State v. Madrid
| Decision Date | 24 May 1973 |
| Docket Number | CA-CR,Nos. 1,s. 1 |
| Citation | 510 P.2d 50,20 Ariz.App. 51 |
| Parties | The STATE of Arizona, Appellee, v. Demetrio MADRID, Appellant. 508, 1 509. |
| Court | Arizona Court of Appeals |
Gary K. Nelson, Atty. Gen. of Ariz. by William S. Chick, Law Student (17 A.R.S., Rule 28(e), as amended, Rules of the Supreme Court), William J. Schafer, III and Ronald L. Crismon, Asst. Attys. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender, by Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
Both appeals covered in this opinion were consolidated for argument and disposition since both involve common questions of law and fact.
On October 26, 1970 the defendant, while represented by counsel, entered pleas of guilty to charges of second degree burglary in two separate cases; in both instances the trial court suspended the imposition of sentence for five years upon certain terms of probation. Defendant was arrested for a violation of the terms of his probation and a revocation of probation hearing relative to both cases was heard on February 17, 1972. The minutes of that hearing reflect the following events:
'Deputy County Attorney Wm. Feldhacker is present for the State. Defendant is present with counsel Robert Wertsching. Lynn Swisher, Court Reporter, is present.
This is the time set for hearing on revocation of probation.
Defendant is advised the Court has information the defendant has violated the terms of probation, and is interrogated by the Court.
Gene Godoy is interrogated by the Court.
The Court finds that the defendant has violated the terms and conditions of his probation as heretofore stated in the record.
IT IS THEREFORE ORDERED that the probation of the defendant is revoked.'
These minutes are set out because it is the only record of this hearing. The official court reporter who covered this hearing has filed an affidavit that she cannot locate her notes and a transcript is not available for review. The court reporter lost her notes when her home was flooded and, although she may have good cause, this again points up the necessity that all reporters' notes taken at such a trial should be retained by the court as part of the official file. See State v. Maxwell, 19 Ariz.App. 431, 508 P.2d 96 (1973).
The defendant alleges that he was not given notice of the charges against him and that there was insufficient basis for the revocation of his probation. Defendant further alleges that all persons were interrogated by the court and that he was not allowed the right of cross-examination.
We must determine what legal effect the lost transcript had on the defendant's rights under the particular facts of this case.
In State v. Ponce, 106 Ariz. 420, 477 P.2d 251 (1970), our Supreme Court remanded the case to the trial court for resentencing and a determination as to whether the defendant had intelligently and voluntarily entered his plea of guilty. In the case, the defendant was not represented by counsel and no court reporter was present. The Supreme Court could not review the case under those facts on the basis of the inadequate record.
In State v. Jackson, 107 Ariz. 371, 489 P.2d 8 (1971), the Supreme Court set aside a revocation of probation in the absence of a reporter's transcript on the grounds that the record failed to show the basis for such revocation. In that case the court pointed out that the power to revoke a probation is given under the statutory authority of A.R.S. § 13--1657 and that without a transcript the record does not reveal that any of the grounds for revocation as set out in the statute in fact existed.
In State v. Masters, 108 Ariz. 189, 494 P.2d 1319 (1972), the Supreme Court reversed a robbery conviction when it appeared a conflict of interest might have prevented a fair trial and there was no reporter's transcript for review.
The lack of a reporter's transcript does not automatically demand a rehearing in such a case. The presence of a court reporter can be waived by the failure to make a timely objection to the absence of such a reporter. State v. Crowder, 103 Ariz. 264, 440 P.2d 29 (1968); State v. Streett, 11 Ariz.App. 211, 463 P.2d 106 (1969). If the error complained of can be adequately reviewed by other portions of the record and there is no showing that the defendant's rights were prejudiced, the lack of a reporter's transcript does not require a retrial. State v. Washington, 108 Ariz. 111, 493 P.2d 493 (1972); State v. St. John, 108 Ariz. 570, 503 P.2d 791 (1972).
In this particular case there cannot be a waiver since a court reporter was present and the defendant had a right to rely on the assumption that a record was being made of the revocation hearing. The errors complained of here challenge the manner in which the hearing was conducted, the adequacy of the...
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State v. Dickey, 4109
...seeks to review a trial judgment without a complete record, see State v. Masters, 108 Ariz. 189, 494 P.2d 1319 (1972); State v. Madrid, 20 Ariz.App. 51, 510 P.2d 50 (1973), this case does not present the problem of a partial record. Our order of June 5, 1979, gave appellant the opportunity ......
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State v. Short
...record to determine factual basis for denial of motion to dismiss for deprivation of right to speedy trial); State v. Madrid, 20 Ariz.App. 51, 510 P.2d 50 (1973) (due process violated because appeal foreclosed where the transcript of a parole revocation hearing is destroyed by no fault of d......
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State v. Williams
...267, 475 P.2d 752 (1970) and State v. Walter, 12 Ariz.App. 282, 469 P.2d 848 (1970). We are mindful of the holding in State v. Madrid, 20 Ariz.App. 51, 510 P.2d 50 (1973), but this case was also decided after Morrissey and would thus come under the rule set out in those two The order revoki......
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State v. Marlar, 2
...to apply to probation revocation proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); See State v. Madrid, Ariz.App., 510 P.2d 50 (filed May 24, 1973). It should be noted that the Supreme Court of the United States also held that a probationer, like a paro......