State v. Cuzick

• Decision Date: 26 May 1967
• Docket Number: No. 1,CA-CR,1
• Citation: State v. Cuzick, 428 P.2d 443, 5 Ariz.App. 498 (Ariz. App. 1967)
• Parties: The STATE of Arizona, Appellee, v. Jack CUZICK, Appellant. 106.
• Court: Arizona Court of Appeals

Page 443

428 P.2d 443

5 Ariz.App. 498

The STATE of Arizona, Appellee, v.Jack CUZICK, Appellant.

No. 1 CA-CR 106.

Court of Appeals of Arizona.

May 26, 1967.

Review Denied Sept. 21, 1967.

Darrell F. Smith, Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee.

Royal & Carlson, by H. Wesley Carlson, Tucson, for appellant.

STEVENS, Judge.

This legal merry-go-round commenced with the arrest of the defendant inside a business establishment in the morning hours of 10 February 1963, at a time when it was still dark outside of the establishment.The defendant entered a plea of guilty to the offense of burglary in the second degree on 13 May 1966.He was sentenced on 20 May 1966.Thereafter post-judgment motions were filed and, after hearings thereon, they were denied.This appeal followed.

The basic contentions of the defendant are an absence of jurisdiction in the Superior Court; a lack of a speedy trial; error in denying the motion for leave to withdraw his plea of guilty; and inadequate representation by the attorney who represented him at the time of the entry of the plea of guilty.

In relation to the attorney-representation of the defendant, it is interesting to note that all of the attorneys were attorneys of his own selection and that the attorney who represents him in relation to this appeal is his seventh attorney in connection with these charges.The attorneys will be designated by number in the numerical sequence of their appearance in the record.Attorneys 1 and 2 were partners.Pleadings were filed bearing the names of attorneys 4 and 5 in such manner as to indicate that they were partners.

JURISDICTION OF THE COURT OF APPEALS

We consider the question of our jurisdiction on our own motion.This Court does not have jurisdiction to consider an appeal in relation to an offense 'punishable by death or life imprisonment'.A.R.S. Sections 12--120.21and13--1711;State v. Mileham, 1 Ariz.App. 67, 399 P.2d 688(1965).The complaint which was filed in the Justice Court, being the basis of the preliminary hearing, charged the offense of burglary by mechanical means.A.R.S. Section 13--303.One guilty of this offense shall be imprisoned 'for not less than five years' which means 'not less than five years and not more than life'.A.R.S. Section 13--1644.In relation to this offense, this Court does not have appellate jurisdiction.The defendant was bound over to the Superior Court on the offense of burglary in the first degree.A.R.S. Section 13--302.An information charging this offense was filed in the Superior Court.The maximum punishment which can be imposed for burglary in the first degree is fifteen years and this Court has appellate jurisdiction.After the filing of the information, and over the objection of the defendant and his co-defendant, the information was amended, the amended information charging burglary in the first degree with a statement of prior conviction.Pursuant to Arizona's Habitual Criminal Section, A.R.S. Section 13--1649, subsec.A, par. 1, the defendant was thereby charged so that he was 'punishable' by imprisonment 'for not less than ten years' that is to say, for not less than ten years and not more than life, a matter beyond the jurisdiction of this Court.There was a further amendment to the information at the time of the defendant's change of plea.As so amended, he was charged with the offense of burglary in the second degree without a statement of prior conviction.This offense is punishable by a maximum of five years.A.R.S. Section 13--302.As so charged, a conviction is within the jurisdiction of the Court of Appeals.

In an appropriate case, this Court has the power to reverse, to direct that the plea of guilty be set aside and to direct that a plea of not guilty be entered.The question is then presented: In the event that the decision of this Court in this cause should be to direct the setting aside of the plea of guilty and the entry of a plea of not guilty, does the reduced charge of burglary in the second degree stand, or may the trial court permit the filing of an amended information charging burglary in the first degree with a prior conviction?If the latter, then this Court would be without jurisdiction.We hold that a court exercising appellate jurisdiction would not have the authority to authorize the refiling of the information charging burglary in the first degree with a prior conviction and that the changed plea could only be addressed to the charge of burglary in the second degree.We hold that we have jurisdiction in relation to this appeal.

