State v. Veres
| Decision Date | 29 January 1968 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 7 Ariz.App. 117,436 P.2d 629 |
| Parties | STATE of Arizona, Appellee, v. William J. VERES, Appellant. 102. |
| Court | Arizona Court of Appeals |
O'Reilly, Pollock & Pizzo, by Gerald A. Pollock, Charles S. Pizzo, Phoenix, for appellant.
This appeal relates to a judgment of guilt as to two counts, each charging the uttering and passing of an insufficient funds check, and to the sentence in connection therewith. The defendant was initially granted probation and more than two years later the probation was revoked whereupon he was sentenced. The appeal presents a question as to the timeliness of the appeal from the judgment of guilt. There are the usual questions relating to an appeal after a trial and the unusual question relating to the right of the Superior Court to dismiss the first appeal.
On 29 December 1962, the defendant entered into a lease arrangement for a trailer making his deposit thereon by check. On 2 January 1963, he entered into a lease arrangement with the same party for a truck-tractor to pull the trailer, again making his deposit by check. The checks were presented to the bank and were not honored due to insufficient funds. The vehicles were not returned. On 30 January 1963 the defendant was charged with a two court complaint in the Justice Court, one count charging grand theft (embezzlement) of the trailer and one count charging grand theft (embezzlement) of the truck-tractor. On the same day in the same Justice Court, he was charged with another two count complaint, each count relating to one of the checks. All counts were alleged to be felonies. The applicable law in relation to insufficient funds checks was then set forth in A.R.S. Section 13--316, Chapter 109 of the Laws of 1960. This section has been further amended.
At all times material to this appeal the defendant was represented by counsel of his own choice. They will be designated as attorney no. 1, attorney no. 2 and attorney no. 3. Attorney no. 1 appeared before the Justice of the Peace with the defendant and the preliminary hearing was waived as to all four counts. The defendant was bound over and released on bond. On 1 March 1963, Information No. 41696 was filed in the Superior Court charging the two counts of grand theft (embezzlement) and Information No. 41697 was filed charging the two check counts. Pleas of not guilty were entered. The sixty day trial period was waived. The defendant was continued on bond. The two criminal cases were consolidated for trial. We are not concerned in this opinion with the ground theft (embezzlement) charges in view of the fact that the jury returned not guilty verdicts with reference to both of these counts when the matter eventually came for trial.
The consolidated causes were first called for trial on Friday, 24 May 1963. The Superior Court Judge then presiding was a Judge other than Judge Stanford. The minutes of 24 May 1963 recite, in part:
'Counsel exercise their pre-emptory challenges, the jury list is stricken and the following twelve persons were duly selected and sworn to act as trial jurors in this cause: * * *
'The jury is admonished and Court stands at recess until 9:30 A.M. Tuesday May 28, 1963.'
As ordered, the consolidated causes were again called on 28 May 1963 and the minutes for that date recite, in part:
'* * * Defense counsel moves for motion to continue on the grounds and reasons defendant is not present and whereabouts of defendant is unknown to defense counsel.
'State objects to continuance.
'ORDER declaring mis-trial in this case and referring the case to the Court Administrator for further disposition and setting.
'State objects to granting of mis-trial.
The consolidated causes were next called for trial on 27 December 1963 after one continuance had been granted at the request of the State and one had been granted at the request of the defendant. The defendant testified during this two day trial. The jury returned verdicts finding the defendant guilty as to both check counts and not guilty as to both grand theft (embezzlement) counts. The minute entry judgment of guilty being controlling, State v. Dowthard, 92 Ariz. 44, 373 P.2d 357 (1962); State v. Chance, 4 Ariz.App. 38, 417 P.2d 551 (1966); State v. Arce, 6 Ariz.App. 241, 431 P.2d 681 (1967), we quote the minutes of 15 January 1964:
'IT IS ORDERED denying Motion for New Trial IT IS THE JUDGMENT of this Court that you, Wm. J. Veres, are guilty of the crime of Drawing Check on Insufficient Funds Account, Two Counts.'
