State v. Walter

469 P.2d 848, 12 Ariz. App. 282, 1970 Ariz. App. LEXIS 635

• Court: Court of Appeals of Arizona
• Decided: May 28, 1970
• Docket: 2 CA-CR 209
• Status: Published

Opinions

HATHAWAY, Judge.

This appeal concerns the rights of an individual at a revocation of probation hearing.

Appellant had previously plead guilt to the crime of “drawing a check on no account,” and was brought before the court for sentencing on March 29, 1968. The court suspended imposition of the sentence and the appellant was placed on probation for five years.

On July 8, 1969, the Adult Probation Office filed a petition to revoke the appellant’s probation, and a hearing was held on this petition on September 5, 1969. At this hearing the Probation Officer, not under oath, apparently testified in the court’s chambers as to the reasons he filed the petition and for revoking the appellant’s probation. The appellant’s attorney sought to cross-examine the probation officer, but he was denied that right. The court then revoked the appellant’s probation and sentenced him to prison for a period of not less than four nor more than five years.

A.R.S. § 13-1657, subsec. B, relating to the revocation of probation states in part:

“At any time during the probationary term of the person released on probation, * * * the court may, in its discretion, issue a warrant for the rearrest of any such person and may thereupon revoke and terminate the probation, if the interests of justice so require, and if the court, in its judgment, has reason to believe that the person so placed upon probation is violating the conditions of his probation, or engaging in the criminal practices, or has become abandoned to improper associates, or a vicious life.”

The right to suspend a sentence in a criminal case can only be exercised in accordance with A.R.S. § 13-1657, State v. Bigelow, 76 Ariz. 13, 258 P.2d 409, 39 A.L.R.2d 979 (1953), since such power did not exist at common law, Varela v. Merrill, 51 Ariz. 64, 74 P.2d 569 (1937). State v. Washington, 5 Ariz.App. 400, 427 P.2d 381 (1967); State v. Douglas, 87 Ariz. 182, 349 P.2d 622, certiorari denied 363 U.S. 815, 80 S.Ct. 1255, 4 L.Ed.2d 1157 (1960).

The U. S. Supreme Court has held that an accused at a hearing to revoke his probation has a right to counsel, and this right exists whether the procedure is “ * * * labeled a revocation of probation or a deferred sentencing.” Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 258, 19 L.Ed.2d 336 (1967). Arizona has likewise held thát the accused is entitled to counsel at a hearing on revocation of probation and sentencing. Leonard v. State, 101 Ariz. 42, 415 P.2d 570 (1966).

However, a proceeding for revocation of probation is not subject to the limitations of a trial and is not governed by the same rules. State v. Benton, 5 Ariz.App. 314, 426 P.2d 414 (1967), State v. Maxwell, 97 Ariz. 162, 398 P.2d 548 (1965). To remain at liberty under a suspended sentence is not a matter of right in Arizona, but a matter of grace and is purely in the discretion of the trial court. State v. Maxwell, supra. The trial court here had read the probation officer’s report, spoke with both the probation officer and appellant’s counsel, and gave the appellant an opportunity to testify and present witnesses on his behalf. The appellant at that time admitted the various allegations in the probation officer’s report. We believe that the appellant was afforded his full constitutional rights, and find no basis in the contention that the denial of his right to cross-examine the probation officer violated his due process.

Having admitted to the trial court that he wrote the checks in question, there was sufficient evidence upon which the ■ trial court in its discretion could revoke his probation. State v. Maxwell, supra; State v. Crowder, 103 Ariz. 264, 440 P.2d 29 (1968).

We affirm the decision below.

KRUCKER, J., concurs.