JURISDICTION OF THE SUPERIOR COURT

Defendant urges an absence of jurisdiction in the Superior Court in that he was not bound over to the Superior Court for the identical offense charged in the complaint, which was the basis of the preliminary hearing.The defendant urges Rule 32,Rules of Criminal Procedure, 17 A.R.S.In part, this rule provides:

'A.If, during the preliminary examination * * * it appears to the magistrate conducting the examination that * * * although not guilty of the offense specified in the warrant he is guilty of some other offense, the magistrate shall forthwith direct the filing of a new complaint and the issuance of a new warrant of arrest and proceed with the examination thereon.'

The statutory definition of burglary by mechanical means is set forth in A.R.S. Section 13--303.In part, this section provides:

'A person who, with felonious intent, enters a building * * * and * * * by the use of * * * force, or by use of any mechanical device or contrivance whatsoever, opens or attempts to open a vault, safe or other secure place designed for safe keeping of money or other valuable property * * *.'

Burglary is defined by A.R.S. Section 13--302 and, in part, that section provides:

'A.A person entering a building * * * with intent to commit grand or petty theft, or any felony * * *'

There is an excellent argument in favor of holding that the offense of burglary is lesser and included within the offense of burglary by mechanical means.We are not called upon to decide this question and rest our opinion in relation to this phase of the case on other matters.

A person charged with a felony may waive preliminary examination.Article 2, Section 30 Arizona Constitution, A.R.S.He may also waive technical variances.

The defendantJack Cuzick and his brotherWilliam F. Cuzick(State v. Cuzick, 97 Ariz. 130, 397 P.2d 629(1964)), were apprehended in a building in the nighttime.A safe within the building had been moved and damaged.They were jointly charged and each had his separate attorney at the preliminary.The attorney for the brother took the lead in the questioning and the testimony did not disclose a conflict of interest between the two defendants.The attorney for the defendant, being attorney number 1, concurred in the positions urged by the brother's attorney.At the conclusion of the hearing, the magistrate was persuaded that the offense of burglary by mechanical means had not been sufficiently established.The brother's attorney addressed the magistrate:

'I appreciate that the Court could in (sic)the state of the evidence hold them to answer on the charge of the burglary.* * * We ask, therefore, that the Court, insofar as the charge before the Court is concerned, that the charge be dismissed; and, in the alternative that the Court in its discretion has the power to hold them to answer for plain burglary.

'* * * And in all fairness I say to the Court that certainly the Court could find, I wouldn't argue probable cause if there was probable cause to show a burglary, your Honor.But not the burglary charged.I appreciate that your Honor in view of the evidence may hold them to answer for whatever your Honor may say. * * *'

Upon the conclusion of the preliminary hearing, both defendants were bound over on the charge of burglary in the first degree and they were both released on bond.Both defendants were charged by an information filed on 10 April 1963.The defendants appeared in the Superior Court on 22 April 1963 and were arraigned.The defendant was represented by attorney number 2.The minutes of the arraignment disclose that each of the defendants entered a plea of not guilty and waived the sixty day period.The case was set for 14 June 1963, a date beyond the sixty day period.Both of the defendants were allowed ten days in which to file motions.No motions were filed attacking the sufficiency of the preliminary hearing until 6 June 1966 after the defendant had plead guilty and had been sentenced.Attacks upon the sufficiency of a preliminary hearing must be timely made.The 6 June 1966 motion is based upon Criminal Rule 169, subd. A(1)(h).The defendant urging:

'That the court trying the action has no jurisdiction of the offense charged or of the person of the defendant.'

We are unable to sustain the defendant's position wherein he urges a lack of jurisdiction in the Superior Court.

SPEEDY TRIAL

Citations of authority are not required to sustain the legal position that a defendant is entitled to a speedy trial.Criminal Rule 236 states, in part:

'When a person has been held to answer for an offense * * * is not brought to trial for the offense within sixty days after * * * the information filed, the prosecution shall be dismissed upon the application of such person * * * unless good cause to the contrary is shown by affidavit, or unless the action has not proceeded to trial because of the defendant's consent or by his action.'

Prior to the 14 June 1963 trial date, the County Attorney moved for leave to file an amended information retaining the charge of burglary in the first degree and adding thereto a statement or allegation of prior conviction as to each of the defendants.The motion was set for hearing for 20 June 1963 and the case was re-set for trial for 15 August 1963.The record does not reflect any objections to the new trial date.At the time of the...