State v. Waggoner, 2

• Court: Arizona Court of Appeals
• Writing for the Court: BIRDSALL
• Citation: State v. Waggoner, 144 Ariz. 262, 697 P.2d 345 (Ariz. App. 1984)
• Decision Date: 13 March 1984
• Docket Number: CA-CR,No. 2,2
• Parties: The STATE of Arizona, Appellee, v. Donald Austin WAGGONER, Appellant. 3190.

Page 345

697 P.2d 345

144 Ariz. 262

The STATE of Arizona, Appellee, v. Donald Austin WAGGONER, Appellant.

No. 2 CA-CR 3190.

Court of Appeals of Arizona Division 2.

March 13, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Robert S. Golden, Asst. Attys. Gen., Phoenix, for appellee.

Frederic J. Dardis, Pima County Public Defender by Carol Wittels, Asst. Public Defender, Tucson, for appellant.

OPINION

BIRDSALL, Chief Judge.

The appellant was found guilty of theft of property with a value over $1,000. Three prior felony convictions were found by the court, the jury having been waived for that phase of the trial. The court also found that the appellant was on parole from California when the theft was committed and his sentence was further enhanced pursuant to A.R.S. § 13-604.01(B). He was sentenced to the presumptive term as mandated by the latter statute.

Two issues are presented on appeal:

1) that an allegation that the appellant was on parole when the theft was committed should have been stricken as untimely, and

2) that the trial court erred when it refused to permit defense counsel to argue punishment to the jury in the hearing on the priors and parole status. ¹

We affirm.

The indictment was filed September 3, 1982. It charged that the appellant stole certain listed property from Paulin Motors on August 26 in violation of A.R.S. §§ 13-1802 (the theft statute), 13-701, 13-702, 13-801, 13-803 (all sentencing statutes), 13-604(B) and (D) (pertaining to enhancement of sentences where there exists prior felony convictions) and 13-604.01. The latter statute provides:

"A. Notwithstanding any provision of law to the contrary, a person convicted of any felony offense involving the use or exhibition of a deadly weapon or dangerous instrument or involving the intentional or knowing infliction of serious physical injury upon another if committed while the person is on probation for a conviction of a felony offense, or parole, work furlough or any other release from confinement for conviction of a felony offense shall be sentenced to life imprisonment and is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis except as specifically authorized by § 31-233, subsection A or B until the person has served not less than twenty-five years. A sentence imposed pursuant to this subsection shall be consecutive to any other sentence from which the convicted person had been temporarily released.

B. Notwithstanding any provision of law to the contrary, a person convicted of any felony offense not included in subsection A of this section if committed while the person is on probation for a conviction of a felony offense, or parole, work furlough or any other release from confinement for conviction of a felony offense shall be sentenced to a term of not less than the presumptive sentence authorized for the offense, and the person is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis except as specifically authorized by § 31-233, subsection A or B until the sentence imposed by the court has been served. A sentence imposed pursuant to this subsection shall be consecutive to any other sentence from which the convicted person had been temporarily released."

We are concerned here with subsection B.

Although an allegation of prior convictions was filed on the same date as the indictment, no allegation that the appellant was on parole at the time of the crime was filed until May 6, 1983. A.R.S. § 13-604(K) provides, in part, that the penalties prescribed in A.R.S. § 13-604, i.e., those enhancing a sentence because of previous convictions, dangerous nature of the offense or committing the offense while released on recognizance or bail, shall be substituted for the lesser penalties otherwise authorized if charged in the indictment and found to be true by the trier of fact. It further provides that the court, in its discretion, may allow such allegations at any time prior to trial. There is no specific statutory direction concerning how the fact that a defendant was on parole when the offense was committed should be charged.

The appellant contends that an allegation of committing the offense while on parole must be filed no later than 20 days prior to the date set for trial, Rule 16.1(b), Rules of Criminal Procedure, 17 A.R.S., and that the trial court has no discretion to allow the allegation after that date. See Rule 16.1(c); State v. Marahrens, 114 Ariz. 304, 560 P.2d 1211 (1977); State v. Lee, 25 Ariz.App. 220,...