State v. Federico

• Decision Date: 11 December 1968
• Docket Number: No. 1825,1825
• Citation: 104 Ariz. 49,448 P.2d 399
• Parties: The STATE of Arizona, Appellant, v. Ruben FEDERICO, Appellee.
• Court: Arizona Supreme Court

Page 399

448 P.2d 399

104 Ariz. 49

The STATE of Arizona, Appellant, v. Ruben FEDERICO, Appellee.

No. 1825.

Supreme Court of Arizona, In Banc.

Dec. 11, 1968.

Rehearing Denied Jan. 7, 1969.

Gary K. Nelson, Atty. Gen., Darrell F. Smith, then Atty. Gen., Phoenix, William J. Schafer, III, Pima County Atty., by Horton C. Weiss, Deputy County Atty., Pima County, Tucson, for appellant.

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

McFARLAND, Chief Justice:

After a trial in superior court, a jury found defendant-appellee guilty of rape, and he was given a sentence of eight to ten years in prison. We affirmed the conviction, and our mandate was received by the superior court on September 23, 1966. Defendant unsuccessfully applied to the U.S. Supreme Court for certiorari, and remained free on bond until July 14, 1967, at which time the superior court held a hearing and ordered that the 'imposition of sentence be suspended for a period of five years, and the defendant be placed on probation * * *' Defendant's bond was exonerated, and he is still at large. From the above order the State has appealed.

The question before us is not whether defendant is deserving of probation, but rather whether the superior court had jurisdiction to modify its judgment of imprisonment by granting probation after an affirmance by this Court.

Defendant contends that the federal rule is a trial court may grant probation to a defendant even after affirmance of his conviction on appeal. To support this proposition, he cites United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309. That case, however, is based upon a federal statute which specifically permits a trial court to suspend Either the imposition or the execution of a sentence, while in Arizona our statute allows the suspension of only the imposition of a sentence. A.R.S. § 13--1657, subsec. A, par. 1.

Even in the absence of the distinction, defendant is in error, for the federal rule was clearly stated as early as 1895 in Re Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414, where the court said:

'When a case has been once decided by the court on appeal and remanded to the circuit court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The circuit court is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. That court cannot vary it or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded.'

That case was cited with approval in United States v. Howe, 280 F. 815, 23 A.L.R. 531 (2d Cir. 1922), where the following appears:

'* * * the judgment of the appellate court cannot be modified or vacated by the lower court on the remand * * * nor can the lower court alter or modify the judgment originally entered by it.

'The above statement of the law is alike applicable to civil and criminal cases * * *.

'If a judgment of conviction, after it has been affirmed by this court, and a mandate sent down directing it to be carried out, can be set aside by the district court, and a new and different sentence imposed * * * the court could reserve to itself the power to alter any judgment set down, and it could continue the process indefinitely and no judgment could be final. When the lower court proceeds contrary to the mandate of this court, it interferes with this court's jurisdiction * * *.' (Cert. denied, 259 U.S. 587, 42 S.Ct. 590, 66 L.Ed. 1077.)

Howe, supra, was cited with approval in United States v. Tuffanelli, 138 F.2d 981 (7th Cir. 1943), in which the court said:

'So far as we are advised, the trial court, after affirmance by this court, is in the same position as this court after affirmance by the Supreme Court.'

Defendant cites several California cases, including People v. Causey, 230 Cal.App.2d 576, 41 Cal.Rptr. 116. While Causey lends authority to defendant's proposition, it must be noted that there is a lack of uniformity in the California decisions, and there have been legislative changes which have caused the California courts to alter their approach to the problem. See Beggs v. Superior Court, etc., 179 Cal. 130, 175 P. 642; People v. Maggio, 96 Cal.App. 409, 274 P. 611; Lloyd v. Superior Court etc., 208 Cal. 622, 283 P. 931; and People v. Rittger, 55 Cal.2d 849, 13 Cal.Rptr. 406, 362 P.2d 38.

However, we need not look outside our own cases to confirm the fact that we have, from the earliest days, followed an unbroken resolve that our mandates shall terminate the cases in which they are issued. We are reviewing them at this time so that all doubts about the law on the question will be completely resolved. This Court spoke on this principle even before California.

As early as 1921, in State v. Superior Court etc., 22 Ariz. 452, 197 P. 537, we held that a trial court could not issue a writ of habeas corpus to review a judgment of this Court, saying:

'The affirmance of a judgment of conviction by this court must * * * be regarded by the judges of the * * * superior courts as a final determination * * *. Interference * * * constitutes a wrongful infringement of the appellate jurisdiction * * * and tends to bring the courts of the state into disrepute.'

In Sam v. State, 33 Ariz. 421, 265 P. 622, we considered the problem in detail and said:

'Under the common law, trial courts had the inherent power to vacate, modify, or set aside judgments during the term in which they were rendered, but had no such power after the term expired * * *. When our system of courts was changed, upon the adoption of our Constitution, terms of court no longer existed. * * * Legislation * * * was adopted for this purpose. By its language (now R.C.P. 60(c)) the time in which a court may act is fixed at six months.

'* * * we see no reason in logic or justice why the same rule should not apply in a criminal proceeding.'

We then went on to say, in that opinion, that not only the expiration of six months, but also the perfection of an appeal, cut off the trial court's right to vacate or modify its judgments, stating:

'* * * when the Supreme Court has taken jurisdiction of a case on appeal no inferior tribunal has any jurisdiction thereof, except to perform the necessary acts in furtherance of the appeal * * *.'

In Standard Accident Insurance Co. v. Allen, 38 Ariz. 173, 298 P. 406, we said:

'Right or wrong, the mandate of this court was the measure of power in the trial court. This seems to be the universal rule.'

In State v. Griffith, 54 Ariz. 436, 96 P.2d 752, we said:

'A judgment of this court imports absolute verity. It must be regarded as free from all error. It is final and conclusive upon the superior courts and the judges thereof, and they may not question such judgment, neither are they permitted to hamper or impede the due and timely execution of such judgment. * * *

'The rule is, when a judgment is affirmed by this court, all questions raised by the assignments of error and all questions that might have been so raised are to be regarded as finally adjudicated against the appellant. * * *

'It is obvious that any other view would tend to bring about a deadly conflict between the jurisdiction and power of this court and the jurisdiction and power of the superior court or the judge thereof, and would necessarily result in hampering and impeding the administration of the law and bring the law into disrepute and disfavor and deprive it of the respect and reverence of the people of the...