State v. Mitchell
| Decision Date | 23 January 1976 |
| Docket Number | No. 3154,3154 |
| Citation | 112 Ariz. 592,545 P.2d 49 |
| Parties | STATE of Arizona, Appellee, v. James Arthur MITCHELL, Appellant. |
| Court | Arizona Supreme Court |
Ross P. Lee, Maricopa County Public Defender, by Jonathan Schwartz, Deputy Public Defender, Phoenix, for appellant.
The appellant, James Arthur Mitchell, was found guilty by a jury of the charge of armed robbery, and was sentenced to a term of not less than 10 years nor more than 11 years in the Arizona State Prison. Notice of appeal was timely filed, and jurisdiction was accepted by this Court pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S. The factual details relevant to this case are reserved for discussion in conjunction with the judicial resolution of the two issues presented by appellant for our review--speedy trial and admission of evidence of other acts.
The date of appellant's arraignment was May 16, 1974, at which time appellant entered a plea of not guilty and was ordered to remain in custody of the county sheriff. A trial date was set for July 2, 1974, and an omnibus hearing was scheduled for June 14, 1974. On June 14th, the trial court ordered that a hearing on all motions be set for June 26, 1974. This latter hearing on all motions was vacated on June 26th at the insistence of counsel for appellant for the reason that a plea bargain offer had been made to appellant by the prosecutor. On the day of the proposed trial, July 2, 1974, the court ordered that the matter be reset for trial for July 10, 1974, with a notation that the last day for trial would be July 15, 1974. The record reflects disagreement as to whether or not the prosecutor was informed by this date, July 2, 1974, of appellant's decision not to accept the plea offer. Nonetheless, on July 10th the matter was again reset for trial by court order for August 1, 1974. At the August 1st trial date, appellant submitted a motion for continuance pursuant to Rule 8.5, Rules of Criminal Procedure, 17 A.R.S. This motion was granted and the matter was once more reset for trial for August 14, 1974. On or about August 1, 1974, appellant also filed a motion to dismiss the criminal charge on the grounds that more than 60 days had elapsed since his arraignment. It was not until August 14th, the day the jury was impaneled, that the motion to dismiss was denied. The next day, and by a different judge, the motion was denied again.
Based upon the foregoing facts, appellant argues that the delay in bringing appellant to trial more than 60 days after his arraignment on the charge violated Rule 8.2(b) of the Arizona Rules of Criminal Procedure, 17 A.R.S. and that appellant's conviction should be reversed and the cause remanded for an order of dismissal. Appellant concedes, however, that once the excluded period caused by appellant's August 1st motion for continuance is deducted, a period of 76 days elapsed from the date of arraignment to the date of trial. Rule 8.6 provides for the sanctions for violation of the speedy trial time limits. 17 A.R.S. Rules of Criminal Procedure, Rule 8.6. Where, as in the instant case, the defendant is in custody and is not brought to trial within 60 days, the defendant is entitled 'to be released on his own recognizes without delay, and the time limit prescribed by Rule 8.2(c) shall apply.' 17 A.R.S. Rules of Criminal Procedure, Rule 8.6(a). Under such circumstances, it is only upon a violation of Rule 8.2(c) that the prosecution may be dismissed, either with or without prejudice. 17 A.R.S. Rules of Criminal Procedure, Rule 8.6(b); State ex rel. Berger v. Superior Court, 111
Ariz. 335, 529 P.2d 686 (1974). Since the appellant was brought to trial within the prescribed 90-day period of Rule 8.2(c), appellant's motions to dismiss alleging lack of jurisdiction on the basis of Rule 8.2 were properly denied by the trial court.
Immediately before trial, appellant moved to exclude testimony concerning an alleged armed robbery of a Circle K market in Tempe on the ground that, since the appellant was not charged with the Tempe robbery and there was no competent evidence that appellant committed the act, the presentation of testimony and evidence surrounding it would unduly prejudice the appellant. The prosecution argued that the introduction of the events surrounding the Tempe robbery was necessary for identification purposes and to complete the picture of the crime for the jury by showing that a witness at the Tempe robbery noted the license plate of the robbery vehicle which...
To continue reading
Request your trial
-
State v. Fierro
...be proof sufficient to take the case to a jury. State ex rel. La Sota v. Corcoran, 119 Ariz. 573, 583 P.2d 229 (1978); State v. Mitchell, 112 Ariz. 592, 545 P.2d 49 (1976). The proof need not rise beyond a reasonable doubt. State v. Marahrens, 114 Ariz. 304, 307, 560 P.2d 1211, 1214 (1977).......
-
State v. Terrazas
...to take the case to a jury." See e.g., State v. Marahrens, 114 Ariz. 304, 307, 560 P.2d 1211, 1214 (1977); State v. Mitchell, 112 Ariz. 592, 594, 545 P.2d 49, 51 (1976). If we are to assume that Hughes means what it says, the defendant in the present case is correct in asserting that Hughes......
-
State v. May
...People v. Everett, 14 Ill.App.3d 421, 302 N.E.2d 723 (1973); State v. Drews, 274 Minn. 426, 144 N.W.2d 251 (1966); State v. Mitchell, 112 Ariz. 592, 545 P.2d 49 (1976); Territory v. Awana, 28 Haw. 546 (1925); 1 Wharton, Criminal Evidence § 263 (13th ed. 1972). But see Curry v. State, 169 Te......
-
Irvin v. State
...520 P.2d 230 (1974); Valerio v. State, Wyo., 429 P.2d 317 (1967); State v. Lindsay, 77 Wyo. 410, 317 P.2d 506 (1957); State v. Mitchell, 112 Ariz. 592, 545 P.2d 49 (1976); Miles v. State, Okl.Crim., 554 P.2d 1200 (1976); Junior v. State, 89 Nev. 121, 507 P.2d 1037 (1973); State v. Aguirre, ......