State v. Jackson, 1
| Decision Date | 07 June 1971 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 14 Ariz.App. 591,485 P.2d 580 |
| Parties | STATE of Arizona, Appellee, v. Gary Lee JACKSON, Appellant. 306. |
| Court | Arizona Court of Appeals |
Ross P. Lee, Public Defender, Maricopa County, by James H. Kemper, Deputy Public Defender, for appellant.
Gary K. Nelson, Atty. Gen. of Arizona, by Carl Waag, Former Asst. Atty. Gen., for appellee.
This is an appeal from a judgment of conviction after a plea of guilty to an open end charge of 'confidence game' in violation of A.R.S. § 13--312.
On 16 July 1969 an Information was filed in the Superior Court for Maricopa County charging the defendant with the 'theft of motor vehicle,' a felony, in violation of A.R.S. § 13--672. The Information bore criminal cause number 58892. The Information charged that on 27 April 1969 the defendant took a 1959 Ford automobile from one Robert Smalley with the intent to permanently deprive. At his arraignment on 30 July 1969 the defendant entered a plea of not guilty to the charge.
On 14 May 1970 the defendant appeared in Superior Court to change his plea. The 14 May hearing also involved a separate criminal matter, which was assigned the number Cr. 61164, and was the subject of a separate appeal. See our opinion in State v. Jackson, 485 P.2d 583, filed May 26, 1971. The transcript of the proceedings keeps the matters clearly separate.
The State moved to amend the Information in number Cr. 58892 by interlineation. There was no objection by the defendant and the State's motion was granted. The amendment of the Information was accomplished by striking out the words 'Theft of Motor Vehicle' and 'a felony' and inserting the words 'Confidence Game' and by striking out the number '672' and inserting the number '312' so that the section violated read 'A.R.S. Sec. 13--312.' The words 'open end' were then inserted at the end of the charging portion of the Information. The factual allegations of the Information were not changed.
In substance, the Information, as amended, charged the defendant with the crime of 'confidence game' in that on 27 April 1969 he took a motor vehicle from Robert Smalley with the intent to permanently deprive him of the motor vehicle in violation of A.R.S. § 13--312, an open end charge.
The defendant then moved to withdraw his plea of not guilty to the charge of 'theft of motor vehicle' and enter a plea of guilty to the charge of 'confidence game.' The trial court advised the defendant of his constitutional rights and of the consequences of his plea. The court then found that the plea in each of the two cases was made voluntarily and intelligently. The defendant orally entered his plea of guilty and the following exchange took place.
On 2 June 1970 the trial court entered a judgment of guilty of 'confidence game,' designated it a felony, and sentenced the defendant to serve not less than one nor more than two years in the Arizona State Prison, and made the sentence to run concurrent with another.
The defendant urges on appeal that Arizona Courts are required to satisfy themselves that a factual basis for a plea of guilty exists prior to the entry of a judgment of guilt. We have recognized that this is the law in Arizona. State v. Sutherland, 14 Ariz.App. 344, 483 P.2d 576, filed April 14, 1971. 1 This is based upon the procedural requirements of Rule 11 of the Federal Rules of Criminal Procedure which, as announced by the Arizona Supreme Court in State v. Laurino, 106 Ariz. 586, 482 P.2d 342 (1971), have been applicable in Arizona since the decision of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
In State v. Sutherland we held that it is not necessary for the trial court to make a specific finding that there is a factual basis for a plea of guilty if the record at the time of entry of the judgment of guilt and sentence clearly establishes the presence of a factual basis.
The gravamen of the offense of 'confidence game' is the gaining of confidence of a victim by some false representation, deception or device. Clark v. State, 53 Ariz. 416, 89 P.2d 1077 (1939). The Information, as amended, does not allege facts which would support a charge of 'confidence game.' We have reviewed the record of the preliminary hearing, and, as set forth earlier in this opinion, the...
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State v. Jackson
...entered the pleas of guilty, he admitted facts upon which the original information in each case had been filed. In State v. Jackson, 14 Ariz.App. 591, 485 P.2d 580 (1971), we reversed the conviction in Superior Court cause number 58892 for the reason that the facts of the case did not suppo......
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State v. Fulper
...of necessity showing the elements of the crime.' 15 Ariz.App. at 49, 485 P.2d at 873. (Footnotes omitted). See also State v. Jackson, 14 Ariz.App. 591, 485 P.2d 580 (1971); State v. Moreno, 16 Ariz.App. 191, 492 P.2d 440 (filed January 10, 1972). Here, as stated above, it was not necessary ......
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State v. McGhee
...crime, should be sufficient to permit the plea to the lesser crime. There is little Arizona authority dealing with this problem. In State v. Jackson, supra, the defendant pleaded guilty to the open and charge of confidence game. The facts showed that he actually committed the more serious o......
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State v. Kuhlman
...at 347, 483 P.2d at 579. See also, State v. Sullivan, supra; State v. Brown, 15 Ariz.App. 48, 485 P.2d 872 (1970); State v. Jackson, 14 Ariz.App. 591, 485 P.2d 580 (1971). It is clear from defendant's statement set forth in the probation officer's report that at the time of judgment and sen......