State v. Buckley
| Decision Date | 05 February 1987 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 153 Ariz. 91,734 P.2d 1047 |
| Parties | STATE of Arizona, Appellee, v. Robert BUCKLEY, aka Robert Buckman, Appellant. 10136. |
| Court | Arizona Court of Appeals |
The issues raised in this appeal are whether (1) the state's failure to file a formal information charging appellant with a crime voids his subsequent conviction and sentence which were based on his guilty plea, and (2) appellant may raise the issue of lack of subject matter jurisdiction for the first time on appeal from his revocation of probation.
A complaint was filed against appellant in justice court on July 17, 1985, charging him with robbery, a class 4 felony. Appellant waived his preliminary hearing and was bound over to the Maricopa County Superior Court. Appellant signed a written plea agreement on August 20, 1985, in which he pleaded guilty to the charge in exchange for a suspended sentence and a probation term of four years on the condition that he serve six months in jail. The record indicates that no document entitled "Information" was filed in this matter.
Appellant's probation officer filed a petition to revoke probation on February 27, 1986, alleging that appellant had committed the crime of driving while intoxicated, had driven with a suspended license, and had consumed alcoholic beverages, all in violation of his probation. Appellant denied the violations. The trial judge found that appellant had consumed alcoholic beverages, but had not committed the other two violations. On April 16, 1986, the court imposed a five year aggravated sentence on appellant, and ordered that he make restitution in the amount of $7,473. Appellant appeals from his revocation of probation solely on the ground that the trial court lacked subject matter jurisdiction to convict and sentence him because no information was ever filed. He argues that because his conviction was void, his revocation of probation was improper.
The state first argues that appellant waived his objection to the lack of an information by failing to file a motion to dismiss in superior court.
The court, on motion of the defendant, shall order that a prosecution be dismissed upon finding that the indictment, information, or complaint is insufficient as a matter of law.
Rule 16.5(b), Arizona Rules of Criminal Procedure. Courts applying Rule 16.5 have concluded that when a defendant fails to move to dismiss the information for insufficiency, he is precluded from raising the issue on appeal, pursuant to the terms of Rule 13.5(c). State v. Bailey, 125 Ariz. 263, 609 P.2d 78 (App.1980). Rule 13.5(c) states that "[n]o issue concerning a defect in the charging document shall be raised other than by a motion filed in accordance with Rule 16." In one case arising under these rules, the Arizona Supreme Court precluded a defendant from asserting on appeal a procedural error by which he was allowed to plead guilty before an amended information was filed. State v. Rogers, 113 Ariz. 6, 545 P.2d 930 (1976).
We find that the state's reliance on these rules and case law is misplaced. Rule 16.5 and Rule 13.5 apply only in situations where an information has already been filed, thereby conferring subject matter jurisdiction matter on the court. An attack on an already filed information is made on the basis of its insufficiency or on a technical defect in its contents, and is not based on the lack of the court's subject matter jurisdiction. Here, appellant claims that no information was ever filed, and he thus has challenged the subject matter jurisdiction of the court, rather than the sufficiency of or a defect in the information. Additionally, although Rule 13.1 provides that failure to file a timely information is grounds for dismissal of the prosecution, this rule also does not preclude a defendant from raising the defense of lack of subject matter jurisdiction matter at any other time in the proceedings.
The Arizona Constitution requires that "[n]o person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment." Ariz.Const. art. 2 § 30. The filing of an information is required to confer subject matter jurisdiction on the court in rendering a criminal conviction even under a guilty plea. State v. Smith, 66 Ariz. 376, 189 P.2d 205 (1948). Subject matter jurisdiction is never waived and may be raised at any time, including on appeal. State v. Municipal Court, 124 Ariz. 543, 606 P.2d 33 (App.1979); Bruce v. State, 126 Ariz. 271, 614 P.2d 813 (1980). Based on this established body of law, we hold that appellant did not waive his objection to the lack of an information by not moving for a dismissal in the trial court, nor did he waive his defense of lack of subject matter jurisdiction by pleading guilty.
Next, the state argues that this issue is not properly raised in an appeal from probation revocation because appellant could have raised this defense in a direct appeal from his conviction. The state relies on case law holding that a defendant may not constitutionally challenge his conviction for the first time in the context of an appeal from a revocation of his probation. See Herrera v. State, 121 Ariz. 12, 588 P.2d 305 (1978). In Herrera, however, the court inferred a knowing waiver of defendant's right to appeal from his failure to file a timely notice of appeal. Again, we distinguish the present case from those in which a defendant may voluntarily waive a right; here, the subject matter jurisdiction of the court is involved, and subject matter jurisdiction may not be waived by consent or acquiescence of the defendant. State v. Smith, 66 Ariz. at 379, 189 P.2d at 208.
Third, the state argues that even on the merits, the failure to file an information is not fatal to appellant's conviction because the purposes of the information were met--appellant was given adequate notice of the charges against him in order to enable him to prepare a defense, and the record in this case protects appellant against any future double...
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