Tohono O'odham Nation v. Vincent, (2023)
| Citation | 2021 TOR Supp. 208 |
| Decision Date | 08 May 2023 |
| Docket Number | CR09-3612-00 |
| Parties | TOHONO O'ODHAM NATION, Plaintiff v. Lemuel Theodore Vincent Defendant |
| Court | Tohono O'odham Court of Appeals |
TRIAL RECORD ENTRY
OFFENSE(S) ____
COURT DATE: September 24, 2001 TIME:_ BOND POSTED:
CALENDER EVENT: [] Arraignment [] Pre-Trial [] Hearing
[] jury Trial [] Bench Trial [] Pretrial
[] Sentencing [] Parole Hearing [] Other
Probation Violation
DEFENDANT (x) Present () Not Present
DEFENSE COUNSEL: (x) Present D Ray () Not Present () Pro Se
PROSECUTORS (x) Present A Osborne () Not Present
PROBATION OFFICER: (x) Present L Chavez () Not Present
IT IS ORDERED:
____The Defendant is found Guilty of:
____The Defendant is found Not Guilty of:
x Set for: Disposition Hearing October 22, 2001 at 1:30 p m.
____The following charges are dismissed:
() with prejudice () without prejudice
____Presentence Report Requested.
IT IS FURTHER ORDERED that the Defendant:
____Pay a fine of $____. () Suspended () Fine Agreement allowed
____Pay $____Per month beginning____until fine is paid in full.
_____ Shall complete____hours of community service by:
____Be committed to tribal jail for a period of:
____Be placed on: () supervised () unsupervised probation () Deferred Sentence () Parole Granted
For:
____Shall enroll in:
Counseling by:
And shall show proof of completion to Court by:
____Defendant not eligible for parole/work credit during first ____days.
____Defendant eligible for work release from____ ____.m. to. ____ ____m.
____Defendant may drive a motor vehicle between hours of____ ____.m and____ ____.m.
AND THAT: Bond in the amount of; ____is hereby.
() exonerated () converted () forfeited () All processing fees be paid by
Defendant. ____Money Order = $0.85
____Postage = $0.32
____Certified Mail = $2.45
____Refund BOND in the amount of $
() Issue Bench Warrant () Quash Bench Warrant () Conditions:
ADDITIONAL ORDERS: Defense Counsel Motion to Dismiss for the reason that the Nation has not provided the Court with a certified copy of the Ak-Chin Tribal Court Record Entry showing the conviction of the Defendant while he was on probation. Defense Counsel argues that the Ak-Chin conviction is the underlying charge for the revocation of probation. Defense Counsel argues the Nation had plenty of time to produce the document if they were to use it. Nation argues that now is the time to submit the proof of the violations and that they are not required to use the certified copy of the tribal court conviction as they have others who can testify to the conviction.
Defense Counsel then argues that the certified copy of the conviction perfects the petition to revoke probation, thus it is necessary for the petition to revoke probation. Defense Counsel Motion to Preclude the witnesses from testifying as he was not properly apprised by the Nation that they would be called to testify.
Court notes that pursuant to Administrative Order III, this Court follows the Arizona Rules of Criminal Procedure and Arizona Rules of Evidence in the absence of any Tohono O'odham Court Criminal Rules of Procedure or Rules of Evidence. This Court is not aware of any Tohono O'odham Criminal Rules of Procedure or Rules of Evidence governing the disclosure of witnesses, etc, for probation violation hearings. Thus the Court looks to the Arizona Rules of Criminal Procedure and the Arizona Rules of Evidence.
Pursuant to Rule 27.7(b)(3), Ariz.R.Crim.P., the standard of evidence for probation violation hearings is a preponderance of the evidence and that the judge may receive any reliable evidence not legally privileged, including hearsay. Italics added for emphasis. The Court finds that the Ak-Chin Tribal Court Record Entry concerning the conviction is not certified in any way, therefore the Court bars its admittance into evidence.
However, the Court holds that the Nation may produce witnesses who can testify as to the conviction from Ak-Chin Tribal Court and that they may refer to the document. The Court further notes that the Ak-Chin arrest and conviction is not the only allegation of probation violation filed with the court. Other allegations include the failure of the Defendant to perform community service hours and to attend alcohol counseling. The Court therefore denies the Defendant's Motion to Dismiss.
As to the Defendant's Motion to Preclude Witnesses, the Court looks to Rule 16.2(b) &(c), Ariz.R.Crim.P. concerning the filing of timely motions. The Court notes that Rule 16.1(b) pertains to the filing of motion...
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