State v. DeLuna, 2679
| Decision Date | 15 April 1974 |
| Docket Number | No. 2679,2679 |
| Citation | 110 Ariz. 497,520 P.2d 1121 |
| Parties | The STATE of Arizona, Appellee, v. Eric DeLUNA, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., by Thomas A. Jacobs, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, by Paul J. Prato, Former Deputy Public Defender, Phoenix, for appellant.
This is an appeal from a conviction and judgment of guilt to the crime of theft from the person, §§ 13--661, 13--662, and 13--663, as amended 1968, A.R.S., with a sentence thereon of not less than ten nor more than fifteen years in the Arizona State Prison.
We must consider two questions on appeal:
1. Did the defendant knowingly and intelligently waive assistance of counsel?
2. Did the trial court err in denying the motion for a continuance after the defendant changed his mind and requested appointment of counsel?
The facts necessary for a determination of this matter on appeal are as follows. The defendant was arrested for stealing a wallet from the person of another. Preliminary hearing was held at which time he was represented by a deputy public defender and he was held to answer. At the arraignment in the Superior Court, the defendant refused the assistance of the public defender and demanded the appointment of private counsel. The demand for private counsel was refused and defendant then notified the court that he would act as his own counsel and entered a plea of not guilty.
On the morning of the trial, the defendant was again advised of his right to have the public defender represent him, but he again refused the services of the public defender and renewed his request for the appointment of counsel other than the public defender. This request was denied and the case proceeded to trial.
After the lunch recess, the defendant advised the judge that he had made a mistake, and requested that the court appoint the public defender to handle the case. A deputy public defender was present and he advised the court that he would represent the defendant, but that he would need an overnight continuance in order to prepare for trial. The trial judge denied the request for the continuance and allowed the public defender to remain and advise the defendant for the remainder of the trial. The jury returned a verdict of guilty from which defendant appeals.
Defendant on appeal contends that the trial court failed to 'determine on the record whether appellant's waiver of counsel was competent and intelligent.' At the arraignment before Judge Harold D. Martin the following transpired:
And on the day of the trial before Judge Hardy:
'THE COURT: Let the record show the presence of the defendant and the prosecutor in chambers.
Mr. DeLuna, I understand that you don't want a lawyer to represent you, is that correct?
'DEFENDANT DE LUNA: I don't want my--I do want an attorney but I don't--I would not want to have the Public Defender. Mr. Trombino, the prosecutor here, knows this very well the last time I was here. I--I had a cause not to have one and I--the judge 'THE COURT: Is your name Luna?
last time I came over that I would take an appointed attorney. He said he couldn't give me what I wanted. I--he said I would have to take a Public Defender or would have to fight the case by myself, so then I said I would present it myself. The deal--I know that it's not my job to force you to give me what I want but I know it's a violation of the constitution that a man must have his rights and I think that I've been--I think my rights have been violated by when they refused to give me an appointed attorney by the court. I think my constitution--it's just like Mr.--it's just like we been eating--you want me to eat something that I don't want to eat and you force me to eat it. The court is forcing me to take a Public Defender which I don't have no--no trust in. I don't have no trust with 'em because the only thing they do for me is just to make a deal. Like yesterday they went up with a one to ten if I would plead to theft to a person or they would put two prior convictions they have on me, which prior conviction is nothing but a double jeopardy because I know this, I already paid for that time. I'm not going to pay twice for something I already paid for in prison. I spent eight and a half years of my life in prison for this crime.
What I want to be sure of is that you did understand you had the right to have counsel appointed. As a matter of fact, I could have a lawyer sitting in the courtroom; he would be a Public Defender, not representing you, but to advise you on any legal matters that came up. Do you want me to do that?
And:
We have stated concerning the duty of the trial judge when a defendant desires to waive counsel in a criminal trial:
"* * * This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.' (Footnote omitted) Under proper circumstances this may require the court to appoint counsel to conduct the defense despite the defendant's desire to defend for himself. In short, the defendant must not only wish to represent himself, he must also be competent to waive his right to counsel. Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed. 429. In the same breath, however, once it is determined that a competent waiver has been made it is not within the province of the trial judge to thrust counsel upon the defendant. * * *
* * *
* * *
...
To continue reading
Request your trial
-
State v. McLemore
...by the accused.Westbrook, 384 U.S. at 150, 86 S.Ct. 1320 (quoting Johnson, 304 U.S. at 465, 58 S.Ct. 1019);State v. DeLuna, 110 Ariz. 497, 500, 520 P.2d 1121, 1124 (1974); see alsoAriz. R.Crim. P. 6.1(c) cmt. (“(c) provides the standards for waiver of the rights to counsel.... It adopts the......
-
State v. Cornell
...trial, but the court need not stop the trial for the convenience of the defendant each time he changes his mind. State v. DeLuna, 110 Ariz. 497, 502, 520 P.2d 1121, 1126 (1974). Other jurisdictions follow the same rule. "[I]t is uniformly held that all motions [for pro per status] made afte......
-
Moore v. State, 28, September Term, 2004.
...is but a right to effective legal representation; it is not a right to representation by any particular attorney"); State v. DeLuna, 110 Ariz. 497, 520 P.2d 1121, 1124 (1974); State v. Harper, 381 So.2d 468, 470 (La. 1980), the fact of indigency is not dispositive; "[t]he Sixth Amendment gu......
-
Irvin v. State
...Irvin and his awareness of the pitfalls and disadvantages of representing himself and the possible consequences. See State v. DeLuna, 110 Ariz. 497, 520 P.2d 1121 (1974). The Right to a From the time that this Court first considered the matter in Robinson v. State, 18 Wyo. 216, 106 P. 24 (1......