State v. Rendel
Decision Date | 26 September 1972 |
Docket Number | No. 1,CA-CR,1 |
Citation | 18 Ariz.App. 201,501 P.2d 42 |
Parties | STATE of Arizona, Appellee, v. Carson Duane RENDEL, Appellant. 379. |
Court | Arizona Court of Appeals |
John V. Riggs, Tempe, for appellant.
This appeal is from a judgment of guilt and sentence filed on January 6, 1971, following a jury trial and verdict finding the defendant (appellant) guilty of three felonies involving the possession of three different stolen motor vehicles (A.R.S. §§ 28--1423, 13--138, 13--139 and 13--140).
The defendant on appeal does not question the sufficiency of the evidence to sustain his conviction therefore the facts are not in dispute. The defendant and Johnny Charbonneau entered into an agreement to procure motor vehicles illegally for the purpose of dismantling them in order to sell the parts. The three counts of the amended information involve three such motor vehicles: a 1969 Ford Galaxie, a 1969 Chevrolet pickup truck and a 1970 Chevrolet Custom Cab. Between March 22 and 24, 1970, these vehicles were illegally acquired by the partners and taken to a warehouse for the purpose of dismantling them. Unbeknown to the defendant and Charbonneau, police officers had the warehouse under surveillance and observed at least one of the stolen vehicles being taken into the warehouse. The officers were stationed close enough to the warehouse to hear the banging of mental inside. On the basis of what they had observed and heard, one of the police officers obtained a search warrant from a justice of the peace on the evening of March 25th. It was executed the next morning, with the arrest of the defendant and Charbonneau inside the warehouse. The remains of the three vehicles, described in the information, were also found and identified inside the warehouse. Following a jury trial, the defendant was found guilty on three counts and the trial judge sentenced him to prison in a manner which will be more fully set out hereafter.
The defendant raises three questions on appeal. They are:
1. Was the sentence imposed void?
2. Did the Justice of the Peace have jurisdiction to issue the Search Warrant, was there probable cause and did the magistrate find probable cause?
3. Should the Court have granted appellant's Motion for Discovery of the accomplice's depositions at the preliminary hearing?
The first question is based on a mistake made by the trial judge in sentencing the defendant, which was corrected by the judge within minutes of its occurrence. The record shows the following situation:
'I don't know quite how to say this, but frankly I don't think you have much respect for the law, particularly while you had one charge pending against you you went out and committed other crimes; and this has influenced me in making my decision.
'Count II, I am going to sentence you to serve not less than two nor more than three years in the State Prison, sentence is to run consecutively on Count I.
'As punishment on Count III, I am going to sentence you to not less than two nor more than three in the State Prison; and that sentence is to run consecutively with the sentence of Count I and Count II.'
Appellant was informed of his right to appeal and several other pending charges were dismissed with prejudice. Appellant then stated:
Do you want to announce your Notice of Appeal right here in open court?
'(Whereupon, the defendant was sworn by the Clerk as to the truth of the Certificate.)
Counsel for the State then inquired:
'I want to vacate what I have already said about a sentence and start over again.
1
'On Count II, you serve two to three years in the State Prison, to run consecutively after you have served your term under Count I.
'Count III, I sentence you to serve two to three years consecutively; that is after you served your term on Count II.
'The first one begins after you have served the sentence by Judge Rozar on 62211.'
Appellant maintains that the presentation of his notice of appeal to the trial judge, who in turn physically handed it to the deputy clerk, divested the court of jurisdiction thereby voiding the corrected sentence. We do not agree.
