State v. Flores
| Decision Date | 30 January 1973 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 505 P.2d 1077,19 Ariz.App. 186 |
| Parties | STATE of Arizona, Appellee, v. Manuel D. FLORES, Appellant. 316. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen., by John J. Dickinson, Sp. Asst. Atty. Gen., and Peter M. Van Orman, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Public Defender, by Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
This is an appeal from a revocation of probation and a sentence of three to four years in the Arizona State Prison. The sentence was based on a judgment of guilt entered upon defendant's plea of guilty to the crime of burglary, second degree.
Originally, defendant was charged with one count of burglary and one count of grand theft. Following a preliminary hearing he was held to answer on both charges. Upon his arraignment in the Superior Court, defendant, being represented by counsel, entered a plea of not guilty to each count. Subsequently he was permitted to withdraw his plea of not guilty to the burglary charge and enter a plea to a charge of burglary, second degree. The grand theft charge was dismissed. On November 5, 1969, the court (Hon. William H. Gooding) thereupon placed him on two years' probation. Thereafter, on May 21, 1970, a warrant was issued against defendant based on a charge of illegal possession of marijuana.
On June 4, 1970, defendant appeared before The Honorable Warren C. Ridge, at a time which he announced was set for hearing, and was represented by the Public Defender who announced that he was ready. The hearing was reported by a court reporter. At the hearing the trial court proceeded to review with defendant the record of his adjudication of being guilty to the crime of second degree burglary, the granting to him of a two-year suspension of the imposition of sentence by the court, and being placed on probation. The court advised defendant that the probation officer handling his case had reported that he had violated the terms of his probation in not reporting as required. The defendant admitted failure in reporting, but offered certain explanations. He was also advised that he had, contrary to the provisions of his probation, been associating with persons of bad reputation and that he had been charged with another felony. Defendant replied that this was partially true, and again offered certain explanations. The court told him that many efforts had been made to get him into helpful programs of rehabilitation, but without success.
Counsel for defendant made a plea, stating that no attempt had been made to get him into federal rehabilitation programs and pleaded with the court that such be done. At the close of the hearing, when all was said and done, the trial judge made his findings that defendant had violated the terms of his probation and proceeded to revoke the probation. The court then sentenced him to a term of not less than three nor more than four years in the Arizona State Prison. Thereafter he was advised of his right to appeal.
The proceedings at the change of plea (October 15, 1969) and at the suspension of sentence (November 5, 1969) were reported by a court reporter. The reporter is now in New Mexico, and has made an affidavit to the effect that he has made a diligent search of his records and has been unable to locate the notes of the proceedings; that these notes comprise a very small portion of notes he has taken during his career as a court reporter; and that these particular notes are apparently included within portions of other larger proceedings which he cannot now identify.
Defendant first contends that he has been denied due process under the Fourteenth Amendment of the United States Constitution because the court has been unable to furnish him with a transcript of the proceedings taken down by the court reporter at the time he entered his plea of guilty. Appellee questions defendant's timeliness in raising the issue at this time. We agree with appellee.
A reading of the record shows that defendant, represented by counsel, entered his plea of guilty on October 15, 1969, and that thereafter, on November 5, 1969, the court adjudged him guilty of the offense alleged and placed him on probation for a period of two years. No appeal was taken from this judgment of guilt and order for probation. The notice of appeal is from the revocation and sentence pronounced upon defendant on June 4, 1970.
Earlier in this case, on May 10, 1971, we passed upon the question of timeliness when we considered a motion to remand made by defendant. At that time we stated that it was our opinion that the only appeal pending before this Court was the appeal in relation to the revocation of probation and prison sentence. It is our opinion now, as it was then, that there is no appeal before this Court in relation to the change of plea or the judgment of guilt and that the time within which said appeal may be taken has long since expired. Our Supreme Court in State v. Osborn, 107 Ariz. 295, 486 P.2d 777 (1971), passing on the identical question, held that an appeal from a judgment of guilt and probation must be taken within sixty days after the judgment of guilt and probation is entered, and that the suspension of the imposition of sentence and the granting of probation does not extend the time for filing such appeal. This same question was also decided by this Court recently in State v. Johnson, 18 Ariz.App. 474, 503 P.2d 829 (1972), wherein the cases on this point were reviewed and the Osborn, supra, rationale was applied.
In searching the record, we have looked into the Clerk's minutes to find an account of what took place. Counsel for defendant, in open court and before the bench, discussed with the defendant his plea of guilty. The minutes show that the court summed up the matter as follows:
'The Court finds that the Defendant's plea of guilty is being made voluntarily, intelligently and knowingly, with an understanding of the possible consequences, and that no promises of immunity or threats were made to persuade him to make this plea of guilty.
'The Court accepts the Defendant's plea of guilty to the crime of Burglary (Second Degree), A Felony, as charged in Count I of the Information, and the Clerk is directed to enter it of record.'
We find this first contention of error cannot be sustained.
Defendant's remaining contention revolves around the revocation of probation. In effect, he claims violation of due process in that he was not given notice of charges (violation of probation) against him, was not confronted with...
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