State v. Falco, 1
| Citation | 783 P.2d 258,162 Ariz. 319 |
| Decision Date | 27 June 1989 |
| Docket Number | No. 1,CA-CR,1 |
| Parties | STATE of Arizona, Appellee, v. Lorenzo Bruno FALCO, Appellant. 88-1171. |
| Court | Court of Appeals of Arizona |
The issue in this appeal is whether Rule 24.3, Arizona Rules of Criminal Procedure, authorizes the trial court, upon discovery that it has erroneously ordered intensive probation for a defendant who is not eligible therefor, to vacate the order of probation and impose a sentence of imprisonment. 1
Defendant Falco was charged with count I--second degree burglary, a class 3 felony; and count II--theft, a class 6 felony. He entered into an agreement with the state, agreeing to plead guilty to count I. The agreement also provided that count II, as well as another pending superior court action (cause number CR-88-00931), would be dismissed and, further, that the state would file no allegation concerning defendant's prior felony convictions. The agreement also noted that probation was available for the crime to which defendant would plead guilty, but it contained no stipulation as to the sentence to be imposed.
The trial court deferred acceptance of defendant's plea until sentencing and ordered the preparation of a presentence report. The author of the report recommended that defendant be placed on intensive probation, characterizing that disposition, in view of defendant's prior record, as the only available mechanism, short of prison, to modify defendant's behavior. He observed that if no such disposition were available, "defendant would definitely appear to be prison-bound." On May 2, 1988, at the time set for sentencing, the trial court accepted defendant's plea and followed the recommendation in the presentence report, placing defendant on intensive probation for a period of 4 years. Defendant did not appeal.
Several weeks later, while defendant was serving a 45-day jail term that had been ordered as a condition of probation, his probation officer contacted the trial judge and informed him that defendant's conviction for a class 3 felony rendered him ineligible for intensive probation. In fact, at the time of defendant's crime, A.R.S. § 12-292(A) authorized that disposition only for defendants convicted of class 4, 5, or 6 felonies. See former A.R.S. § 12-292(A), Laws 1986, ch. 208, § 1. 2 Accordingly, the trial court undertook to correct its error pursuant to Rule 24.3.
On May 26, 1988, a new sentencing hearing was held, at which defendant urged the trial court to place him on regular probation. Based upon defendant's criminal record, however, which included convictions for numerous misdemeanors, three felonies, three grants of probation (the latest of which had been revoked), and two prison terms, the trial court was unwilling to do this. Defendant was sentenced, over his objection, to the statutory minimum sentence for a class 3 felony--3.75 years in prison.
On appeal, defendant raises no challenge to the validity of his conviction. Furthermore, he concedes that the trial court was without statutory authority to place him on intensive probation. Nevertheless, he contends that because he was eligible for regular probation, the original order amounted to a "lawful sentence, validly imposed." He acknowledges that the trial court retained jurisdiction to modify the terms of probation, but argues that, absent a violation of those terms, the court was without authority to vacate the grant of probation entirely. We disagree.
Rule 24.3 provides:
The court may correct any unlawful sentence or one imposed in an unlawful manner within 60 days of the entry of judgment and sentence but before the defendant's appeal, if any, is filed.
An unlawful sentence is one that is not within the statutory provisions. State v. Suniga, 145 Ariz. 389, 393, 701 P.2d 1197, 2001 (App.1985). Moreover, although an order imposing probation is not ordinarily a sentence, see State v. Muldoon, 159 Ariz. 295, 298, 767 P.2d 16, 19 (1988), when used in the context of Rule 26 and, by inference, Rule 24.3, the term "sentence" does include probation. See Comment to Rule 26.1.
It is undisputed that the imposition of intensive probation in the instant case fell outside the provisions of former A.R.S. § 12-292(A). Furthermore, neither the passage of 60 days nor the filing of a notice of appeal had divested the trial court of jurisdiction to modify an unlawful sentence.
Nevertheless, defendant maintains that, because his crime was one for which regular probation was available, the trial court's initial disposition was unlawful only insofar as it prescribed the higher level of structure and closer supervision associated with intensive probation. He equates this defect to the imposition of an unlawful condition of probation, the remedy for which would be to strike only the invalid condition, leaving the grant of probation intact. See, e.g., State v. Camargo, 112 Ariz. 50, 537 P.2d 920 (1975); State v. Reese, 124 Ariz. 212, 603 P.2d 104 (App.1979).
Defendant suggests that this court's recent opinion in State v. Perkins, 159 Ariz. 381, 767 P.2d 729 (App.1988), lends support to his argument. In Perkins, we held that the trial court was not required to advise the defendant, prior to accepting his guilty plea, that he might be placed on intensive probation, the terms of which might include combined periods of incarceration and restriction to his residence that would exceed the maximum prison sentence for his offense. We stated that "intensive probation is merely a 'highly structured and closely supervised' form of probation" and therefore "a...
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...he was placed upon probation," meaning his appeal was untimely. See id. at 446–47, 549 P.2d at 226–27; see also State v. Falco , 162 Ariz. 319, 321, 783 P.2d 258, 260 (App. 1989) (citing Rule 26.1 comment and concluding that "although an order imposing probation is not ordinarily a sentence......