State v. Flemming

895 P.2d 1002, 182 Ariz. 239, 177 Ariz. Adv. Rep. 53, 1994 Ariz. App. LEXIS 235
CourtCourt of Appeals of Arizona
DecidedNovember 8, 1994
DocketNo. 1 CA-CR 93-0276
StatusPublished
Cited by1 cases

This text of 895 P.2d 1002 (State v. Flemming) 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. Flemming, 895 P.2d 1002, 182 Ariz. 239, 177 Ariz. Adv. Rep. 53, 1994 Ariz. App. LEXIS 235 (Ark. Ct. App. 1994).

Opinion

[240]*240OPINION

CLABORNE, Judge.

Craig Richard Flemming (“Flemming”) appeals from the two-year prison sentence that was imposed following the revocation of his probation for attempted robbery. He alleges that the sentencing court erred by:

1. failing to hold a probation violation hearing,
2. failing to hold a mitigation hearing,
3. failing to dismiss the petition for revocation as untimely, and
4. incorrectly calculating his presentence incarceration credit.

Although we agree that Flemming is entitled to an additional thirty-one days of presentence incarceration credit, we disagree that reversal is warranted and, therefore, affirm the trial court’s revocation of probation and the sentence imposed.

FACTS AND PROCEDURAL HISTORY

Pursuant to a written agreement with the State, Flemming pled guilty on December 5, 1988, to one count of attempted robbery, a class five felony. The trial court accepted the plea after finding that it was made knowingly, intelligently, and voluntarily. The court suspended imposition of sentence and placed him on three years probation, conditioned on serving thirty days in the Maricopa County Jail. The court also ordered him to pay a $100 felony assessment fee, $60 in restitution, and $30 a month for probation services.

On December 5, 1990, the Maricopa County Attorney’s Office filed a petition to revoke probation based on Flemming’s arrest in Pinal County on various drug charges and based on his failure to make a monthly probation services payment. On October 21, 1991, prior to the expiration of his three-year probation, Flemming pled guilty in Pinal County Superior Court to selling less than one pound of marijuana and to transporting less than eight pounds of marijuana for sale. He was sentenced to seven- and ten-year prison terms respectively. While Flemming was serving the sentences, the Maricopa County Attorney’s Office filed a petition to secure his appearance in Maricopa County on the revocation petition.

A hearing was held in Maricopa County Superior Court on March 23,1993, regarding the County Attorney’s petition to revoke probation. The trial court found that, by virtue of his guilty pleas in Pinal County Superior Court, Flemming was in automatic violation of the first condition of his probation, which required him to obey all laws. The trial court then sentenced him to a two-year presumptive prison term to run consecutively to the sentence imposed by the Pinal County court. Flemming timely appealed.

DISCUSSION

Probation Violation Hearing

Flemming contends that the trial court erred by finding him in automatic violation of probation pursuant to Arizona Rules of Criminal Procedure 27.7(e) (Supp.1993). According to Flemming, the court was not empowered to forgo a violation hearing under that rule because the court that placed him on probation and the court that found him guilty of the subsequent offenses were located in different counties. We disagree.

Because Flemming did not object at the time of the proceeding, the issue is whether the trial court’s failure to hold a violation hearing constitutes fundamental error. See State v. Zanzot, 175 Ariz. 83, 85, 853 P.2d 1130, 1132 (App.1993).

Since we find no error at all in the trial court’s application of Rule 27.7(e), there was, of course, no fundamental error. A probationer is entitled to a hearing before his probation can be revoked. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 482-85, 92 S.Ct. 2593, 2600-02, 33 L.Ed.2d 484 (1972). However, a violation hearing is not required before revoking probation when the same court that imposed probation also finds the probationer guilty of a subsequent offense. See Rule [241]*24127.7(e)1State v. Vasquez, 22 Ariz.App. 37, 41, 523 P.2d 88, 91 (1974) (citation omitted),

We hold that the superior courts of different counties constitute the “same” court for purposes of applying Rule 27.7(e). This Court has said that “[t]here is but one Superior Court in the State of Arizona.” Massengill v. Superior Court, 3 Ariz.App. 588, 591, 416 P.2d 1009, 1012 (1966); see also Ariz. Const, art. VI, § 1. We discern no rationale for distinguishing between superior courts of different counties for purposes of applying Rule 27.7(e). ‘What is needed [before revoking parole] is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior.” Morrissey, 408 U.S. at 484, 92 S.Ct. at 2602. The same standard applies to probation revocations. Gagnon, 411 U.S. at 782, 93 S.Ct. at 1759-60.

The purpose of Rule 27.7(e) is “to conserve judicial effort,” and “[i]f there has been a prior judicial determination as to the truth of the facts upon which the petition for revocation is based, there is no need to go through it again.” State v. Johnson, 117 Ariz. 9, 11, 570 P.2d 780, 782 (App.1977).

In State v. Vasquez, 22 Ariz.App. at 40-41, 523 P.2d at 91-92, this Court held that the revocation and sentencing stage of a probation revocation proceeding need not be bifurcated. In so holding, we said that where a revocation finding is based on a prior determination of guilt by trial or by plea, due process of law has been adequately safeguarded. Id. Morrissey prohibits a finding of automatic violation “only when the charges against the [probationer] are not based upon criminal charges which are being prosecuted under the criminal law.” Id. at 40, 523 P.2d at 91 (citation omitted). The Court in Fosquez pointed out:

When a parolee is arrested and prosecuted on criminal charges, the criminal prosecution itself is adequate protection against the evils and dangers Morrissey was designed to protect against.
If the preliminary hearing is waived and the parolee pleads guilty or is found guilty after trial, conviction of crime by a court under the stringent standards of proof, stricter procedural requirements, and the antiseptic atmosphere of the courtroom afford the parolee far more protection than do the preliminary hearing procedures announced in Morrissey. If the parolee was convicted of a crime forming the basis of the revocation proceedings, there was obviously probable cause to hold him for a parole violation.

Id. at 41, 523 P.2d at 92 (citation omitted).

We are guided further by the holdings in State v. Shapiro, 26 Ariz.App. 536, 549 P.2d 1054 (1976), and State v. Astorga, 26 Ariz.App.

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Related

State v. Flemming
907 P.2d 496 (Arizona Supreme Court, 1995)

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Bluebook (online)
895 P.2d 1002, 182 Ariz. 239, 177 Ariz. Adv. Rep. 53, 1994 Ariz. App. LEXIS 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-flemming-arizctapp-1994.