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Varela v. Merrill

Supreme Court of Arizona

December 20, 1937

PETE VARELA, Appellant,
ROY MERRILL, Sheriff of Maricopa County, Appellee

APPEAL from an order of the Superior Court of the County of Maricopa. Howard C. Speakman, judge. Order affirmed.

Mr. Marshall W. Haislip, for Appellant.

Mr. John W. Corbin, County Attorney, and Mr. Lin H. Orme, Jr., His Deputy, for Appellee.


[51 Ariz. 65] LOCKWOOD, J.

This is an appeal from an order of the superior court of Maricopa county, denying a petition for a writ of habeas corpus. The facts, as shown by the record, may be stated as follows:

On the 24th of October, 1931, Pete Varela, hereinafter called petitioner, was convicted by a jury of the crime of rape. On November 17th petitioner appeared before the court for sentence, and the following order was made:

"It is the judgment of the court that you are guilty of rape as charged in the information. The passing of sentence committing you to the State Penitentiary at Florence, Arizona, is suspended for a period of ten years on condition that you conduct yourself in every particular as a law abiding citizen; that you pay within 90 days from this date into the Clerk of this Court the sum of $250.00 as and for the

Page 570

expenses incurred in the trial of this cause; that you support your wife and baby; that you report to the Adult Probation Officer at least once every ten days until futher order of this Court in the manner he shall prescribe for you; that you do not leave the State of Arizona without permission of the Court."

[51 Ariz. 66] On April 3, 1935, petitioner was brought into court, charged with a violation of the conditions of his probation, and he was ordered to comply with these conditions within 30 days. He was apparently again arrested, for the record shows that on May 17, 1937, he was released from custody. On July 31, 1937, a bench warrant was issued for his arrest, and on the 4th of September he was brought before the court, when the following proceedings are shown by the minutes to have occurred:

"September the 4th, 1937. State of Arizona versus Pete Varela, No. 11099. Defendant present. Order suspension of sentence in this case is revoked. Have you anything to say or legal cause to show why sentence should not be pronounced at this time. Defendant makes statement. It is the judgment of this Court that you are guilty of the crime of rape, a felony, as heretofore adjudged and that you shall be punished therefor by imprisonment in the State Penitentiary at Florence, Arizona, for a period of not less than five years nor more than five years and one month from the date of incarceration therein."

Thereafter a petition for habeas corpus was presented to the Honorable HOWARD C. SPEAKMAN, one of the judges of said court, and was heard on the 15th of September, when the petition was denied, and this appeal was taken.

It is apparently the position of petitioner that before a court may revoke an order suspending the pronouncing of a sentence, it must appear affirmatively from the record (a) that the conditions imposed in the suspension of sentence were such as the court was authorized to require, (b) that the petitioner be brought into court and given a hearing on the question of whether he has violated these conditions, and (c) that there must be sufficient evidence of such violation shown by the record to justify the court in finding that he has been guilty of a violation of the conditions.

[51 Ariz. 67] It is the contention of the state (a) that a suspension of a sentence is a matter of grace, and not of right, and that the trial court may impose any conditions which tend towards the prevention of future crime by the defendant, or other persons, or provide for reparation by the defendant for the injury which he has caused by the crime, (b) that if the court, for any reason, believes thereafter that the defendant has either violated the conditions of his probation, or engaged in criminal practices in general, or become abandoned to improper associates, it may, without any formal trial or the taking of evidence in the ordinary manner, revoke the suspension of sentence, and proceed to sentence the defendant for the crime for which he was originally convicted.

Questions of a similar nature to those involved in the present proceeding have been before the courts in many jurisdictions, and there is some conflict in the decisions. Generally they turn upon the language of the statute authorizing the suspension of sentence. This power did not exist in the court at common law, and the language of the particular statute, therefore, is very material as to the power conferred upon ...

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