State v. Manning, 1

• Decision Date: 06 December 1984
• Docket Number: No. 1,CA-CR,1
• Citation: 692 P.2d 318,143 Ariz. 139
• Parties: STATE of Arizona, Respondent, v. Charles Ray MANNING, Petitioner. 6758-PR.
• Court: Arizona Court of Appeals

Page 318

692 P.2d 318

143 Ariz. 139

STATE of Arizona, Respondent, v. Charles Ray MANNING, Petitioner.

No. 1 CA-CR 6758-PR.

Court of Appeals of Arizona,

Division 1, Department A.

Dec. 6, 1984.

Thomas E. Collins, Maricopa County Atty. by K.C. Scull, Deputy County Atty., and Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Criminal Division, Phoenix, for respondent

Ross P. Lee, Maricopa County Public Defender by Anne Kappes, Deputy Public Defender, Phoenix, for petitioner.

OPINION

GRANT, Judge.

The petitioner filed this petition for review from the trial court's denial of his petition for post-conviction relief and motion for rehearing. We dismiss the petition as it is not within the scope of rule 32, Arizona Rules of Criminal Procedure.

The procedural history of this case is as follows. The parole board revoked the petitioner's parole at a parole revocation hearing held January 6, 1981. The petitioner filed a petition for post-conviction relief on March 1, 1982, more than a year after the revocation hearing, in which he claimed that he had not received a proper hearing by the parole board. In supplement to the petition for post-conviction relief, the petitioner's counsel asserted that under the circumstances the revocation of the petitioner's parole was arbitrary and constituted an abuse of discretion amounting to a denial of due process of law. Counsel stipulated at the evidentiary hearing that the tapes of the parole board hearing already had been destroyed pursuant to a policy of destroying such tapes within a certain period after the hearing. On October 8, 1982, the trial court held an evidentiary hearing on the petition for post-conviction relief, after which the court found that, based on the evidence in the record, the petition should be denied. The petitioner now requests that we review the lower court's ruling on the petition for post-conviction relief.

A challenge to a parole revocation is not within the scope of amended rule 32, effective August 1, 1975. Previous rule 32.1(d) specified that one ground upon which a person could secure rule 32 post-conviction relief was that "[h]e is being held in custody after his sentence has expired or after his probation or parole has been unlawfully revoked." Amended rule 32.1(d) deletes "or after his probation or parole has been unlawfully revoked" and limits the ground to that "[h]e is being held in custody after his sentence has expired."

This change in language indicates that the Arizona Supreme Court, the promulgator of the Arizona Rules of Criminal Procedure, intended to eliminate the circumstance where one is being held in custody after his probation or parole has been unlawfully revoked as a possible ground to secure rule 32 post-conviction relief. This intention is substantiated by the comments to rule 32. The comments to former rule 32.1(d) state that probationers who wish to challenge their revocation and the resulting sentence have to file a petition under rule 32.1(c) and (d). This statement is deleted in the comments to amended rule 32.1(d). From this we infer that such a petition is not available for a probation revocation challenge.

The intention to eliminate rule 32 post-conviction relief as a remedy for one who is being held in custody after his probation or parole has been unlawfully revoked is substantiated further by the Arizona Supreme Court's decision in State v. Brown, 112 Ariz. 29, 536 P.2d 1047 (1975). Brown was decided under the former rule 32 and held that under the then-existing comments to the rules a person dissatisfied with revocation of his probation and sentence thereon could proceed by way of either appeal or petition for review, but that after the effective date of the changes in the rules a defendant whose probation had been revoked would have to proceed by way of appeal rather than petition for review. Since both probation and parole revocation were included in the former rule and deleted from the amended rule, we reason by analogy that if a petition for review is no longer available to a person...