State v. Stewart
| Decision Date | 07 April 1966 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 412 P.2d 860,3 Ariz.App. 178 |
| Parties | STATE of Arizona, Appellee, v. Windell Wayne STEWART, Appellant. 40. |
| Court | Arizona Court of Appeals |
Darrell F. Smith, Atty. Gen., by Gary K. Nelson, Asst. Atty. Gen., for appellee.
Axline & Johnson, by Raleigh W. Johnson, Holbrook, for appellant.
This is an appeal from a judgment and sentence upon a plea of guilty to the crime of receiving stolen property (Navajo County Superior Court Number 3303), and a judgment and sentence upon a plea of guilty to the charge of escape from a county jail (Navajo County Superior Court Number 3319). Defendant received a sentence of four to four and one-half years on each count to run concurrently.
The facts necessary for a determination of this matter on appeal are substantially as follows:
RECEIVING STOLEN PROPERTY (No. 3303)
The defendant, Windell Wayne Stewart, was charged in an information filed on 22 December, 1964, with the crime of burglary in the first degree. This information was amended on 23 December, 1964, to allege a prior felony conviction. On 18 January, 1965, the defendant filed an 'AFFIDAVIT FOR CHANGE OF JUDGE'. The affidavit stated that the defendant:
'does believe that on account of the bias and prejudice of the resident judge of the above entitled court he cannot obtain a fair and impartial trial * * * he respectfully requests, pursuant to Arizona Revised Statutes, Section 12--409, that said resident judge, the Honorable Melvyn T. Shelley, request a judge of the Superior Court of another county to preside at the trial of this action * * *.'
The affidavit was signed by the defendant, but was not accompanied by a certificate of good faith of the counsel of record as required by Rule 197, Rules of Criminal Procedure, 17 A.R.S. Defendant was represented, at the time, by counsel other than counsel appointed to represent defendant on appeal.
Judge Shelley called the Honorable Robert E. McGhee, Judge of the Superior Court, in and for the County of Gila, to hear further proceedings in this matter.
Thereafter, two trials were held on the charge of burglary in the first degree. The first trial commenced on 4 February, 1965, and a mistrial was ordered because one of the jurors had been observed asleep during the trial. On 20 April, 1965, a second trial was held, Judge McGhee presiding, and as a result of the jury being unable to reach a verdict, a second mistrial was declared.
Thereafter, on or about 7 May, 1965, the defendant appeared before Judge Shelley and 'waived' his affidavit. The burglary information was amended to read as follows:
'The said Windell Wayne Stewart, on or about the 6th day of December, 1964, and before the filing of this information in the County of Navajo, State of Arizona, then and there being, did then and there, unlawfully and feloniously receive personal property knowing the same to be stolen, said property being of a value in excess of $100.00 the same being the property of S. R. Glidewell, in violation of A.R.S. 13--621.'
The allegation as to prior offense was dismissed, and the defendant then entered a plea of guilty to the information as amended.
ESCAPE FROM COUNTY JAIL (No. 3319)
During the time defendant was being tried for the crime of burglary, he was detained in the Navajo County Jail. The door to his cell was left open, and the defendant left the jail on the morning of 7 February 1965. He took with him all of his personal effects. The defendant returned to the County Jail that evening, and was returned to custody. The defendant was charged on 11 February, 1965, with the crime of escape from the County Jail in violation of 13--393, A.R.S., and a prior felony conviction was alleged. On or about 7 May, 1965, the defendant appeared before Judge Shelley, Superior Court of Navajo County, and after the allegation of prior felony conviction had been stricken from the information, entered a plea of guilty to the crime of escape. SENTENCE (Numbers 3033 and 3319)
On 21 May, 1965, Judge McGhee imposed sentence in both matters--receiving stolen property (Number 3303) and escape from the County Jail (Number 3319). The court advised the defendant that he had 60 days from the pronouncement of sentence to file any motion for appeal that he might wish. The court also advised defendant that he had the right to file his own motion for appeal without an attorney, or he could have an attorney prepare same, but restated that any motion must be filed within 60 days from imposition of sentence. While not required under our law, such advice is recommended by this Court. Defendant timely filed his notice of appeal, together with an affidavit of financial inability, and counsel was appointed to represent the defendant in relation to this appeal.
The first question raised by the defendant Concerns the sufficiency of the information charing the crime of receiving stolen property. The Attorney General has confessed error, and although we are not bound by a confession of error in a criminal case, State v. Rogers, 2 Ariz.App. 232, 407 P.2d 773 (1965), we agree with the Attorney General's position.
The information stated that the defendant,
'did then and there wilfully, unlawfully and feloniously receive personal property knowing the same to be stolen, said property being if a value in excess of $100.00.'
The Arizona Supreme Court has held that in any prosecution for the offense of receiving stolen property,
'the property must be described with certainty and accuracy and with sufficient particularity to enable the court to determine that such property is the subject of larceny, to advise the accused with reasonable certainty of the property meant and enable him to make the needful preparations to meet such charge at the trial, to enable the jury to determine whether the stolen property proved to have been received was the same as that upon which the indictment was founded, and to enable the defendant to plead the verdict in bar of a subsequent prosecution for unlawfully receiving the same articles or goods.' State v. Kuhnley, 74 Ariz. 10 at 15, 242 P.2d 843, at 846 (1952).
Since the information does not describe the property with particularity it does not state a public offense. Therefore, the plea of guilty will not be permitted to stand. State v. Corvelo, 91 Ariz. 52, 369 P.2d 903 (1962), State v. Rogers, supra.
We next concern ourselves with the sufficiency of the affidavit for change of judge. The affidavit filed by the defendant in case Number 3303 (the burglary count) was filed pursuant to 12--409 A.R.S. This is an affidavit for change of judge which is used in civil actions. 12--409 states in part as follows:
'CHANGE OF JUDGE; GROUNDS; AFFIDAVIT
To continue reading
Request your trial
-
State v. McCormick, 2
...In this jurisdiction, we follow the latter practice and do not consider ourselves bound by the confession of error. State v. Stewart, 3 Ariz.App. 178, 412 P.2d 860 (1966); State v. Rogers, 2 Ariz.App. 232, 407 P.2d 773 (1965). Since under the holding of State v. Superior Court, etc., 102 Ar......
-
State v. Mallory
...and does not charge a public offense a plea of guilty thereto will not be permitted to stand on appeal. See also State v. Stewart, 3 Ariz.App. 178, 412 P.2d 860 (1966), and State v. Betts, 5 Ariz.App. 256, 425 P.2d 444 (1967), both of which cases discuss the receiving stolen property At sta......
-
State v. Sanchez
...a cognizable offense under Arizona law. However, we are not required to accept the state's confession of error. State v. Stewart, 3 Ariz.App. 178, 180, 412 P.2d 860, 862 (1966). At the change of plea proceeding, defendant admitted facts sufficient to establish his guilt of possession of nar......
-
State v. Campos
...v. State, 269 Ala. 49, 110 So.2d 298 (1959); Kyler v. State, supra. See also Annot., 99 A.L.R.2d 813, 822 (1965); State v. Stewart, 3 Ariz.App. 178, 412 P.2d 860 (1966). We paraphrase a statement in Edwards v. United States, supra, to the effect that the charge simply alleges that the defen......