State v. Cassius
| Decision Date | 08 November 1973 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 515 P.2d 903,21 Ariz.App. 78 |
| Parties | The STATE of Arizona, Appellee, v. Michael J. CASSIUS aka Carl Jackson, Appellant. 331. |
| Court | Arizona Court of Appeals |
This is an appeal from a judgment of conviction and sentences on one count of burglary, first degree, A.R.S. § 13--302, and one count of committing a felony while released on bail or on own recognizance on a separate felony charge, A.R.S. § 13--1580.
The peculiar facts of this case are: On October 17, 1972, appellant, Michael Jerome Cassius, was arrested and charged with burglary, Cause No. A--22479. The following day, he was released on his own recognizance.
On November 4, 1972, while released on his own recognizance on the first burglary charge, appellant was again arrested for burglary and was charged in Cause No. A--22303 on two counts: Count I, violation of A.R.S. § 13--302 (burglary, first degree) and Count II, violation of A.R.S. § 13--1580 ().
Proceedings were held on both burglary charges on January 4, 1973. At that time, Cause No. A--22479 was dismissed upon motion of the County Attorney. In Cause No. A--22303, appellant plead guilty to Count I, burglary, and Count II was submitted to the court on the basis of the Grand Jury transcript and stipulation of counsel that at the time of the second burglary appellant was released on his own recognizance in Cause No. A--22479. The court accepted appellant's guilty plea on Count I and found him guilty on Count II.
On January 22, 1973, appellant was sentenced to imprisonment for one and not more than two years on Count I and a consecutive term of not less than one nor more than three years was imposed for the Count II conviction. This appeal followed.
Appellant submits two questions for review:
1. Whether appellant's conviction for violation of A.R.S. § 13--1580 () constituted double jeopardy under the Fifth Amendment of the United States Constitution and Art. 2 § 10 A.R.S. of the Arizona Constitution?
2. Whether the sentence imposed pursuant to A.R.S. § 13--1580 violated the statutory proscription of A.R.S. § 13--1641 against double punishment for the same offense?
Before we dispose of the issues raised by appellant, we first consider the State's contention that the issues of double jeopardy and double punishment were not raised below, therefore, are not preserved for appeal. In response to this contention, appellant asserts that the issues are preserved by stipulation of counsel. He also argues that double jeopardy and double punishment affect substantial rights requiring this court on its own initiative to notice the defects. We agree with appellee that the double jeopardy issue is not preserved for appeal. However, we find the issue of double punishment properly submitted for review.
Generally, in Arizona the issue of double jeopardy may not be raised for the first time on appeal. State v. Veres, 7 Ariz.App. 117, 436 P.2d 629 (1968), cert. den., 393 U.S. 1014, 89 S.Ct. 613, 21 L.Ed.2d 559. The purported stipulation relied on by appellant is the following statement of the prosecutor:
'MR. HOWARD: The charge in count 2 is committing a felony while released on his own recognizance on another felony charge, Your Honor, and the public defender would like to reserve their right to examine that Statute on appeal, so are reluctant to enter a plea at this point, and would prefer to submit it to the Court on the stipulated facts in the Grand Jury transcript, and there are certain matters which I will ask the Court to take judicial notice of from the Court file.'
We find this insufficient to preserve the double jeopardy issue for review.
Appellant also asserts that he had no opportunity to raise this issue at the trial court level. We find no merit in this argument. Appellant, after having been found guilty on Count I, made to attempt to utilize Rule 177, Rules of Criminal Procedure, 17 A.R.S. 1 as to Count II on the grounds of prior conviction or double jeopardy. Appellant's failure to raise the issue of double jeopardy below precludes appellate consideration of such issue.
