State v. Brooks

777 P.2d 675, 161 Ariz. 177, 37 Ariz. Adv. Rep. 16, 1989 Ariz. App. LEXIS 181
CourtCourt of Appeals of Arizona
DecidedJune 22, 1989
DocketNos. 1 CA-CR 88-227, 1 CA-CR 88-243
StatusPublished
Cited by6 cases

This text of 777 P.2d 675 (State v. Brooks) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brooks, 777 P.2d 675, 161 Ariz. 177, 37 Ariz. Adv. Rep. 16, 1989 Ariz. App. LEXIS 181 (Ark. Ct. App. 1989).

Opinion

OPINION

KLEINSCHMIDT, Judge.

This case presents the question, among others, of whether the trial court has the power to vacate an order terminating probation that was entered by mistake. We hold that it does.

The issue arose in the following manner. The defendant, Tony Ramon Brooks, pled guilty to endangerment, a Class 6 open-end offense. Judge E.G. Noyes, Jr., of the Superior Court for Maricopa County, placed the defendant on probation fór a period of three years. Subsequently, on July 23, 1987, the defendant’s probation officer petitioned for an early termination of probation on the grounds that the defendant had successfully completed over half of the term imposed. This petition was presented to Judge Michael 0. Wilkinson, of the same court, who, on July 27, ordered that it would be granted unless the state filed a written objection within fifteen days.

On August 2, 1987, an incident occurred which led to the filing of a charge of attempted first-degree murder against the defendant. On August 6, 1987, the defendant’s probation officer filed a petition to revoke his probation based on the alleged attempted murder. On that same day, the county attorney, based on the- charge of attempted murder, filed a written objection to the early termination of probation. Instead of delivering a copy of this objection to Judge Wilkinson, a copy was sent to Judge Barry G. Silverman, another judge of the Superior Court for Maricopa County. On August 11, 1987, Judgé Wilkinson signed an order discharging the defendant from probation and designating the offense a misdemeanor. At the time he did this, Judge Wilkinson was unaware that the state had filed an objection to the request or that a petition to revoke was pending.

On September 16, 1987, despite the fact that probation had been terminated, a revocation arraignment was held béfore Judge Silverman. The defendant denied that he had violated his probation. On October 23, 1987, the state discovered that Judge Wilkinson had discharged the defendant from probation. It immediately filed a motion to vacate the order discharging the defendant from probation. Judge Wilkinson, observing that he had entered the order without knowledge of the state’s opposition and the petition to revoke, granted this motion to vacate the order. The matter ultimately proceeded to a hearing at which the defendant was found to be in violation of probation.

At about the same time the defendant was found to have violated probation, he pled guilty, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to a charge of aggravated assault reduced from attempted murder. Sentencing on this charge and a disposition hearing on the probation violation were held at the same time. The defendant was sentenced to concurrent terms of 7.5 years’ imprisonment on the conviction for [179]*179assault and 1.875 years for endangerment, the conviction for which he had originally been placed on probation. He appealed each conviction, and the matters have been consolidated for disposition.

On appeal, the defendant asserts that:

1. The trial court erred in granting the state’s motion to vacate the order terminating probation;
2. The trial court erred in denying the defendant the right to represent himself at the violation hearing;
3. The trial court erred in the amount of time it credited for presentence incarceration on the endangerment charge.

THE ORDER FOR TERMINATION OF PROBATION

The defendant, relying on A.R.S. § 13-901(0), which permits the court to revoke probation prior to the expiration or termination thereof, and on Keller v. Superior Court, 22 Ariz.App. 122, 524 P.2d 956 (1974), insists that once Judge Wilkinson signed the order terminating probation the court lost jurisdiction to do anything further in the case. The state, in response, posits three reasons why the trial court’s order setting aside the termination of probation was not error. It first argues that the discharge order was void ab initio because the judge who terminated the probation was not the same judge who had originally placed the defendant on probation. The argument is based on the fact that Rule 27.3, Arizona Rules of Criminal Procedure, 17 A.R.S., provides that “the sentencing court ... may terminate probation and discharge probation absolutely.” (Emphasis added.) “Sentencing court,” the state says, means “sentencing judge.” This argument fails.

The rule says “sentencing court,” not “sentencing judge.” The superior courts of the state constitute a single court. Ariz. Const, art. 6, § 13. If we gave the rule the effect for which the state argues, the violation hearing itself would have been invalid because it was not conducted by Judge Noyes, who originally sentenced the defendant, and Rule 27.9(b)(1) specifies that the “sentencing court” shall conduct such a hearing. Decisions from other jurisdictions support our conclusion. See Bartholomey v. State, 267 Md. 175, 187, 297 A.2d 696, 703 (1972); People v. Collins, 25 Mich.App. 609, 612, 181 N.W.2d 601, 602 (1970).

The state’s second argument is a response to the defendant’s reliance on Keller v. Superior Court, 22 Ariz.App. 122, 524 P.2d 956 (1974). In Keller, a petition to revoke was filed before the term of probation expired. Id. The violation hearing was held after the expiration of probation. Id. at 123, 524 P.2d at 957. The court of appeals ruled that once the term of probation expired, the trial court lost jurisdiction to revoke probation and sentence the defendant. Id. at 124, 524 P.2d at 958. This ruling was vitiated by the adoption of A.R.S. § 13-903(D) (Supp.1988), which provides that the filing of a petition to revoke tolls the running of the period of probation. The state argues that, since the order terminating probation was entered after the petition to revoke had been filed, the termination order had no legal effect. The problem with this argument is that the defendant’s probation did not expire as the result of the passage of time—which is all that A.R.S. § 13-903(D) addresses. Instead, probation was terminated by a direct order.

The state next argues that “it defies logic to believe that the judge that erroneously issued the order purporting to terminate probation lacks authority to vacate the order upon his discovery that the order was improperly entered.” We agree that the superior court has inherent authority to modify or vacate orders which it enters by mistake. This authority has been repeatedly recognized. In State v. Lopez, 96 Ariz. 169, 171, 393 P.2d 263, 265 (1964), the trial court denied the defendant’s motion for a new trial.

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Cite This Page — Counsel Stack

Bluebook (online)
777 P.2d 675, 161 Ariz. 177, 37 Ariz. Adv. Rep. 16, 1989 Ariz. App. LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brooks-arizctapp-1989.