Arizona Supreme Court, See State v. Meek, 9 Ariz.App. 149, 450 P.2d 115 (1969), cert. denied, 396 U.S. 847, 90 S.Ct. 73, 24 L.Ed.2d 98 (1969), we choose not to base our holding that appeal is still available to review probation revocation proceedings upon any theory that the denial of such appeal would be a violation of the provisions of Art. 2, § 24, of the Arizona Constitution. Moreover, we do recognize the possibility that the comment to Rule 32.1(d) mandating review of probation revocation through Rule 32 post-conviction proceedings is an inadvertent comment holdover which should have been omitted when the appeal provisions of the originally proposed Rule 35.10 were dropped. However, this is mere speculation on our part. What is not speculation on our part, is the fact that, regardless of the original intent, the appellant seeking review of probation revocation proceedings is now faced with a confusing situation where he is expressly told that he has the right to appeal, but then through the comments to the rules is told that he has no such right. Under these circumstances it is our opinion that both remedies should remain alternatively available to him.
It is anticipated that the normal choice for review would be by appeal pursuant to Rule 31. However, where matters weighing on the lawfulness of the revocation or subsequent sentence came to light after the revocation and sentencing hearings, and were thus not previously before the trial court, and consequently not ripe for appellate review, a petition for relief pursuant to Rule 32 would be the better remedy. Under these circumstances the applicant could then proceed in a...
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