State v. Espinoza

• Decision Date: 29 September 1976
• Docket Number: No. 3521,3521
• Citation: State v. Espinoza, 555 P.2d 318, 113 Ariz. 360 (Ariz. 1976)
• Parties: STATE of Arizona, Appellee, v. Paul O. ESPINOZA, Appellant.
• Court: Arizona Supreme Court

Page 318

555 P.2d 318

113 Ariz. 360

STATE of Arizona, Appellee, v.Paul O. ESPINOZA, Appellant.

No. 3521.

Supreme Court of Arizona, In Banc.

Sept. 29, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, and Diane M. DeBrosse, Asst. Attys.Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Paul J. Prato, Deputy Public Defender, Phoenix, for appellant.

HAYS, Justice.

On October 24, 1973, the appellant, Paul O. Espinoza, entered a plea of guilty to the charge of sale of heroin.The imposition of the sentence was suspended and appellant was placed on probation for a period of five years to date from November 21, 1973.On two occasions thereafter, on May 8, 1974 and again on October 23, 1975, the court found that the appellant had violated the terms of his probation and in both cases extended the probation.

On March 15, 1976, the appellant's probation officer filed a petition to revoke probation alleging that:

'On or about 3--9--76, the defendant admitted to this officer that he was 'dirty' for heroin, without a prescription, all in violation of TERM #16, of his probation.

'The defendant failed to report in person as directed by his probation officer on 12--23--75, for the months of January and February and up to March 11, 1976, all in violation of TERM #2, of his probation.'

Appellant's initial appearance was held on March 19, 1976, at which he was advised that anything he said could be used against him.On March 30, 1976, revocation arraignment was held wherein the court informed the appellant of the charges specified in the petition.Appellant denied the allegations and the matter was set for hearing April 6, 1976 and subsequently continued until April 14, 1976.

At the April 14, 1976 violation hearing, during the course of the testimony, certain evidence was adduced which had a bearing on whether the appellant had violated two additional terms not enumerated in the petition.Those additional terms, numbers 6 and 12, upon which evidence was heard, required the probationer to submit to urinalysis tests when directed by his probation officer and to participate in a drug rehabilitation program.The testimony which directed attention to the violations of those terms was admitted without objection.

At the conclusion of the hearing the court determined that the appellant had violated not only the terms of which the probationer was alleged to have violated in the petition to revoke, but also the two terms which were not specified in the petition but were raised at the revocation hearing, I.e., terms 6 and 12.

On April 23, 1976the court revoked appellant's probation and sentenced him to not less than five years nor more than life in the state penitentiary to commence January 17, 1976.This appeal followed.

Appellant first contends that his probation was improperly revoked based on the fact that he was informed neither in the petition to revoke nor at the revocation arraignment of the alleged violations of terms 2, 6 and 12 of his probation.Rule 27.7(a)(2),Arizona Rules of Criminal Procedure(1975), requires that the court, at the revocation arraignment 'inform the probationer of each alleged violation of probation and the probationer shall admit or deny each such allegation.'Moreover, it is a basic requirement of due process that a probationer be given written notice of the alleged violations prior to the probation revocation hearing.Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656(1973);State v. Settle, 20 Ariz.App. 283, 512 P.2d 46(1973).

It is clear from the record that appellant was, in fact, given adequate notice of the allegation that he was in violation of term number 2 which required him to report periodically to his probation officer.It is equally clear that he was not apprised of the alleged violations of terms 6 and 12.Neither was mentioned at either the revocation arraignment or in the petition to revoke.

However, the testimony which shed light on the additional violations and upon which the judge based her conclusions was never objected to by appellant's counsel.Nor did counsel object when the judge made her findings on the two added violations.It is clear that where no objection was made in the lower court either to the...