State v. Pogue, 3491
| Decision Date | 01 November 1976 |
| Docket Number | No. 3491,3491 |
| Citation | 557 P.2d 163,113 Ariz. 478 |
| Parties | STATE of Arizona, Appellee, v. James Ortiz POGUE, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III and Galen H. Wilkes, Asst. Attys. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by Garth V. Smith, Deputy Public Defender, Phoenix, for appellant.
James Ortiz Pogue was tried and convicted of second-degree burglary. The evidence discloses that the defendant Pogue entered a retail store in Maricopa County, took an automatic toothbrush valued at $12.12 and left the store without paying for the item. The defendant delivered the stolen merchandise to an accomplice waiting in the store parking lot. The accomplice entered the store and returned the item to the store and obtained a refund. The defendant and his accomplice were arrested in the parking lot of the store by law enforcement officers who had had them under surveillance. Following the conviction and sentence the defendant filed a timely appeal and we assumed jurisdiction pursuant to 17A A.R.S.Sup.Ct.Rules, Rule 47(e)(5).
On appeal defendant contends:
1. That he had been denied a speedy trial in violation of Rule 17 A.R.S. Rules of Criminal Procedure, rule 8.2 (1973), and
2. That the trial court erred in admitting testimony of other crimes committed by the defendant and testimony indicating that the defendant had a criminal record and was a suspect in other crimes.
On the day following his arrest, July 11, 1974, the defendant made an initial appearance on the charges before a magistrate. A preliminary hearing date was set for July 17th. The defendant was unable to make bail and remained in custody until July 17th when he was told that there was not going to be a preliminary hearing and that the charges were dismissed. Defendant was released from custody. There had not been any complaint filed because the county attorney would not authorize one at the time. He had advised the police to do additional investigation.
On September 20, 1974 a complaint was filed. A summons was issued, but it could not be served. Later a warrant was issued, and defendant was arrested on the warrant on December 6, 1974. He was held to answer on the charge. An information was filed and defendant was arraigned on January 2, 1975. On February 18, 1975 defendant was brought to trial which resulted in his conviction.
Defendant contends that the time limits of Rule 8.2, Rules of Criminal Procedure, 17 A.R.S. were violated and the case should have been dismissed. The trial judge denied the motion to dismiss, and we believe correctly so.
The abortive attempt to charge the defendant in July may be considered comparable to a complaint being filed and then dismissed. There is no evidence that the prosecutor was trying to avoid the time limits of Rule 8. The prosecutor had refused to authorize a complaint, and the defendant, with some delay, was released from custody. The filing of a complaint in September began a new time period. State ex rel. Berger v. Superior Court, 111 Ariz. 524, 534 P.2d 266 (1975). Excluding the period when the summons could not be served on the defendant, the case was tried within the requirements of Rule 8.
At trial evidence was admitted over defendant's objection which showed that at two other stores the defendant had committed acts similar to that charged. The defendant does not seriously contend that the acts did not show a common plan or scheme. He does argue that the proof was not substantial enough to prove the other crimes.
The evidence showed that the defendant and two accomplices started out together. They had agreed on a scheme to steal merchandise from stores and return the merchandise to the same stores as a return item for a refund. One of the accomplices testified to the method used that day at two other stores before the case at issue. There was substantial...
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State v. Rose
...on the part of the prosecution or prejudice to the accused. See State v. McDonald, 117 Ariz. 180, 571 P.2d 677 (1977); State v. Pogue, 113 Ariz. 478, 557 P.2d 163 (1976); State v. Johnson, 113 Ariz. 506, 557 P.2d 1063 (1976); State ex rel. Berger v. Superior Court, 111 Ariz. 524, 534 P.2d 2......
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State v. Million
...because during this time the trial court was without jurisdiction to proceed. We therefore find no Rule 8 violation. State v. Pogue, 113 Ariz. 478, 557 P.2d 163 (1976). But defendant contends that the dismissal by the State was to avoid the provisions of Rule 8 and therefore was in violatio......
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State v. Nixon
...and a new charging document is filed. State v. Mendoza, 170 Ariz. 184, 187, 823 P.2d 51, 54 (1992); accord State v. Pogue, 113 Ariz. 478, 479, 557 P.2d 163, 164 (1976); Johnson v. Tucson City Court, 156 Ariz. 284, 287, 751 P.2d 600, 603 (App. 1988); State v. Gutierrez, 121 Ariz. 176, 179, 5......
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State v. McDonald
...on the part of the prosecution or prejudice to the defendant. State v. Johnson, 113 Ariz. 506, 557 P.2d 1063 (1976); State v. Pogue, 113 Ariz. 478, 557 P.2d 163 (1976); State ex rel. Berger v. Superior Court, 111 Ariz. 524, 534 P.2d 266 (1975); State v. Avriett, 25 Ariz.App. 63, 540 P.2d 12......