State v. White
| Decision Date | 08 February 1967 |
| Docket Number | No. 1760,1760 |
| Citation | 102 Ariz. 18,423 P.2d 716 |
| Parties | STATE of Arizona, Plaintiff, v. Jessie DeWayne WHITE, Defendant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Maricopa County Atty., by Donald E. Wolfram, Deputy County Atty., Phoenix, for plaintiff.
Ross Anderson, Phoenix, for defendant.
On April 10, 1959 a complaint charging the defendant with burglary and grand theft was filed with a magistrate. A warrant for the arrest of the defendant was issued, served, and returned. The defendant appeared before the magistrate, and after being informed of his rights waived preliminary examination. He was then bound over to answer for the crimes charged, and the county attorney filed an information charging burglary and grand theft. At the arraignment defendant, who was represented by counsel, pleaded not guilty to the charges of burglary and grand theft. Following his counsel's 'bargaining for pleas' with the county attorney, the latter filed an 'amended' information charging the felony of receiving stolen property, and the defendant, represented by counsel, pleaded guilty to the 'amended' information. There was no new complaint charging the defendant with receiving stolen property filed with a magistrate, but the information alleging that crime was filed directly in the Superior Court.
On July 8, 1959 sentence was suspended and defendant was placed on three years probation. However, on May 2, 1962, defendant was brought before the Superior Court and it was determined that he had violated his probation and the same was revoked. The defendant was then sentenced to not less than four nor more than five years in the state prison. On December 9, 1965, the defendant filed a motion to dismiss. As a result of the argument on the motion to dismiss the following question was certified to us:
'Does the Superior Court have jurisdiction to amend an information from grand theft and burglary to receiving stolen property and then enter a judgment on a plea of guilty to the amended information charging the felony of receiving stolen property?'
Article 2, § 30, Arizona Constitution, A.R.S. provides, '* * * no person shall be prosecuted for felony by information without having had a preliminary examination before a magistrate or having waived such preliminary examination.' In the present case the defendant pleaded guilty to the amended information charging a different crime than the one of which he was accused in the complaint and in the order binding him over. Rule 79, Rules of Criminal Procedure, 17 A.R.S. provides: 'The fact that a preliminary examination was neither had nor waived shall in no case invalidate any information in any court unless the defendant objects to such information because of such fact before pleading to the merits.' We have held that when the accused pleads guilty to an information he waives any defects in the preliminary examination. State v. Graninger, 96 Ariz. 172, 393 P.2d 266 (1964). We held in the same case that the above quoted portion of Rule 79, Rules of Criminal Procedure, 17 A.R.S. is not repugnant to Art. 2, § 30, Arizona Constitution, A.R.S. The right to have a preliminary hearing is a personal privilege for the benefit of the accused and he may waive it expressly or by implication. In the present case, by 'bargaining for pleas' and by pleading guilty to the amended information the defendant waived his right to have a preliminary examination on the charge of receiving stolen property, even though that crime is not a lesser included offense within the orginally charged crimes of burglary and grand theft.
The defendant claims that since receiving stolen property is not a lesser included crime encompassed within the crimes of burglary and grand theft he...
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Buccheri, Application of
...by our own Supreme Court, without any indication of disfavor. State v. Maberry, 93 Ariz. 306, 380 P.2d 604 (1963); State v. White, 102 Ariz. 18, 423 P.2d 716 (1967); and, State v. Martinez, 102 Ariz. 215, 427 P.2d 533 (1967). In White, our Supreme Court cited, with apparent approval, v. Mar......
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Eyman v. Superior Court In and For Pinal County
...(1968). In this jurisdiction, any defects in the preliminary examination are likewise subject to the rule of waiver. State v. White, 102 Ariz. 18, 423 P.2d 716 (1967); 17 A.R.S., Rules of Criminal Procedure, Rule 79. Entry of a plea of guilty precludes a defendant from raising any question ......
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Lay v. Nelson In And For County Of Yuma
..."waived defects in the preliminary proceedings" when he pled guilty. Id. at 456, 440 P.2d 336. See generally State v. White , 102 Ariz. 18, 20, 423 P.2d 716, 718 (1967) (Plea in superior court waived any error in preliminary matters: "Jurisdiction to try all felonies is conferred on the Sup......
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Griswold v. Gomes
...waived these alleged defects in the proceedings prior to the plea. State v. Defoy, 109 Ariz. 159, 506 P.2d 1053 (1973); State v. White, 102 Ariz. 18, 423 P.2d 716 (1967); State v. Brazeal, 99 Ariz. 248, 408 P.2d 215 THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL Defendant contends......