It is a well settled law that the proper filing of a notice of appeal from a judgment of conviction deprives the trial court of jurisdiction in all matters not in furtherance of the appeal. Application of Lopez, 97 Ariz. 328, 400 P.2d 325 (1965); State v. Churton, 9 Ariz.App. 16, 448 P.2d 888 (1968). However, for a notice of appeal to have this result it must be timely filed in accordance with Rule 350, Rules of Criminal Procedure, 17 A.R.S., which reads as follows:
As we have seen, appellant's handwritten notice of appeal was handed to the trial judge, who in turn ordered that it be filed. Appellant did not request its immediate filing, and no notation of filing was made on the document either by the judge or his deputy clerk at that time. The file stamp of the Clerk of the Superior Court, indicating filing, is dated the following day, December 30, 1970. Our Supreme Court held in State v. Johnson, 78 Ariz. 211, 277 P.2d 1020 (1954) that compliance with Rule 350 is the exclusive method for perfecting a criminal appeal, and that notice given in open court of an intention to file a written appeal is insufficient compliance with the rule. In our opinion the handing of the written notice of appeal to the judge, even accompanied by an order that it be filed, is equally insufficient, since it must be actually filed with the clerk of court. It was not actually filed with the clerk until the following day, December 30.
Furthermore, appellant's notice purports to appeal from the 'final judgment of conviction', in accordance with A.R.S. § 13--1713. In criminal matters, the judgment is complete, valid and appealable only when it is orally pronounced in open court And entered on the clerk's minutes. State v. Johnson, 108 Ariz. 116, 493 P.2d 498 (1972); State v. Dowthard, 92 Ariz. 44, 373 P.2d 357 (1962), cert. denied 372 U.S. 920, 83 S.Ct. 735, 9 L.Ed.2d 726; Willmon v. State ex rel. Eyman, 16 Ariz.App. 323, 493 P.2d 125 (1972); State v. Quinn, 10 Ariz.App. 552, 460 P.2d 658 (1969). The record shows that no order was entered in the clerk's minutes until after the corrected sentence was pronounced. Until that time there was no 'final judgment' from which an appeal would lie, and in such circumstances appellant's notice of appeal, even if regarded as filed with the clerk of court, could not operate to divest the trial court of jurisdiction to correct its sentence.
Appellant also maintains that the trial court's corrected sentence should not be permitted to stand because its pronouncement was an act of 'vindictiveness' against appellant for noticing his intent to appeal, citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Pearce is clearly distinguishable on the facts from the case at bar in that it involves a second harsher sentence following a second trial which resulted from an The Arizona Supreme Court has stated that the trial court has inherent power to modify its own judgments and orders in criminal cases unless jurisdiction has been terminated by appeal. Skinner v. Superior Court, 106 Ariz. 287, 475 P.2d 271 (1970); Belcher v. Superior Court, 105 Ariz. 461, 466 P.2d 755 (1970); Condos v. Superior Court, 29 Ariz. 186, 239 P. 1032 (1925).
appeal; such is not the...
To continue reading
Request your trial- State v. Whitman
-
Kulas v. Valdez
...administration of antipsychotic drugs. Judge Hantman could have revised his order to express such an intent. State v. Rendel, 18 Ariz.App. 201, 206, 501 P.2d 42 (Ariz.Ct.App.1972). Until he did so, the order, not his unexpressed intent, governed. Id. Effective January 1, 1997, Ariz. R.Crim.......
-
State v. Million
... ... Until this case it was consistently held that once an appeal was perfected the trial court lost jurisdiction in the case and could do nothing other than take care of matters "in furtherance of the appeal". Application of Lopez, 97 Ariz. 328, 400 P.2d 325 (1965); State v. Rendel, 18 Ariz.App. 201, 501 P.2d 42 (1972). Here the chronology of events was: (1) perfecting of appeal by the state after a disappointing ruling by the judge; (2) a state requested dismissal of the action by the trial court over defendant's objection. I consider dismissing the case after perfection ... ...
-
State v. Wedding
... ... These contentions have no merit ... This case presents facts similar to those in State v. Rendel, 18 Ariz.App. 201, 501 P.2d 42 (1972). There the court imposed sentence on the defendant, and counsel asked for clarification about the sentence. The court on reflection said that it had incorrectly pronounced the sentenced and orally pronounced a different sentence. This court noted that the ... ...