State v. Burrell

• Court: Arizona Supreme Court
• Writing for the Court: BERNSTEIN; UDALL
• Citation: State v. Burrell, 96 Ariz. 233, 393 P.2d 921 (Ariz. 1964)
• Decision Date: 09 July 1964
• Docket Number: No. 1437,1437
• Parties: STATE of Arizona, Appellee, v. John DeWayne BURRELL, Appellant.

Page 921

393 P.2d 921

96 Ariz. 233

STATE of Arizona, Appellee, v. John DeWayne BURRELL, Appellant.

No. 1437.

Supreme Court of Arizona, In Banc.

July 9, 1964.

Robert W. Pickrell, Atty. Gen. and E. D. McBryde, Pinal County Atty., for appellee.

Thomas A. McCarville, Eloy, for appellant.

BERNSTEIN, Justice.

Appellant was found guilty after a trial by jury in Pinal County Superior Court of the felonies of escape from the State Prison and robbery (three counts). The jury acquitted appellant on kidnapping counts of the information, and two grand theft counts had been dismissed by the trial court. Appellant was sentenced to four indeterminate consecutive terms in the State Prison, to begin at the expiration of the sentence he was serving at the time of his escape. Counsel was appointed to represent him at the trial, and this counsel was furnished with a transcript of the record at the preliminary hearing. We have before us the transcript of the trial proceedings, in two volumes, and the complete record.

Appellant filed his notice of appeal in propria persona, and counsel, other than the counsel who represented him at the trial, was appointed pursuant to A.R.S. § 13-161 to handle this appeal. Counsel advised this court by written comunication that he has searched the record and has been unable to find grounds on which an appeal could be based. This court ordered the appeal submitted. Having examined the record, transcript and the instructions and ruling of the trial court, we have found no reversible error. Under A.R.S. § 13-1715 the court must search the record for fundamental error in all criminal appeals. Hockett v. State, 21 Ariz. 205, 186 P. 586 (1920).

The procedure followed in the case, and generally followed in like cases by this court, is in accord with the best practice as described by the United States Supreme Court in Hardy v. United States, 375 U.S. 277, 281, 84 S.Ct. 424, 427, 11 L.Ed.2d 331, 335 (Jan. 6, 1964). In that case the court said:

'The duty of counsel on appeal, as we noted in Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060, is not to serve as amicus to the Court of Appeals, but as advocate for the appellant:

"Normally, allowance of an appeal should not be denied until an indigent has had adequate representation by counsel. Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593. In this case, it appears that the two attorneys appointed by the Court of Appeals, performed essentially the role of amici curiae. But...