State v. Smith

576 P.2d 533, 118 Ariz. 345, 1978 Ariz. App. LEXIS 413
CourtCourt of Appeals of Arizona
DecidedMarch 7, 1978
Docket1 CA-CR 2719
StatusPublished
Cited by7 cases

This text of 576 P.2d 533 (State v. Smith) 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. Smith, 576 P.2d 533, 118 Ariz. 345, 1978 Ariz. App. LEXIS 413 (Ark. Ct. App. 1978).

Opinion

OPINION

WREN, Judge.

Appellant, Frank Allen Smith, entered a plea of guilty to possessing stolen property, A.R.S. § 13-621, a felony. The plea was made pursuant to a plea agreement which required three counts of receiving stolen property be dismissed. The court suspended the imposition of sentence for three years and placed appellant on probation. A condition of probation was that he serve thirty days in the county jail. The court in addition imposed the following condition:

“That Defendant shall pay restitution in the amount of $7.00 per day to offset his costs of incarceration for a total of $210.00 within a period of 16 months to the Adult Probation Department.”

The validity of the quoted condition is the subject of this appeal.

Appellant argues first that the requirement that he reimburse the county for the costs of incarcerating him is void because it is not authorized by statute. The relevant statute is A.R.S. § 13-1657(A)(1) which provides in pertinent part:

“A. If it appears that there are circumstances in mitigation of the punishment, or that the ends of justice will be sub-served thereby, the court may, in its discretion, place the defendant upon probation in the manner following:
1. The court may suspend the imposing of sentence in felony cases and may direct that the suspension continue for such period of time, not exceeding the maximum term of sentence which may be imposed, and upon such terms and condi *347 tions as the court determines, and shall place such person on probation, under the charge and supervision of the probation officer of the court during such suspension. The conditions imposed may include incarceration in the county jail for a specified period not to exceed one year, or a fine not exceeding the amount of fine authorized for the offense.” (Emphasis added.)

Appellant points out that probation was unknown at common law and must therefore be imposed in strict accordance with the statute. State v. Bigelow, 76 Ariz. 13, 258 P.2d 409 (1953). A.R.S. § 13-1657(A)(1) specifically authorizes courts to exercise discretion in imposing probation and in selecting the terms and conditions of probation. Since we can find no statute specifically authorizing the levying of costs of incarceration as a condition of probation, and appellee has not cited one, the question becomes whether the trial court’s discretion under A.R.S. § 13-1657(A)(1) to determine conditions of probation is broad enough to include the condition complained of here.

The Supreme Court of Arizona has stated:

“Probation is a matter of legislative grace. It is a sentencing alternative which a court may use in its sound judicial discretion when the rehabilitation of the defendant can be accomplished with restrictive freedom rather than imprisonment. The court can surround probation with restrictions and requirements which a defendant must follow to retain his probationary status.” State v. Smith, 112 Ariz. 416, 419, 542 P.2d 1115, 1118 (1975).

The discretion afforded courts to determine and impose conditions of probation has been described in very broad terms:

“[T]he court may require that a defendant comply with numerous conditions of probation v/hen, in the opinion of the court, such conditions aid in the rehabilitation process or prove a reasonable alternative to incarceration as punishment for the crime committed. The defendant, of course, may reject the terms of probation and ask to be incarcerated instead if he finds the terms and conditions of his probation unduly harsh. Unless the terms of probation are such as to violate basic fundamental rights or bear no relationship whatever to the purpose of probation over incarceration, we will not disturb the trial court in the exercise of its discretion in imposing conditions of probation.” State v. Montgomery, 115 Ariz. 583, 584, 566 P.2d 1329, 1330 (1977).

The probation statute has been held to authorize the imposition of restitution or reparations as a condition of probation, Redewill v. Superior Court, 43 Ariz. 68, 29 P.2d 475 (1934); a probation condition requiring a probationer to submit to search and seizure at any time without the benefit of a search warrant, State v. Montgomery; regulating a probationer’s hours, requiring him to seek employment and to continue his education, and even to refrain from associating with a certain woman. State v. Donovan, 116 Ariz. 209, 568 P.2d 1107 (App.1977). In our view the court did not abuse its broad discretion in requiring appellant to pay $210 for the costs of his incarceration in the county jail. The amount involved is not unreasonable and appellant does not complain that he is indigent and cannot pay. The condition imposed is a reasonable method of bringing home to him the fact that criminal behavior has consequences not only for the victim, but in a very real sense is costly to society as well. We certainly cannot hold that the condition bears “no relationship whatever to the purpose of probation.” State v. Montgomery, 115 Ariz. at 584, 566 P.2d at 1330.

Appellant relies upon People v. Baker, 37 Cal.App.3d 117, 112 Cal.Rptr. 137 (1974), modified 39 Cal.App.3d 550, 113 Cal. Rptr. 248 (1974), in which the court struck down a charge of $90,000 for costs of prosecution as an unreasonable condition of probation. The court reasoned that allowing the imposition of costs of prosecution as a condition of probation would confront defendants with potentially unlimited penalties and could conceivably deter defendants from exercising their, rights to a jury trial. But these objections assume that the court in imposing conditions of probation has unlimited discretion. As wide as a court’s discretion is, see State v. Montgomery, it must never be forgotten that it is a sound *348 discretion that must be exercised. A court must not make a decision “characterized by capriciousness or arbitrariness or by a failure to conduct an adequate investigation into the facts.” State v. Douglas, 87 Ariz. 182, 187, 349 P.2d 622, 625 (1960), cert. denied, 363 U.S. 815, 80 S.Ct. 1255, 4 L.Ed.2d 1157 (1960).

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Cite This Page — Counsel Stack

Bluebook (online)
576 P.2d 533, 118 Ariz. 345, 1978 Ariz. App. LEXIS 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smith-arizctapp-1978.