State v. Risher

• Decision Date: 09 January 1978
• Docket Number: No. 3999-PR,3999-PR
• Parties: The STATE of Arizona, Appellee, v. Scott Edward RISHER, Appellant.
• Court: Arizona Supreme Court

Page 453

574 P.2d 453

117 Ariz. 587

The STATE of Arizona, Appellee, v. Scott Edward RISHER, Appellant.

No. 3999-PR.

Supreme Court of Arizona, In Banc.

Jan. 9, 1978.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III and Thomas G. Bakker, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Rudy J. Gerber, Deputy Public Defender, Phoenix, for appellant.

CAMERON, Chief Justice.

Pursuant to Rule 31.19, Rules of Criminal Procedure, 17 A.R.S., we granted the State's petition for review to determine one issue, that is, whether a defendant found guilty of an "open-end" offense (one which may be treated either as a misdemeanor or a felony depending upon the sentence imposed), may be placed on probation for a longer period of time than the maximum sentence for a misdemeanor and still have the offense designated as a misdemeanor upon successful completion of the probationary period.

The facts necessary for our determination of this issue are as follows. The defendant, Scott Edward Risher, was charged with aggravated battery committed upon his wife. A.R.S. § 13-245 provides the punishment for aggravated battery:

"B. Aggravated * * * battery shall be punished by a fine of not less than one hundred nor more than two thousand dollars, or by imprisonment in the county jail not to exceed one year, or both, or by imprisonment in the state prison for not less than one nor more than five years."

Pursuant to a plea agreement, the defendant pled no contest to a charge of aggravated battery, "open-end." At the hearing to determine the voluntariness of the plea, the judge indicated that if probation were granted the offense could be designated a misdemeanor upon successful completion of the probation. After accepting the no contest plea and adjudging him "guilty of the crime of aggravated battery, an open-end offense," the court placed the defendant on five years probation subject to certain conditions, including four months incarceration in the County Jail. The trial court said that if the defendant satisfied all the conditions of probation, the offense would be designated a misdemeanor.

The authority of a trial court to suspend the imposition of sentence and place a criminal offender on probation is provided by A.R.S. § 13-1657:

" § 13-1657. Suspending imposition or execution of sentence; revocation and termination of probation; discharge

"A. If it appears that there are circumstances in mitigation of the punishment, or that the ends of justice will be subserved thereby, the court may, in its discretion, place the defendant upon probation in the manner following:

"1. The court may suspend the imposing of sentence and may direct that the suspension continue for such period of time, not exceeding the maximum term of sentence which may be imposed, and upon such terms and conditions as the court determines, and shall place such person on probation * * *."

As this statute makes clear, probation is not a sentence, but rather a feature of the suspension of imposition of sentence. See, e. g. In re Application of Johnson v. State, 5 Ariz.App. 125, 423 P.2d 896 (1967); State v. Pitts, 26 Ariz.App. 390, 548 P.2d 1202 (1976); State v. Van Meter, 7 Ariz.App. 422, 440 P.2d 58 (1968). However, the Rules of Criminal Procedure, 17 A.R.S., provide:

"The term sentence means the pronouncement by the court of the penalty imposed upon the defendant after a judgment of guilty." Rule 26.1, Rules of Criminal Procedure, 17 A.R.S.

The Comment to this rule states:

" * * * The term sentence as used in this rule does include probation even though in most cases, under Ariz.Rev.Stat.Ann. § 13-1657(A) (Supp.1972), imposition of sentence must be suspended in order to place a person on probation." Comment to Rule 26.1, Rules of Criminal Procedure, 17 A.R.S.

The Court of Appeals in State v. Fuentes, 26 Ariz.App. 444, 549 P.2d 224 (1976), majority opinion adopted by this court in 113 Ariz. 285, 551 P.2d 554 (1976), a case involving Rule 31.3, Rules of Criminal Procedure, 17 A.R.S., which requires notice of appeal to be filed within 20 days "after the entry of judgment and sentence," held for purposes of Rule 31.3, that the term "sentence" includes the granting of probation. We have no quarrel with this holding so long as it is understood that it is limited to the determination of the time for appeal. Except for the purpose of commencing the time within which a person must appeal, probation is not a sentence and is granted only after the imposition of sentence is suspended. Probation not being a sentence, the court is not required to determine whether the offense is a felony or a misdemeanor at the time the imposition of sentence is suspended and probation granted, but may defer that determination until after completion of the terms of probation or, should the defendant violate the terms of probation, after probation is revoked.

It is contended, however, that the only way an open-end offense may be designated a misdemeanor is by the imposition of a misdemeanor sentence, i. e. a fine or jail term. We have stated with reference to an open-end offense:

"* * * it remains a felony unless and until a court in its discretion imposes a sentence of imprisonment in the county jail for not to exceed one year. * * * " State v. Vineyard, 96 Ariz. 76, 79, 392 P.2d 30, 33 (1964). Cf. State v. Raffaele, 113 Ariz. 259, 550 P.2d 1060 (1976) and State v. Gutierrez, 82 Ariz. 21, 307 P.2d 914 (1957), cert. den. 355 U.S. 17, 78 S.Ct. 79, 2 L.Ed.2d 23.

According to one interpretation of this language, any time probation is granted and successfully completed a judge would be required to then impose some fine or jail term upon the rehabilitated offender in order to confer misdemeanant status upon him. We cannot believe the legislature intended such a requirement to flow from its enactment of A.R.S. § 13-103(B).

In Vineyard the crime involved was second degree rape. Probation was not a factor in that case, nor was it a factor in Raffaele or Gutierrez. Once the possibility of probation is taken into account, the proper inference to be drawn from our language in Raffaele, Vineyard and Gutierrez is that an open-end offense shall be deemed a felony unless and until otherwise designated.

It is finally contended, however, that pursuant to A.R.S. § 13-1657, the court may not grant a term of probation longer than the maximum sentence for a misdemeanor and still treat the offense as a misdemeanor. We do not agree. A.R.S. § 13-1657 provides that the court may suspend sentence and place the defendant on probation for a period "not exceeding the maximum term of sentence which may be imposed." This provision clearly suggests that when the offense is an open-ended one, the trial court may place the defendant on probation for a period equal to the longest prison term the offender could receive under the particular statute. This does not mean that in doing so the offense is necessarily classified as a felony. We agree with Chief Judge Froeb's dissent in the opinion of the Court of Appeals:

"A.R.S. § 13-1657, as amended, (Supp.1976) operates to do nothing more than fix a...