State v. Zebrowski
| Decision Date | 11 September 1975 |
| Docket Number | No. 2,CA-CR,2 |
| Parties | The STATE of Arizona, Appellant, v. Julian Joseph ZEBROWSKI, Jr., Appellee. 627. |
| Court | Arizona Court of Appeals |
On February 20, 1974, appellee, pursuant to his guilty plea, was convicted of the crime of unlawful possession of a narcotic drug in violation of A.R.S. Sec. 36--1002. He was placed on probation for a period of three years. On June 20, 1974, appellee's probation was revoked and he was sentenced to not less than two nor more than three years in the Arizona State Prison. After approximately eleven months in prison, appellee filed a motion to modify his sentence, pursuant to Rule 32.1, Rules of Criminal Procedure, on the grounds that since being in prison he has been free of all drug use and has not received any professional counseling. Also, that rehabilitation could be better achieved in rehabilitation programs outside of the prison.
The trial court, while expressing some doubts as to its jurisdiction, nevertheless granted the motion. The sentence was set aside and appellee was placed on probation for three years.
The sole issue is whether the trial court had jurisdiction to grant relief.
Appellant contends that A.R.S. Sec. 36--1002(A) proscribes the trial court's ability to set aside the conviction. Appellee contends that the trial court acted properly under the authority of State v. Lopez, 96 Ariz. 169, 393 P.2d 263 (1964). We hold that the trial court lacked jurisdiction. State v. Lopez, supra, decided before the adoption of the present criminal rules, held that in the absence of a specific rule or statute, the trial court has inherent jurisdiction to modify or vacate its own judgments and orders in accordance with Rule 60(c) of the Rules of Civil Procedure.
Rule 32.1, Rules of Criminal Procedure, provides:
'Subject to the limitations of Rule 32.2, any person who has been convicted of, or sentenced for, a criminal offense may, without payment of any fee, institute a proceeding to secure appropriate relief on the ground or grounds that:
a. The conviction or the sentence was in violation of the Constitution of the United States or of the State of Arizona;
b. The court was without jurisdiction to render judgment or to impose sentence;
c. The sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law;
d. He is being held in custody after his sentence has expired or after his probation or parole has been unlawfully revoked;
e. Newly-discovered material facts exist, which the court after considering
(1) The probability that such facts,...
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State v. Pike
...that he has been rehabilitated since the imposition of sentence. State v. Guthrie, 111 Ariz. 471, 532 P.2d 862 (1975); State v. Zebrowski, 24 Ariz.App. 452, 539 P.2d 926, approved, 112 Ariz. 433, 543 P.2d 119 (1975). Thus, the trial court commits legal error in attempting to modify a senten......
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...must assert grounds which bring him within the provisions of this rule in order to be entitled to any relief. State v. Zebrowski, 24 Ariz.App. 452, 539 P.2d 926, Approved, 112 Ariz. 433, 543 P.2d 119 (1975). Petitioner here has not brought himself within the permissible grounds of Rule 32.1......
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...rule on the merits of a petition for post-conviction review where no ground cognizable under rule 32 is asserted. State v. Zebrowski, 24 Ariz.App. 452, 539 P.2d 926 (App.1975). A challenge to a parole revocation is not within the scope of amended rule 32. The petitioner has asserted no subs......