State v. Fendler

• Decision Date: 11 September 1980
• Docket Number: CA-CR,No. 1,1
• Citation: State v. Fendler, 622 P.2d 17, 127 Ariz. 458 (Ariz. App. 1980)
• Parties: STATE of Arizona, Appellant, v. Robert H. FENDLER and James R. Holman, Appellees. 3400.
• Court: Arizona Court of Appeals

Page 17

622 P.2d 17

127 Ariz. 458

STATE of Arizona, Appellant, v. Robert H. FENDLER and James R. Holman, Appellees.

No. 1 CA-CR 3400.

Court of Appeals of Arizona, Division 1, Department A.

Sept. 11, 1980.

Rehearing Denied Nov. 19, 1980.

Robert K. Corbin, Atty. Gen., by William J. Schafer, III, Chief Counsel, Criminal Division, Philip J. MacDonnell, Director, Sp. Prosecutions Division, Michael C. Cudahy, Asst. Atty. Gen., Samuel P. Goddard, III, Former Asst. Atty. Gen., Phoenix, for appellant.

Southern & Mulhall by E. Reid Southern, Phoenix, and Thomas E. Horn, San Francisco, Cal., for Fendler.

Robert L. Storrs, Phoenix, for Holman.

OPINION

WREN, Vice Chief Judge.

This is an appeal by the State of Arizona from a post-verdict order of the Superior Court dismissing count one of the indictment on the basis that it charged multiple conspiracies in a single count (duplicity).

On March 7, 1977, Robert H. Fendler and James R. Holman were charged in a seventeen count indictment with criminal conduct in connection with the operation of several financial institutions headquartered in Phoenix, Arizona. Prior to trial, Fendler moved the trial court to dismiss count one on the basis of duplicity. Rule 13.3, Arizona Rules of Criminal Procedure, 17 A.R.S. Holman later joined in the motion. However, on October 14, 1977, the motion was denied. Ultimately, charges of conspiracy, grand theft, and false book entry against both defendants were submitted to the jury for consideration. An additional charge of failure to file a state corporate income tax return was also submitted against Fendler.

On February 27, 1978, the jury found Fendler guilty on the conspiracy, false book entry, and failure to file counts, but stated they were deadlocked on the grand theft count. The jury acquitted Holman on the grand theft and false book entry counts, but indicated they were deadlocked on the conspiracy count. A mistrial was declared on the grand theft count as to Fendler and the conspiracy count as to Holman. Both defendants timely filed motions for judgment of acquittal pursuant to Rule 20(b), Arizona Rules of Criminal Procedure, 17 A.R.S. Fendler also filed a timely motion for a new trial pursuant to Rule 24.1, Arizona Rules of Criminal Procedure, 17 A.R.S.

On April 14, 1978, the date set for the entry of the judgments against Fendler, but prior to the entry therein, the trial court made the following statement:

THE COURT: The Court has had under advisement the motions to dismiss and to acquit on the conspiracy count. I am going to grant these motions. I am satisfied that the indictment charged in Count I more than one conspiracy, and I think that I am governed by the rule in Dunn versus State, 50 Ariz. 473, 73 P.2d 107: "Defendant is therefore entitled, as a matter of right, to be charged only with the commission of one or a number of acts which constitute a definite sequence leading up to one definite offense..." I am satisfied the evidence in this case, really, the evidence presented to the grand jury established sequences to justify the charges. So, the charges of conspiracy to commit theft, conspiracy to make false book entries, conspiracy to commit a fraud on a state officer should have been charged in separate counts.

There will be an order dismissing Count I of the indictment against both defendants.

The court's order was subsequently memorialized in a minute entry dated April 14, 1978, which was signed by the trial judge, and read as follows:

It is ordered dismissing Count I of the indictment against both defendants.

On May 3, 1978, the state filed its notice of appeal. It also appears that the parties petitioned the trial court to clarify its prior ruling. On May 16, 1978, the trial court responded by issuing the following memorandum:

Both defendants and the state have requested the Court to clarify its ruling of April 14, 1978, disposing of Count I of the indictment, accusing the defendants of conspiracy.

It was not the intention of the Court to acquit either Mr. Fendler or Mr. Holman of the charge of conspiracy alleged in Count I of the indictment. It was the intention of the court to dismiss Count I because the Court felt that the count was defective because it charged multiple offenses. (Emphasis supplied).

On May 25, 1978, Fendler and Holman jointly moved this court to dismiss the state's appeal on the basis that the trial court's order of April 14, 1978, was not an appealable order. See, A.R.S. § 13-1712 (now A.R.S. § 13-4032, as amended). We denied appellees' motion with leave to reargue the issue in their briefs.

