State v. Sheppard
| Decision Date | 19 November 1965 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 2 Ariz.App. 242,407 P.2d 783 |
| Parties | STATE of Arizona, Appellee, v. David Leonard SHEPPARD, Appellant. 22. |
| Court | Arizona Court of Appeals |
Allen L. Feinstein, Phoenix, for appellant.
Darrell F. Smith, Atty. Gen., by James S. Tegart, Asst. Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., for appellee.
On September 28, 1964, a complaint was filed with the Justice of the Peace charging appellant, hereafter designated as defendant, with the crime of burglary. One day later defendant was brought before said Justice of the Peace and informed of the charge against him and of his right to the aid of counsel. At this time a preliminary examination on the charge was set for 9:00 A.M. October 5, 1964, and the defendant posted bail bond and was released thereon. On October 5th he was brought before the court with competent counsel and waived preliminary examination. This same counsel represented defendant throughout the proceedings in the Superior Court but is not counsel on this appeal. The Justice of the Peace held him to answer said charge in the Superior Court.
Thirty one days later the County Attorney filed an information in the Superior Court charging the defendant with the crime for which he was held to answer. On November 17, 1964, he appeared at arraignment with his attorney and entered a plea of not guilty to the charge. Two days later, on November 19, again represented by counsel, defendant changed his plea to guilty. December 2, 1964 was the time fixed for judgment and sentence and on that date he was adjudged guilty and sentenced to a term in the state prison.
Defendant was granted leave to file a delayed appeal herein and in this appeal contends that under Rules 80 and 236 of the Rules of Criminal Procedure, 17 A.R.S. he is entitled to a dismissal of the information and a reversal of the judgment on the grounds that when the thirty days expired without the filing of an information the court lost all jurisdiction except to dismiss the action.
The relevant part of Rule 80 provides that when the defendant has been held to answer the County Attorney shall within thirty days file an information charging the commission of the offense. Rule 236 provides:
(Emphasis supplied).
Rule 238 must also be considered which provides:
'An order for the dismissal of the prosecution, as provided in Rule 236, is a bar to any other prosecution for the same offense if it is a misdemeanor, but it is not a bar if the offense is a felony, provided no such prosecution shall be instituted without the order of the court in which the action was pending.'
An analysis of these rules would indicate that the thirty day requirement for the filing of the information does not go to the basic jurisdiction of the Court so as to void everything that might follow as contended by the defendant. The rules are basically to afford the defendant a speedy disposition of the charges against him. McConnell v. Newman, 87 Ariz. 381, 351 P.2d 657 (1960).
Although the information is filed late it is not rendered void, but only subject to dismissal upon motion duly made unless good cause to the contrary is shown by affidavit. Sheridan v. Superior Court, 91 Ariz. 211, 370 P.2d 949 (1962). Defendant made no move to dismiss the proceedings but on the contrary withdrew a plea of not guilty theretofore made and entered a plea of guilty. A defendant may effectively waive the requirements of these rules and, in fact, may find it to his advantage to do so. Defendant's plea of guilty to the information, entered upon the advice of competent counsel, was a weiver of the irregularity of the day late filing since we have already determined such defect is nonjurisdictional. State v. Murphy, 97 Ariz. 14, 396 P.2d 250 (1964). Again, in State v. Sparks, 97 Ariz. 358, 400 P.2d 586 (1965) a technical defect was present in the information in the form of a misjoinder of offenses and at page 360 of the Arizona Reports the Supreme Court quoting from Ex parte Harrison, 55 Ariz. 347, 101 P.2d 457 (1940) said:
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Buccheri, Application of
... ... § 12--120.21, subsec. A(4), there is no statute vesting this court with authority to make such writs returnable to the superior court. See State v. Sheppard, 2 Ariz.App. 242, 407 P.2d 783 (1965). As indicated in Sheppard, this court does not have proper facilities for conducting facttaking ... ...
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Morrison v. Superior Court of Coconino County
... ... an order to this effect on November 7, 1969, and we are now issuing this opinion in view of the importance of the question to the bar of this state, and in further view of the fact that prior to the creation of a second department of Division One of the Court of Appeals, [10 Ariz.App. 602] ... Consistent with this view, see State v. Sheppard, 2 Ariz.App. 242, 245, 407 P.2d 783, 786, cited in State v. Court of Appeals, Supra, at 101 Ariz. 168, 416 P.2d 601 ... We thus ... ...
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Crouch v. Justice of Peace Court of Sixth Precinct
... ... '1. Original jurisdiction of habeas corpus, and quo warranto, mandamus, injunction and other extraordinary writs to state officers ... [7 Ariz.App. 462] ... '3. Appellate jurisdiction in all actions and proceedings except civil and criminal actions originating in ... Illustrative of these decisions are, State v. Mileham, 1 Ariz.App. 67, 399 P.2d 688 (1965); State v. Sheppard, 2 Ariz.App. 242, 407 P.2d 783 (1965) and State v. Nixon, 4 Ariz.App. 407, 420 P.2d 979 (1966). In Mileham and Nixon, the Court of Appeals held that ... ...
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State v. Court of Appeals, Division Two
... ... § 12--120.21 (1964), limited to original jurisdiction of habeas corpus and jurisdiction to issue 'other writs necessary and proper to the complete exercise of its appellate jurisdiction.' There being no appellate jurisdiction sought to be exercised, see State v. Sheppard, 2 Ariz.App. 242, 407 P.2d 783, the alternative writ of prohibition heretofore issued is made permanent ... STRUCKMEYER, C.J., BERNSTEIN, V. C.J., and ... ...