State v. Prevost
| Decision Date | 15 December 1977 |
| Docket Number | No. 1,CA-CR2492,1 |
| Citation | 118 Ariz. 100,574 P.2d 1319 |
| Parties | STATE of Arizona, Appellee, v. K. W. PREVOST, Appellant. |
| Court | Arizona Court of Appeals |
The major issue in this appeal deals with whether the trial court properly refused to credit presentence incarceration time and the effect of a federal prison sentence on defendant's state sentence.
On July 6, 1976, a police search pursuant to a warrant revealed approximately sixteen balloons of heroin concealed upon the person of appellant-defendant, K. W. Prevost. The defendant was arrested and charged with possession of a narcotic drug for sale in violation of A.R.S. §§ 36-1001 and 36-1002.01. Subsequently, the defendant was released on his own recognizance.
Approximately three days after defendant's arrest, Phoenix police officers offered to dismiss these charges if the defendant provided information leading to either: five arrests, each involving three to five ounces of heroin; ten arrests involving smaller amounts of heroin; or the seizure of a kilo of heroin. It was also understood that the defendant was to waive a preliminary hearing as part of the agreement. (Defendant's attorney was a party to this agreement.) This offer was withdrawn by the police on September 7, 1976 because of the defendant's failure to perform.
On October 15, 1976 the defendant was incarcerated as a result of an unrelated federal charge. On November 10, 1976, defendant's trial on the state charges began in the superior court of Maricopa County; on November 12, 1976, the trial judge revoked defendant's release on his own recognizance because of the federal arrest. A jury found the defendant guilty of possession of a narcotic for sale on November 15, 1976. On December 27, 1976 the defendant was sentenced to seven years' imprisonment on the federal charges. On December 28, 1976 the defendant was sentenced on the state conviction to not less than fourteen nor more than fifteen years' imprisonment in the Arizona State Prison to commence from the date of delivery of the defendant to the state by federal authorities. This appeal is taken from the judgment and sentence imposed by the state court.
The defendant raises several issues on appeal: (1) whether the refusal to grant his motion for continuance based upon a void waiver of the preliminary hearing or the waiver itself constitutes fundamental error; (2) whether the trial court erred in failing to credit the defendant with presentence incarceration time; (3) whether the trial court erred by sentencing the defendant to an unlawful, ambiguous, and excessive sentence; (4) whether there was insufficient foundation for the opinion of the state's expert witness; and (5) whether the trial court erred in refusing to grant defendant's motion in limine and objection to testimony by a Phoenix police officer.
On appeal, the defendant does not dispute the fact that he failed to carry out his part of the agreement to act as a police informant, but rather contends that the police were without authority to enter such negotiations. As a result, he alleges that the waiver of his preliminary hearing was void and the denial of his motion to continue based upon absence of a preliminary hearing constitutes reversible error. We disagree.
Although there is some question as to the authority of the police to negotiate with the defendant, it is clear from the record that had he performed his part of the agreement, the agreement would have been carried out.
It is equally apparent that the defendant's attorney was informed of the withdrawal of the agreement two months prior to trial, a sufficient time to enable the defendant to move for a preliminary hearing. However, it was not until the day of trial that his attorney moved for a continuance because a preliminary hearing had not been held and thus defendant's right to discovery had been impaired. The purpose of a preliminary hearing is not to give defendants an opportunity for discovery but to determine probable cause to hold defendant to answer. Any discovery resulting from a preliminary hearing is incidental and not a right of defendant. See, State v. Bojorquez, 111 Ariz. 549, 553-554, 535 P.2d 6, 10-11 (1975). Moreover, if in fact defendant's counsel felt discovery was imperative in this case, he could have utilized Rule 15, Rules of Criminal Procedure.
In some circumstances, failure to provide a preliminary hearing can result in reversible error. See, State v. Essman, 98 Ariz. 228, 403 P.2d 540 (1965). However, under the facts presented here the untimeliness of the request for a continuance and the stated purpose of that request for discovery we find the court did not abuse its discretion in denying the motion for a continuance.
The defendant next contends that he is entitled to 73 days' credit for presentence incarceration. He was incarcerated on October 15, 1976 as a result of an unrelated federal offense and on November 12, 1976 the state trial court revoked his release on his own recognizance. It is necessary to consider separately defendant's detention before and after November 12, 1976.
From October 15, 1976 to November 12, 1976 the defendant was confined solely on federal charges, and he is not entitled to state credit for that detention. Only when the time spent in confinement is due to or arises out of the offense against which credit is claimed does any right to such an allowance occur. See, Umphenour v. State, 535 S.W.2d 579 (Mo.App., 1976); Trigg v. State, 523 S.W.2d 375 (Tenn.Cr.App., 1975). Cf. Wingfield v. Page, 422 P.2d 229 (Okla.Cr., 1966).
From November 12, 1976 until sentence was pronounced by the state trial court on December 28, 1976, defendant was confined for both the state and federal charges. Under certain circumstances, this confinement might result in credit against the state sentence.
The rationale behind giving credit for presentence incarceration is the denial of equal protection that flows to the poor not able to make bail. See, Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); State v. Salazar, 24 Ariz.App. 472, 539 P.2d 946 (1975); State v. Sutton, 21 Ariz.App. 550, 521 P.2d 1008 (1974). There is no absolute right to presentence detention credit, but if the defendant is incarcerated simply because of his inability to make bail due to indigency and the presentence detention plus the sentence imposed exceed the maximum sentence allowed, credit must be given for the presentence detention. Jackson v. State, 530 F.2d 1231 (5th Cir., 1976); Hook v. State, 496 F.2d 1172 (9th Cir., 1974); State v. Maese, 27 Ariz.App. 379, 555 P.2d 348 (1976).
The record before us shows that the defendant's confinement after November 12, 1976 was not based upon his inability to make bail on the state charges. The trial court revoked his release and held him without bond. This is clearly shown in the following excerpt from the trial transcript:
Therefore, since the defendant was not denied presentence release because of indigency but rather was held without bond because he violated the conditions of his release, he is not entitled to any credit towards the state sentence for his incarceration between November 12, 1976 and December 28, 1976.
One day prior to his sentencing on state charges, the defendant was sentenced in federal court to a term of seven years' imprisonment to be served concurrently with any sentence imposed by the state court. The state court sentenced the defendant to not less than fourteen nor more than fifteen years' imprisonment in the Arizona State Prison to begin upon delivery from the federal authorities.
Defendant claims that the state court imposed this sentence because of a mistaken belief that it could not make the state sentence run concurrently with the federal sentence. From this contention, he then argues that the trial court mistakenly believed that as a matter of law it had no choice but to impose a consecutive sentence.
The record shows that the prosecutor did allege that the trial court could not make the state sentence run concurrently while the defendant was confined in a federal institution. This is an incorrect statement of the law. Rule 26.13 of the Arizona Rules of Criminal Procedure and State v. Rhodes, 104 Ariz. 451, 454 P.2d 993...
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