State v. McWilliams
| Decision Date | 24 October 1968 |
| Docket Number | No. 1792,1792 |
| Citation | 446 P.2d 229,103 Ariz. 500 |
| Parties | STATE of Arizona, Appellee, v. Fred McWILLIAMS, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Darrell F. Smith, Former Atty. Gen., by T. M. Pierce, Asst. Atty. Gen., Phoenix, for appellee.
Head, Cline & Head, by Donald R. Head, Prescott, for appellant.
Defendant Fred McWilliams, was convicted of burglary in the first degree in violation of A.R.S. § 13--302, with prior conviction, and sentenced to a term of not less that ten nor more than twenty years. From this conviction and sentence defendant appeals.
On February 12, 1966, defendant and three companions were arrested in connection with an attempted burglary of a Safeway Store in Prescott. On December 5, 1966, defendant and one of these companions were brought to trial. This trial had progressed to the point where the case was to go to the jury, when the court declared a mistrial. Defendant was brought to trial separately on April 11, 1967, convicted and sentenced. The appeal stems from this trial.
The single question raised on appeal is whether the trial court erred in refusing to grant defense counsel's motion for a continuance, made April 6, 1967, on the grounds that counsel was appointed to represent defendant officially on April 3, 1967, that a transcript of the preliminary hearing was not made available to counsel until April 5th, and a transcript of the testimony of witnesses at the previous trial (which was declared a mistrial) was not available to defense counsel, and because of the complexity and many exhibits to be used, which were used in the first trial, it would be impossible to prepare properly and defend defendant's rights at the trial set for April 11th. Because of the nature of the appeal, the entire transcript of the testimony at the trial was not filed in the appeal. A typewritten volume, entitled 'Reporter's Transcript on Appeal--Volume I', embodying only some sixty-one pages, was supplied. It contains the following: (1) transcript of hearing on defense counsel's renewal of the motion to continue, made on April 11th, just prior to trial; (2) motion for a hearing 'on illegal search and seizure' held outside the hearing of the jury; and (3) one page of transcript of final questioning of defendant by the county attorney on cross-examination, concerning 'the burglar clothes of the defendant'.
Minute entries were included in the record on appeal, commencing with April 3rd, the date of arraignment of defendant before the April 11th trial. The statements of facts in the briefs, and the facts alluded to by the trial court in the transcript of the hearing on the motion to continue constitute the only clue to what happened between declaring of the mistrial, and the new arraignment of April 3rd. We accept these as the facts for the purposes of this appeal.
Defendant was represented by counsel at the original trial, but he had his counsel 'had a falling out'. Defendant indicated to the court that he would employ counsel, but that he would need a fight in order to raise funds for such employment. (He was a prizefighter, holding the middleweight championship in Arizona at the time of trial.) Although the record does not disclose whether the court indicated any date, or tentative date for the second trial before April 3rd, defendant knew the trial was to be held. On more than one occasion the trial judge, upon defendant's failure to answer letters regarding the status of employment of his own counsel, brought him into court on bench warrants, defendant maintaining he was going to employ counsel, but that his fight had fallen through. The judge became concerned over this failure, and finally appointed counsel on April 3rd, setting the trial for April 11th.
In denying defense counsel's motion for continuance, the court stated that any delays were caused by the defendant and were occasioned for him. The court further indicated that defense counsel had had the benefit of the transcript of the Preliminary Hearing containing the testimony of the state's witnesses (which he had received on April 7th, 10th and the morning of the 11th).
Defendant contends that the court's refusal to grant the motion for a continuance was reversible error since forcing his attorney to go to trial with only three days to prepare the case deprived defendant of his constitutional right of adequate representation by counsel. We agree.
The right of a criminal defendant to adequate and effective assistance of counsel is firmly established. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Such a constitutional right necessarily includes the allowance to counsel of reasonable time to prepare his...
To continue reading
Request your trial
-
Davila v. State
...plea entered was withdrawn. It was determined that no effective waiver had occurred and a new trial was ordered. See State v. McWilliams, 103 Ariz. 500, 446 P.2d 229 (1968) and Rocha, 618 P.2d 475. Conversely, time and the circumstances involved in the case makes Burleson v. State, 543 P.2d......
-
State v. Clark
...decision granting a continuance to allow counsel adequate time to prepare a case for an abuse of discretion. State v. McWilliams, 103 Ariz. 500, 501-02, 446 P.2d 229, 230-31 (1968); State v. LeVar, 98 Ariz. 217, 220-21, 403 P.2d 532, 535 (1965). "When defense counsel states that he is not a......
-
Ash v. State
...cited cases. Appellant's principal reliance is upon the case of Lorenz v. People, 159 Colo. 494, 412 P.2d 895, 3 and State v. McWilliams, 103 Ariz. 500, 446 P.2d 229. The Lorenz case is of little help on this question as it does not consider the effect of any fault of the defendant, and add......
-
State v. Loreto
...over the preceding weekend is insufficient to ensure a defendant receives effective representation. See, e.g., State v. McWilliams, 103 Ariz. 500, 502, 446 P.2d 229, 231 (1968) (finding prejudice when attorney notified of trial one week beforehand and provided with essential materials only ......