State v. Toulouse
Decision Date | 18 April 1979 |
Docket Number | No. 4517,4517 |
Citation | 594 P.2d 529,122 Ariz. 275 |
Parties | The STATE of Arizona, Appellee, v. Allan L. TOULOUSE, Appellant. |
Court | Arizona Supreme Court |
O'Connell, Hecker & Phillips by Thomas M. Pace, Phoenix, for appellant.
Defendant, Allan L. Toulouse, pursuant to a written plea agreement, entered a plea of guilty to the charge of kidnapping while armed with a gun. A.R.S. § 13-491(A), (C) and (D). * He was sentenced to the Arizona State Prison for not less than five nor more than twelve years. He now appeals. We have jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.
We are asked to decide the following questions on appeal:
1. Did defendant waive his right to appeal alleged defects in the preliminary hearing by pleading guilty to the information?
2. Did the prosecution properly allege the prior convictions?
3. Is the sentence excessive?
The facts necessary for a determination of this matter on appeal are as follows. On 29 January 1978, defendant and one Karn checked out of the San Carlos Hotel in Phoenix, Arizona, and were driven to the bus depot in the hotel's van. When they reached the depot, they informed the driver that they had guns and commanded him to drive them to Tucson. They left him bound and gagged in a motel in Tucson. Defendant and Karn were apprehended in Wilcox, Arizona.
After a partial preliminary hearing, defendant waived further proceedings, was held to answer, pled guilty to the charge, and was sentenced. From the plea and sentence he appeals.
The caption of the complaint read "Armed Kidnapping," and the complaint stated that defendant had "kidnapped MIKE ARTHUR FINNEY while armed with a gun, all in violation of A.R.S. Sec. 13-491 A, C and D * * *."
At the preliminary hearing, after one witness, the victim, had testified, the defendant signed a waiver of preliminary hearing which stated in part, "I understand that I am charged with the crime of Armed Kidnapping, A.R.S. § 13-491 * * *." The order holding the defendant to answer indicated that defendant was charged with "a Felony, to-wit ARMED KIDNAPPING." The information alleged that the defendant "Kidnapped Mike Arthur Finney while armed with a gun, all in violation of A.R.S. § 13-491 A, C and D * * *." Subsection D reads as follows:
The plea agreement read:
"The Defendant agrees to plead guilty to kidnapping while armed with a gun, a Felony, A.R.S. § 13-491-A, C, and D * * * committed on or about 29 January 1978."
There is no question that the defendant knew the nature of the crime to which he was pleading guilty. He had not been misled and was not confused. There was no prejudice to the defendant in any defect in the preliminary hearing. We find no error.
There is, however, another reason why defendant may not prevail. Our rules of criminal procedure require that defects in the charging document be raised by motion prior to trial or be precluded. Rule 13.5(c) of the Rules of Criminal Procedure, 17 A.R.S., reads as follows:
And Rule 16.1(c) reads:
These rules are in accord with the general case law that a plea of guilty is a waiver of all non-jurisdictional defenses. State v. Canaday, 116 Ariz. 296, 569 P.2d 238 (1977); State v. Hansen, 105 Ariz. 368, 464 P.2d 960 (1970).
Prior to his plea of guilty, defendant raised no question regarding the insufficiency of the complaint, preliminary hearing or the order holding him to answer. His voluntary plea of guilty waives any non-jurisdictional defects in the proceedings prior to the plea. Canaday; Hansen, supra.
The State filed an allegation of a prior conviction in Wyoming for possession of marijuana. The Arizona drug statute is contained in Title 36, Ch. 9, A.R.S. §§ 36-1001, et seq., and is a part of Title 36, Public Health and Safety. The crime to which defendant pled guilty is defined in our criminal code, Title 13, 5 A.R.S. Both Title 36 and Title 13 contain enhanced punishment statutes, A.R.S. § 36-1002.05(B) and §§ 13-1649 and 1650. While admitting that the allegation of a prior conviction had been withdrawn as a result of the plea bargain, defendant contends that the allegation of the prior conviction was coercive and that since the crime defendant committed in Wyoming would be a crime in Arizona under Title 36, the enhanced punishment provisions of Title 13 may not be used to enhance punishment for a crime under Title 13. Defendant ignores the plain language of the statutes in Title 13:
"A. A person who, having been previously convicted for petty theft, receiving stolen property, shoplifting, contributing to the delinquency of a minor, an...
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