State v. Garrett

CourtCourt of Appeals of Arizona
Citation16 Ariz.App. 427,493 P.2d 1232
Docket NumberCA-CIV,No. 2,2
PartiesThe STATE of Arizona, Petitioner, v. Honorable Lee GARRETT, Judge of the Superior Court, Division Two, Respondent; Theodore Thomas LICAVOLI, Real Party in Interest. 1160.
Decision Date23 February 1972

Rose Silver, Pima County Atty. by Jon R. Cooper, Deputy County Atty., Tucson, for petitioner.

Messing, Hirsh & Franklin by Robert J. Hirsh, Tucson, for real party in interest.

HOWARD, Judge.

This is a special action wherein the petitioner questions respondent's authority to grant bail to the real party in interest. (Defendant in three pending criminal prosecutions.) On January 20, 1972, a grand jury indictment was filed before the Honorable Alice Truman, Judge of the Superior Court of Pima County charging the real party in interest with the crime of forgery of a credit card. At that time Judge Truman ordered that the real party in interest be held for trial on the grand jury indictment without bond on the basis that at the time of the commission of the offense alleged in the indictment the defendant had already been admitted to bail in Pima County Cause No. A-19541, charging him with armed robbery allegedly committed on the 2nd day of May, 1971, and had furthermore been admitted to bail in Pima County Cause No. A-20322, charging him with three counts of forgery allegedly committed on Octoer 28, 1971, October 29, 1971 and November 1, 1971.

On January 24, 1972, subsequent to the order of Judge Truman, a motion was filed by the defendant to admit him to bail. This motion was heard before the respondent, Judge Lee Garrett, who entered an order setting the defendant's bond at $2,000.

Petitioner has filed this special action contending that Article 2, Section 22 of the Constitution of the State of Arizona, A.R.S. prohibits the court from granting bail in a case such as this. Real party in interest contends that the constitutional amendment is not mandatory, but it is only discretionary and that the interpretation of the Constitution advocated by petitioner would violate the Eighth Amendment to the United States Constitution.

Article 2, Section 22 of the Constitution of the State of Arizona reads as follows:

'Section 22. All persons charged with crime shall be bailable by sufficient sureties, except for:

1. Capital offenses when the proof is evident or the presumption great.

2. Felony offenses, committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the presumption great as to the present charge.'

We believe that the alleged constitutional infirmities have been decided adversely to the real party in interest by the Arizona Supreme Court in Rendel v. Mummert, 106 Ariz. 233, 474 P.2d 824 (1970). In Rendel the court cited Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952) which contained the following analysis of the bail provision in the Eighth Amendment of the United States Constitution:

'The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said to indicate any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus in criminal cases bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable. We think, clearly, here that the Eighth Amendment does not require that bail be allowed under the circumstances of these cases.' 342 U.S. at 545-546, 72 S.Ct. at 536.

The court in Rendel also cited with approval federal cases which hold that there is no federal constitutional right to bail. Fernandez v. United States, 81 S.Ct. 642, 5 L.Ed.2d 683 (1961); Mastrian v. Hedman, 326 F.2d 708 (8th Cir.), cert. denied, 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed.2d 982 (1964). This is true whether the attack is based upon Eighth Amendment grounds or upon the due process clauses of the Fifth and Fourteenth Amendments. See Mitchell, Bail Reform and the Constitutionality of Pretrial Detention, 55 Va.L.Rev. 1223 (1969); Note, Preventive Detention, 36 Geo.Wash.L.Rev. 178 (1967).

Whether or not one charged with a felony...

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13 cases
  • Hernandez v. Lynch, 1 CA-SA 07-0092.
    • United States
    • Court of Appeals of Arizona
    • 2 Octubre 2007
    ...process. See, e.g., Carlson, 342 U.S. at 545, 72 S.Ct. 525; Simpson, 207 Ariz. at 269, ¶ 25, 85 P.3d at 486; see also State v. Garrett, 16 Ariz.App. 427, 428-29, 493 P.2d 1232, 1233-34 (1972) ("Whether or not one charged with a felony is to be admitted to bail, or, if bail is fixed, what am......
  • Simpson v. Owens, 1 CA-SA 03-0188.
    • United States
    • Court of Appeals of Arizona
    • 26 Febrero 2004
    ...v. Mummert, 106 Ariz. 233, 235-37, 474 P.2d 824, 826-28 (1970); Rayes, 206 Ariz. at 61 ¶ 9, 75 P.3d at 151; State v. Garrett, 16 Ariz.App. 427, 428, 493 P.2d 1232, 1233 (1972).4 ¶ 15 There is a right to bail in Arizona except when "the proof is evident or the presumption great" that the acc......
  • Morreno v. Brickner
    • United States
    • Supreme Court of Arizona
    • 2 Mayo 2018
    ...when proof was evident and presumption great that he committed a felony while released on bail on prior charge); State v. Garrett , 16 Ariz. App. 427, 429, 493 P.2d 1232, 1234 (1972) (same, and finding the On–Release provision’s purpose and policy "entirely reasonable"). Morreno argues that......
  • State v. Arthur
    • United States
    • United States State Supreme Court of Florida
    • 20 Noviembre 1980
    ...E. g., State ex rel. Freeman v. Kelly, 86 So.2d 166 (Fla.1956); Ex parte Hatcher, 86 Fla. 330, 98 So. 72 (1923).2 State v. Garrett, 16 Ariz.App. 427, 493 P.2d 1232 (1972); People v. District Court, 187 Colo. 164, 529 P.2d 1335 (1974).3 State v. Hartzell, 13 N.D. 356, 100 N.W. 745 (1904); Ex......
  • Request a trial to view additional results

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