The same minutes disclose that the defendant was placed on probation for a five year period.
A notice of appeal was timely filed. On 31 March 1965, a written motion to dismiss the appeal was filed in the Superior Court by attorney no. 1, who had represented the defendant at all times up to this point in the proceeding, and a different Superior Court Judge signed the order of dismissal.
In the spring of 1966, Judge Stanford instituted proceedings in relation to a revocation of probation. At these proceedings the defendant was represented by attorney no.
2. On 11 May 1966, the issues were resolved against the defendant, his probation was revoked and the minutes reflect the following sentence:
'IT IS THE SENTENCE OF THIS COURT that you, WILLIAM J. VERES, be imprisoned in the Arizona State Prison at Florence, Arizona, for a period of not less than two (2) years nor more than two and one-half (2 1/2) years, commencing this date.'
On the following day, attorney no. 3, who continues to represent the defendant in connection with this appeal, filed a notice of appeal, in part, as follows:
'COMES NOW the Defendant, WILLIAM JAMES VERES, and gives this Notice of Appeal from the judgment of guilty and from the conviction in this cause, from an order denying a motion for new trial, and from an illegal and excessive sentence.'
The defendant urges that he did not consent to the dismissal of the first appeal. The record does not contain any proof that attorney no. 1 acted improperly.
The defendant urges that there was no jurisdiction in the Superior Court to dismiss the appeal. The general rule is that once an appeal has been perfected, the Superior Court loses jurisdiction to enter any orders except those in aid of the appeal. There are exceptions and we hold that 'Rule 360. Record on appeal
under the circumstances hereinafter set forth, the Superior Court did have jurisdiction to dismiss the appeal. The record before us does not disclose that the 1964 appeal was ever lodged in the Arizona Supreme Court. In 1964 the Court of Appeals had not come into being. The Court of Appeals does not take judicial notice of Arizona Supreme Court records of the nature in question. The reporter's transcript of the 1963 trial was not filed with the Clerk of the Superior Court until 24 June 1966, this being after the filing of the 1966 notice of appeal. Criminal Rule 360, 17 A.R.S. provides, in part:
The Rules of Civil Procedure, 16 A.R.S., have been applied in criminal cases in addition to the express reference to the Civil Rules which is contained in Criminal Rule 272, this rule reading as follows:
'The law of evidence and the law relating to instructions to the jury in civil actions shall apply to criminal actions except as otherwise provided.'
Illustrative of the application of Civil Rules in criminal cases are the cases of State v. Lopez, 96 Ariz. 169 at 172, 393 P.2d 263, at 265 (1964), and Campbell v. Thurman, 96 Ariz. 212 at 214, 393 P.2d 906, at 908 (1964). In our opinion it was appropriate to apply Civil Rule 73 in resolving the question now before us. This rule, in part, provides:
'73(d) When perfected.
'* * * If an appeal has not been docketed in the supreme court, the parties, with the approval of the superior court, may dismiss the appeal by stipulation filed in that court, or that court may dismiss the appeal upon motion and notice by the appellant.
'73(d) When perfected.
'* * * The appeal is perfected by filing the notice of appeal.'
The appeal not having been docketed by the Supreme Court, the Superior Court had jurisdiction to dismiss the appeal.
In the appeal now before this Court the defendant, for the first time, urges that jeopardy attached in May 1963 and that the December 1963 trial placed the defendant in double jeopardy. We hold that this issue may not be effectively raised for the first time in connection with the current appeal. Article 2, Section 10, Arizona Constitution, A.R.S. is as follows:
The Arizona Supreme Court has several times considered the issue of double jeopardy, three of the cases being: State v. Morales, 90 Ariz. 11, 363 P.2d 606 (1961); State v. Burruell, 98 Ariz. 37, 401 P.2d 733 (1965); and Dowthard. In Morales, the Supreme Court observed (90 Ariz. at page 12, 363 P.2d at page 606):
'The record does not disclose that appellant presented any claim of double jeopardy to the Superior Court of ...
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