As to the issue of double punishment, however, it may be raised for the first time on appeal. State v. Mills, 96 Ariz. 377, 396 P.2d 5 (1964). We therefore turn our attention to appellant's contention that the sentences imposed on Count I and Count II constituted double punishment in violation of A.R.S. § 13--1641, which provides:
Prior to the Supreme Court decisions in State v. Mitchell, 106 Ariz. 492, 478 P.2d 517 (1970), and State v. Tinghitella, 108 Ariz. 1, 491 P.2d 834 (1971), there appeared to be some confusion in applying A.R.S. § 13--1641. However, as formulated in Mitchell, supra, and adopted in Tinghitella, supra, an 'identical elements' test is the standard, requiring elimination of the elements in one charge and a determination of whether the facts left support the other charge. See also, State v. Horton, 108 Ariz. 16, 492 P.2d 395 (1972); State v. George, 108 Ariz. 5, 491 P.2d 838 (1971), and State v. Bartky, 16 Ariz.App. 421, 493 P.2d 1226 (1972).
In spite of the seeming simplicity of this statute and the test, judicial interpretation and application to a given set of facts has proven to be a complex task. This case is no exception.
Our review of the myriad of cases dealing with the application of A.R.S. § 13--1641 sheds no light on the problem Sub judice. We find no case with a factual posture remotely similar to this case. However, there is one common denominator--the purpose of the subject statute is to protect an offender against double punishment for a Single act which violates more than one statute. See, Mitchell, supra; State v. Andrews, 106 Ariz. 372, 476 P.2d 673 (1970); State v. Ballez, 102 Ariz. 174, 427 P.2d 125 (1967), and State v. Hutton, 87 Ariz. 176, 349 P.2d 187 (1960).
As previously noted, appellant, in Cause No. A--22303, was found guilty and sentenced on two counts: Count I, violation of A.R.S. § 13--302, and Count II, violation of A.R.S. § 13--1580. The pertinent provisions of these statutes are:
' § 13--302. Definition and degrees of burglary; punishment
A. A person entering a building, dwelling house, office, room, apartment, tenement, shop, warehouse, store . . . with intent to commit grand or petty theft, or any felony . . . is guilty of burglary.
B. Burglary committed in the nighttime is burglary of the first degree, punishable by imprisonment in the state prison for not less than one nor more than fifteen years.'
' § 13--1580. Committing felony while on bail on felony charge; penalty
A person who is convicted of committing any felony offense, whether federal or state, which felony offense is committed while such person is released on bail or his own recognizance on a separate felony charge is guilty of the offense of committing a felony while released on bail or his own recognizance and upon conviction of such crime shall be punished by imprisonment in the state prison for not more than five years. Such penalty shall be in addition to and shall be served consecutively to any penalty imposed for the offense committed while released on bail or on his own recognizance.'
The elements necessary to prove burglary, first degree, are: (1) and entry, (2) with intent to commit a felony, and (3) commission in the nighttime. A violation of A.R.S. § 13--1580 requires (1) a conviction of committing any felony, (2) which is committed while a person is released on bail or his own recognizance on a separate felony charge.
Appellant's only Act was the burglary of November 4, 1972, which was committed while he was released on his own recognizance on a separate felony charge. For this Single act, he has been convicted and sentenced for two felony offenses. If one or all of the elements of burglary are eliminated, what facts are left to support the charge under A.R.S. § 13--1580? There are none. We find no other Act by appellant, hence no support for a charge under A.R.S. § 13--1580. The factual basis for conviction under either statute is the same Act on the part of appellant.
The State, however, argues that the elements of A.R.S. § 13--1580 are different, i.e., (1) conviction of a felony and (2) such felony having been committed during a designated period. We find such argument specious. The 'conviction' element is a Judicial act, not appellant's, leaving only the burglary as the act of appellant. To adopt the State's construction would defeat the very purpose of A.R.S. § 13--1641 and allow the prosecution to accomplish indirectly that which cannot be done directly.
Application of the 'identical elements' test enunciated by our Supreme Court would mandate the conclusion that the statutory prescription of A.R.S. § 13--1641 has been violated. However, to so hold would render A.R.S. § 13--1580 completely inoperative. We must presume that the legislature did not intend to do a futile act in enacting A.R.S. § 13--1580. Campbell v. Superior Court, 105 Ariz. 252, 462 P.2d 801 (1969). We also assume that the legislature was aware of the existence of A.R.S. § 13--1641 and therefore that A.R.S. §§...
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