State v. Gomez
| Decision Date | 09 October 1975 |
| Docket Number | No. 3148,3148 |
| Citation | 540 P.2d 1224,112 Ariz. 243 |
| Parties | STATE of Arizona, Appellee, v. Benny Macias GOMEZ, Appellant. |
| Court | Arizona Supreme Court |
N. Warner Lee, Former Atty. Gen., Bruce E. Babbitt, Atty. Gen. by Grove M. Callison, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by Garth V. Smith, Deputy Public Defender, Phoenix, for appellant.
This is an appeal from a trial court order revoking the probation of Benny Macias Gomez and sentencing him to a term of not less than three nor more than four years in the Arizona State Prison. This court has jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court.
Several issues have been presented: (1) the appropriateness of an appeal; (2) the sufficiency of the evidence; (3) the failure to have a final hearing; (4) whether Gomez was given credit for the time he already served in jail.
Gomez pled guilty to the charge of driving while intoxicated while his license was suspended, revoked or refused. ARS § 28--692.02. The imposition of sentence was suspended for a period of three years and Gomez was placed on probation.
On August 7, 1974, a probation officer filed a petition to revoke probation alleging that Gomez had violated certain terms of his probation: (1) changing his place of residence without the permission of his probation officer; (2) using intoxicating liquor; (3) not remaining employed; (4) not reporting in person or in writing to the probation officer; (5) failing to make restitution payments.
A preliminary hearing was held. At its conclusion, the trial judge found as a matter of fact that Gomez had violated the conditions of his probation in the manner complained of with the exception of using intoxicating liquor.
This court has held that a petition for post-conviction relief is considered commenced on the day that it was filed and not on the date of filing the original criminal action. Noble v. State, 109 Ariz. 537, 514 P.2d 458 (1973). The petition to revoke Gomez' probation was filed after the effective date of the new rules of criminal procedure which therefore are the applicable rules.
Pursuant to the 1973 Rules of Criminal Procedure, a person dissatisfied with a revocation of his probation and a sentence thereon may proceed pursuant to Rule 31 or Rule 32, 1973 Rules of Criminal Procedure. State v. Brown, 112 Ariz. 29, 536 P.2d 1047 (1975). This appeal was properly brought.
All the terms and conditions of probation are to be in writing and a copy given to the probationer. Rule 27.1, 1973 Rules of Criminal Procedure. The term referred to in the revocation petition and at the hearing that Gomez was to report in person or in writing to his probation officer was not one of the conditions imposed by the sentencing judge.
We briefly note that this discrepancy was not raised at the revocation hearing. We also note that at the time that the terms of probation were imposed, the 1973 Rules of Criminal Procedure were not in effect and under the former rules, the conditions of probation did not have to be in writing. However, under the present rules, not only must the terms and conditions of probation be in writing, probation cannot be revoked for a violation of a condition of which the probationer had no written notice. Rule 27.7(d), 1973 Rules of Criminal Procedure.
Whether under the former or the present rules, revocation of probation was proper in this instance. The trial judge expressly found that Gomez had violated three conditions of his probation other than the one of which Gomez was unaware. Each of the three violations was sufficiently supported by the evidence, contrary to the assertions of the appellant, and one was admitted by Gomez. Each of the violations would have been a valid basis on which to revoke probation. The situation is analogous to submitting several criminal counts against an individual to a trier of fact and letting the trier of fact determine guilt or innocence on each count separately without regard to the other allegations. The analogy can be carried further that if a person is found guilty of two counts and one is a lesser included offense of the other, only one penalty...
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State v. Williams
...written notice to vacate Frances Beasley Williams' residence, his probation cannot be revoked on that ground. See State v. Gomez, 112 Ariz. 243, 540 P.2d 1224 (1975). Appellant was apprised, however, in his written conditions of probation, that he "shall at all times obey all laws of the St......
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State v. Baylis
...Supreme Court has held that the final revocation can be waived. State v. Barnett, 112 Ariz. 212, 540 P.2d 684 (1975); State v. Gomez, 112 Ariz. 243, 540 P.2d 1224 (1975). We feel that it is incumbent on appellant's counsel to object to the proceeding at the trial court level in order to pre......
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State v. Jameson
...were filed subsequent to September 1, 1973, the instant case is governed by the 1973 Rules of Criminal Procedure. State v. Gomez, 112 Ariz. 243, 540 P.2d 1224 (Oct. 9, 1975); Noble v. State, 109 Ariz. 537, 514 P.id 458 (1973). Although these Rules do not explicitly state that the probatione......
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State v. Ojeda
...113 Ariz. 360, 362, 555 P.2d 318, 320 (1976); State v. Jameson, 112 Ariz. 315, 317, 541 P.2d 912, 914 (1975); State v. Gomez, 112 Ariz. 243, 245, 540 P.2d 1224, 1226 (1975). The stated rationale for this rule is that any one probation violation could justify a judge's decision to revoke pro......