State v. Superior Court of Maricopa County, 7803

Decision Date27 February 1963
Docket NumberNo. 7803,7803
Citation379 P.2d 133,93 Ariz. 149
PartiesSTATE of Arizona (City of Tempe), Petitioner, v. SUPERIOR COURT OF MARICOPA COUNTY, State of Arizona, the Honorable George M. Sterling, Judge of Said Court, and Alexander Thomas Cafarella, Respondents.
CourtArizona Supreme Court

James R. Holman, City Attorney, Tempe, for petitioner.

Max M. Klass, Phoenix, for respondent Cafarella.

JENNINGS, Justice.

Alexander Thomas Cafarella (hereinafter called respondent) was convicted in the Tempe Municipal Court on September 4, 1962 of driving an automobile while under the influence of intoxication liquor, and was sentenced to pay a find of $100 or serve 40 days in jail. He immediately paid the fine.

Respondent thereafter retained counsel and filed a notice of appeal in the Tempe Municipal Court on September 8, 1962. At that time the respondent was unable to post a bond on appeal. 1 However, the judge of the Municipal Court forwarded all papers to the superior court. The City of Tempe (hereinafter called petitioner) thereafter filed in the Superior Court of Maricopa County a motion to dismiss the appeal for want of jurisdiction. Upon denial of this motion the petitioner requested of and obtained from this Court an alternative writ prohibiting the superior court from taking any further action of the appeal of the respondent. Petitioner now seeks to have the alternative writ made peremptory.

The petition presents the following question: May a defendant perfect an appeal to the superior court from a conviction in a municipal court without posting the bond provided for in A.R.S. § 22-372?

Prohibition is an appropriate remedy to prevent an inferior tribunal from entertaining an appeal over which it has no jurisdiction. Mendelsohn v. Superior Court, 76 Ariz. 163, 261 P.2d 983 (1953). As an appeal from a criminal conviction is a matter of grace and not of right, a defendant must perfect his appeal in the manner prescribed by law or not at all. Riley v. State, 49 Ariz. 123, 65 P.2d 32 (1937). Therefore, if the filing of an appeal bond by respondent is a prerequisite to the exercise of jurisdiction by the superior court, the writ must issue.

A.R.S. § 22-371 provides:

'A. The defendant in a criminal action may appeal to the superior court from the final judgment of a justice or police court.

'B. The appeal shall be taken within five days after judgment is given by filing a notice of appeal with the justice of the peace or presiding officer of a police court, stating that defendant appeals from the judgment to the superior court in and for the county.'

A.R.S. § 22-372 provides for bond on appeal as follows:

'A. Execution of the sentence shall not be stayed unless defendant executes a bond with sureties, in an amount fixed by the justice of the peace who gave the judgment, but not to exceed three hundred dollars, and files the bond with such officer when approved by him.

'B. The condition of the bond shall be that defendant prosecute his appeal with effect and pay any fine and surrender himself in execution of any imprisonment imposed by the superior court on the appeal.'

The language of the statute indicates that an appeal is taken by filing a notice of appeal in the inferior court. However, the appeal can be given no force or effect until a bond is executed by the defendant. 2 2] The purpose of the requirement is obvious. If a defendant were not required to post such a bond, it is conceivable that the court's trial calendar would be deluged with frivolous appeals wherein the defendant would be free to use every means to delay the proceedings and finally appear or not appear as he saw fit. The court has no other means of insuring that the appeal will be prosecuted with effect and that the defendant will pay any fine or surrender himself in the event any imprisonment is imposed by the superior court after appeal. 3

This decision is consonant with our position taken in In re Davis, 28 Ariz. 312, 236 P. 715 (1925). In that case...

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4 cases
  • State ex rel. Nelson v. Jordan, 9480
    • United States
    • Arizona Supreme Court
    • February 6, 1969
    ...and Section, Art. 6, § 5, we granted a motion for rehearing as a matter of course and without discussion. State v. Superior Court of Maricopa County, 93 Ariz. 149, 379 P.2d 133, on Rehearing 93 Ariz. 351, 380 P.2d 1009. In Lane v. Mathews, 75 Ariz. 1, 251 P.2d 303, although there was no rul......
  • State v. Superior Court of Maricopa County
    • United States
    • Arizona Supreme Court
    • April 24, 1963
    ...prohibiting the superior court from taking further action on the appeal. We granted a peremptory writ of prohibition in State v. Superior Court, 379 P.2d 133 (Ariz.1963). A motion for rehearing was granted upon the urging of the amici curiae that A.R.S. § 22-372 as construed might be uncons......
  • State ex rel. Murphy v. Superior Court In and For Pima County
    • United States
    • Arizona Court of Appeals
    • June 12, 1970
    ...timely notice of appeal is a jurisdictional prerequisite. State v. Heron, 92 Ariz. 114, 374 P.2d 871 (1962); State v. Superior Court of Maricopa County, 93 Ariz. 149, 379 P.2d 133, on rehearing 93 Ariz. 351, 380 P.2d 1009 (1963). The word 'filing' as used in A.R.S. § 22--371, means acquisit......
  • Tom Maxwell Realty, Inc. v. Jennings, 7665
    • United States
    • Arizona Supreme Court
    • February 27, 1963
    ... ... S. C. JENNINGS, Appellee ... Supreme Court of Arizona, In Banc ... Feb. 27, 1963 ... Superior Court ...         Appellant was ... 'A. No person shall practice law in this state unless he is an active member of the state bar in ... Jr., Judge of the Superior Court of Mohave County ... ...

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