State v. Magallanes
| Decision Date | 28 December 1973 |
| Docket Number | No. 2643,2643 |
| Citation | 517 P.2d 505,110 Ariz. 235 |
| Parties | STATE of Arizona, Appellee, v. Eusebio MAGALLANES, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen. by Thomas A. Jacobs, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa Co. Public Defender by Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
Defendant Eusebio Magallanes pleaded guilty on December 10, 1971 to the crime of possessing heroin for sale. Sentence was suspended and he was placed on probation for four years. On September 15, 1972, a bench warrant was issued for violation of the conditions of his probation and he was arrested. His hearing was first set for September 25, but his lawyer withdrew, the public defender was appointed, and the hearing was postponed to October 5, 1972.
At that hearing, on evidence which we deem sufficient, he was found guilty of violating the terms of his probation, and the judge sentenced him to imprisonment for a term of 25 years to life. He appeals, raising two issues:
I. Was he denied due process of law because of the failure of the State to give him written notice of the charges and hold a preliminary hearing on them, before the hearing on whether to revoke his probation?
II. Was the sentence unauthorized and void?
Defendant relies upon Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). It holds that before a parole may be revoked, due process of law must be afforded to the parolee. This, said the United States Supreme Court, involves a two-stage procedure. The first stage occurs when the parolee is arrested at which time 'some minimal inquiry' must be conducted near the time and place where the arrest takes place. 'Such an inquiry should be seen as in the nature of a 'preliminary hearing' to determine whether there is probable cause' to believe that the accused has violated his parole conditions. The inquiry should not be made by someone directly involved in the case, such as the man's parole officer.
The parolee must be given notice of the time, place and purpose of the hearing, and strict rules of evidence are to be avoided. The notice, said the Court, should state what parole violations have been alleged, and the witnesses against the accused should be made available for cross-examination, except when risk of harm to the witnesses exists. Based on the information adduced, the hearing officer should determine wheher there is probable cause to hold the parolee for the final decision of the judicial body which will determine whether the parole is to be revoked.
The Court stated that '(t)here must also be an opportunity for a hearing, If it is desired by the parolee . . . (which) must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation . . . A lapse of two months . . . (between the two hearings) would not appear to be unreasonable.' (Emphasis added).
Morrissey, supra, is not retroactive; this is specifically indicated in the opinion. However, since Morrissey, supra, was decided before the arrest of the accused in the instant case, its retroactivity is not material.
As stated, Morrissey, supra, involved a man who had been sentenced, and was out on Parole. Not until the decision in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), did it become the law that an accused on Probation, who had not yet been sentenced, would also require two separate hearings to revoke his probation. In Gagnon, the Court's words were:
'(W)e hold that a probationer, like a parolee, is entitled to a preliminary and final revocation hearing . . .'.
We agree with the Court of Appeals that Gagnon, supra, should also be deemed not to be retroactive. See State v. Settle, 20 Ariz.App. 283, 512 P.2d 46 (1973).
Probationer was accused of having violated his probation conditions. The trial court went right into the final hearing, omitting the preliminary hearing. It proceeded to hear two State's...
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Williams v. State
...State v. Henley, 141 Ariz. 465, 687 P.2d 1220 (1984). This principle also applies to constitutional error. See State v. Magallanes, 110 Ariz. 235, 517 P.2d 505 (1973). Only fundamental error, that is, error which goes to the very foundation of the case, may be raised for the first time on a......
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State v. Allen, CR-87-0087-PR
...We have held that the rule of waiver is equally applicable even when the error may be of constitutional magnitude. State v. Magallanes, 110 Ariz. 235, 517 P.2d 505 (1973) (holding that State's failure to afford defendant proper notice in accordance with procedural due process in a probation......
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State v. Bolton, CR-93-0086-AP
...U.S. ----, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994); State v. Holder, 155 Ariz. 83, 85, 745 P.2d 141, 143 (1987); State v. Magallanes, 110 Ariz. 235, 236, 517 P.2d 505, 506 (1973). In our review of this case, we have concluded that none of the waived issues presents fundamental error. See Sta......
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State v. Lee
...this appeal. Appellants who fail to object in the trial court waive their rights to raise the objection on appeal. State v. Magallanes, 110 Ariz. 235, 517 P.2d 505 (1973). The Fourteenth and Sixth Amendments to the United States Constitution forbid a state's deliberate and systematic exclus......