Since the issue has been reasserted, we must make the preliminary determination as to whether this court has jurisdiction to entertain the state's appeal.

However, before such a determination can be made, we must ascertain the nature of the order itself. Appellees claim that the only motion before the trial court to which the court could have responded was their "Motion for Judgment of Acquittal." Consequently, they argue that the order must be categorized as a "Judgment of Acquittal" despite the trial court's subsequent attempt to characterize it as a dismissal. Appellant, on the other hand contends that the trial court simply reconsidered its prior ruling pursuant to Rule 16.1(d), Arizona Rules of Criminal Procedure, 17 A.R.S. ¹ However, appellees counter by arguing that Rule 16 fails to sanction such post-verdict orders because the parameters of the rule are specifically limited to those procedures occurring "between arraignment and trial." Rule 16.1(a), Arizona Rules of Criminal Procedure, 17 A.R.S. ²

While appellees' counter-argument raises an interesting question, we need not resolve it here, because even if the court was without authority to reconsider its prior decision pursuant to Rule 16.1(d), it clearly had inherent authority to do the same. State v. Hannah, 118 Ariz. 610, 578 P.2d 1039 (1978). In our opinion, the trial court's order can only be characterized as a dismissal. ³ While the trial court expressly stated that it was granting the motions to dismiss and acquit, the basis for the decision was duplicity rather than the insufficiency of the evidence adduced at trial. Our conclusion rests not only on the trial judge's statement at the time he granted the motion, but on his subsequent memorandum and his remarks to Fendler just prior to the imposition of sentence when he stated:

For my part I have not the slightest doubt that the evidence at trial amply supported the jury's verdicts of guilty on the false book entry and failure to file tax return charges. Indeed the evidence supported the existence of a number of separate conspiracies. I have acquitted you of the charge of conspiracy because of the failure to allege separate conspiracies in separate counts. (emphasis supplied). ⁴

Having resolved this initial issue, we must now determine whether the trial court's order of dismissal is appealable by the state.

The only permissible grounds for an appeal by the state are those set forth in A.R.S. § 13-1712 (now A.R.S. § 13-4032, as amended). State v. Lopez, 26 Ariz.App. 559, 550 P.2d 113 (1976), (adopted in State v. Fayle, 114 Ariz. 219, 560 P.2d 403 (1976)). Section 13-1712 provided that:

An appeal may be taken by the state from:

1. An order quashing an indictment or information or count thereof.

2. An order granting a new trial.

3. An order arresting judgment.

4. A ruling on a question of law adverse to the state when the defendant was convicted and appeals from the judgment.

5. An order made after judgment affecting the substantial rights of the state.

6. The sentence on the grounds that it is illegal.

7. An order granting a motion to suppress the use of evidence.

The state argues that the court's order was the equivalent of an order quashing an indictment or count thereof, A.R.S. § 13-1712(1) (now A.R.S. § 13-4032(1), as amended), and refers this court to the case of State v. Lopez, in support of that proposition.

In Lopez, the issue concerned whether the state would appeal a particular pre-trial order of the trial court entered pursuant to Rule 16.5(b), Arizona Rules of Criminal Procedure, 17 A.R.S. ⁵ The state contended that since all motions to quash were abolished under the 1973 Rules of Criminal Procedure, A.R.S. § 13-1712(1) should be read as applying to all motions to dismiss. This court expressly rejected such a broad proposition by stating:

The statute (A.R.S. § 13-1712(1)), of course, was enacted prior to the present Criminal Rules, but it seems quite clear that the only appeal intended to be permitted by the statute was from a dismissal of the prosecution (then called the granting of a motion to quash) based on some legal insufficiency in the charging process. 26 Ariz.App. at 560, 550 P.2d at 114.

Appellant, therefore, argues that since the order was based upon a legal deficiency in count one, the present case falls squarely within the context of the above quoted language. While the state's argument has some superficial appeal, it ignores the actual holding of this court which was:

that only those orders which were formerly appealable for legal insufficiency on the granting of a motion to quash are now appealable on the granting of a motion to dismiss under present Rule 16.5(b). Id. at 561, 550 P.2d at 115.

As a result, we hold that this court's jurisdiction pursuant to A.R.S. § 13-1712(1) (now A.R.S. § 13-4032(1)) is dependent upon a finding that the basis for the order of dismissal existed under the former rules of criminal procedure governing motions to quash.

In our opinion, the case of State v. Freeman, 78 Ariz. 281, 279 P.2d 440 (1955), is dispositive of the issue. In Freeman, the state appealed an order of the Superior Court quashing an information. Defendant's motion to quash was based upon five separate grounds, including the assertion that the information violated section 44-725a, A.C.A. 1952 Cum.Supp., which reads as follows:

44-725a....