Willmon v. State ex rel. Eyman, 2

• Decision Date: 03 February 1972
• Docket Number: CA-CIV,No. 2,2
• Parties: Charles WILLMON, Appellant, v. The STATE of Arizona ex rel. Frank A. EYMAN, Warden, Arizona State Prison, Appellee. 1088.
• Court: Arizona Court of Appeals

Page 125

493 P.2d 125

16 Ariz.App. 323

Charles WILLMON, Appellant, v. The STATE of Arizona ex rel. Frank A. EYMAN, Warden, Arizona State Prison, Appellee.

No. 2 CA-CIV 1088.

Court of Appeals of Arizona, Division 2.

Feb. 3, 1972.

Rehearing Denied Feb. 29, 1972.

Review Denied April 4, 1972.

Andrew Silverman, Post-Conviction Legal Assistance Clinic, University of Arizona College of Law, Tucson, for appellant.

Gary K. Nelson, Atty. Gen., Phoenix, by John S. O'Dowd, Asst. Atty. Gen., Tucson, for appellee.

KRUCKER, Chief Judge.

This is an appeal from a denial of a writ of habeas corpus. Appellant had been tried and convicted of two counts of robbery (Counts 2 and 3) and one count of kidnapping (Count 1) in the Superior Court of Pima County. Appellant has appealed to the Arizona Supreme Court on issues not raised in this appeal. State v. Martinez, 102 Ariz. 178, 427 P.2d 129 (1967). The issue before us here concerns the legality of sentence and deals with the question of concurrent sentences as opposed to consecutive sentences.

The sentence pronounced by the trial court read as follows:

'IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED, and the judgment and sentence of the Court is that you, CHARLES WILLMON, be punished by imprisonment in the State Prison at Florence, Arizona, for a term of not less than five (5) years, and not more than ten (10) years, to date from February 25, 1966 under each count of ROBBERY (COUNTS II and III), said sentences to run concurrently; and serve a term of not less than eight (8) and not more than ten (10) years under the charge of KIDNAPING (COUNT I), said sentence for kidnaping to run consecutively and to be served consecutively to the sentences for robbery . . .

On the original judgment and sentence signed by the Honorable Anthony T. Deddens, there was a notation below the judge's signature as follows: '(Prison) Note: all sentences date from February 25, 1966.'

We have examined the minute entry of the court which reads as follows:

'This being the time set for sentencing and no legal cause having been shown why sentence should not be passed at this time,

IT IS THE JUDGMENT OF THE COURT THAT the Defendants . . . Charles Willmon are guilty as charged in the Information.

IT IS THE FURTHER JUDGMENT OF THE COURT THAT the Defendants . . . Charles Willmon be sentenced for the crime of ROBBERY, COUNTS II and III to the Arizona State Prison for not less than five (5) and not more than ten (10) years under each of said counts, the sentences to run concurrently.

IT IS THE FURTHER JUDGMENT AND SENTENCE OF THE COURT that the Defendants . . . Charles Willmon be sentenced for the crime of KIDNAPING, COUNT I to the Arizona State Prison for not less than eight (8) and not more than ten (10) years, the sentence for the crime of Kidnaping to run consecutively and to be served consecutively to the robbery sentences. (Sentence . . . to commence February 25, 1966).

IT IS FURTHER ORDERED that the Defts. be remanded to the custody of the Pima County Sheriff.'

When we compare the jdugment and sentences and the Minute Entry, we find nothing ambiguous or indefinite. State v. Madrid, 9 Ariz.App. 207, 450 P.2d 719 (1969), cert. denied, 396 U.S. 1016, 90 S.Ct. 581, 24 L.Ed.2d 508 (1970), establishes that judgment shall be rendered...