State v. Maxwell
| Decision Date | 20 January 1965 |
| Docket Number | No. 1477,1477 |
| Parties | STATE of Arizona, Appellee, v. Jesse MAXWELL, Appellant. |
| Court | Arizona Supreme Court |
Robert Pickrell, Atty. Gen., and Harold A. Beelar, Gila County Atty., for appellee.
Navor Proctor, Globe, and Sam Lazovich, Miami, for appellant.
Appellant pleaded guilty to writing bad checks. The imposition of sentence was suspended and appellant was placed on probation for five years. One of the terms of probation was that appellant 'at no time have a checking account or write any checks.' Appellant was arrested for violating the terms of his probation and subsequently a hearing was held in the Superior Court on a petition to revoke probation. At the hearing appellant denied having written the check on which the petition for revocation of probation was based and the witness called to prove appellant had written the check could not identify him. The probation officer testified that appellant had admitted writing several bad checks after he had been placed on probation.
The county attorney asked appellant at the hearing how many bad checks he had written while on probation other than that on which the petition for revocation of probation was based. Counsel for appellant objected on the ground that the answer to the question might incriminate appellant and was therefore in violation of Art. II, section 10 of the Arizona Constitution, A.R.S. The trial judge overruled the objection and instructed the witness to answer the question. The witness answered: 'I've written several of them.' Probation was revoked and appellant was sentenced to from three to four years. Appellant was requested to sign his name at the hearing for the purpose of identifying his signature and his counsel again objected on the ground of self incrimination. The trial judge then commented that a hearing on revocation of probation was different from a trial and that the same rules governing self incrimination do not apply. The trial judge further stated that probation is in the discretion of the trial judge and if appellant refused to sign his name for the purpose of identification on the ground that it would incriminate him such a refusal would be held against him.
Appellant filed his notice of appeal in propria persona from the revocation of probation and counsel was appointed by the trial court pursuant to A.R.S. § 13-161 to handle his appeal. Counsel advised this court by written communication that he had searched the record and the transcript and was unable to find grounds upon which the appeal could be based. This court ordered the appeal be submitted.
We have researched the nature of the proceedings necessary to safeguard the rights of an alleged parole violator. At such a proceeding the rights of the parole violator are not conferred by constitution but are conferred by statute. Escoe v. 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566. To remain at liberty under a suspended sentence is not a matter of right but a matter of grace and purely in the discretion of the trial court, Varela v. Merrill, 51 Ariz. 64, 74 P.2d 569. A proceeding for revocation of probation is not subject to the limitations of a trial on the merits and is not governed by the same rules, People v. Slater, 152 Cal.App.2d 814, 313 P.2d 111.
This court quoting from the United States Supreme Court in Escoe v. Zerbst, supra, stated in Varela v. Merrill, supra:
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