JAMES L. BROOKS, Appellant,
STATE OF ARIZONA, Respondent
APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Appeal dismissed.
Mr. John J. McCullough, for Appellant.
Mr. Joe Conway, Attorney General, and Mr. W. E. Polley and Mr. J. M. Johnson, his Assistants, for Respondent.
[51 Ariz. 546] McALISTER, C.J.
On November 14, 1935, one James L. Brooks was convicted of the crime of grand larceny and on November 22d thereafter, following the denial of his motion for a new trial, the court, acting upon the recommendation of the jury that sentence be suspended, postponed the imposition thereof for a period of six years, and at the same time admonished the defendant that
"if at any time within the said six years you commit any crime you will be arrested and sentenced to the state prison for a term of not less than four nor more than six years from date of sentence." His bond was then exonerated.
Nothing further was done in the case for nearly two years, or until August 27, 1937, when the defendant was arraigned on an information charging him with the crime of purchasing junk from a boy thirteen years of age, to which he entered a plea of not guilty. The hearing on that charge was then set for three days later, the defendant's bond fixed at $500 cash and the order of November 22, 1935, postponing the imposition of sentence, revoked. At the conclusion of the hearing on August 30th, at which the testimony of several witnesses was taken, the court decided that the defendant was guilty of the charge of purchasing junk from a minor and that in consequence had violated the terms and conditions of his probation so it thereupon sentenced him to imprisonment in the state prison for a term of not less than four nor more than six years from that day, August 30, 1937, for the crime of grand larceny for which he had been convicted in November, 1935.
[51 Ariz. 547] On October 14, 1937, the defendant gave notice of appeal from the order overruling his motion for a new trial on November 22, 1935, the day it was filed, and from the final judgment of conviction and sentence rendered on August 30, 1937. Shortly after the filing of his brief on January 10, 1938, which was devoted wholly to the errors alleged to have been committed in the trial of the case in November, 1935, the respondent moved for a dismissal of the appeal upon the ground, first, that it had not been perfected within the time prescribed by statute and, second, that he was estopped from prosecuting his appeal because he had accepted the benefits of and acquiesced in all the proceedings incident to the suspension of his sentence on November 22, 1935.
No reply to the motion to dismiss was made by appellant but the court declined to grant it at that time, though it was good in so far as it was based on the appeal from the order denying his motion for a new trial, because that motion was overruled immediately after the trial in November, 1935, and no appeal therefrom was even attempted until October 14, 1937. Under section 5134, Revised Code of 1928, a defendant may appeal from a final judgment of conviction, from an order denying a motion for a new trial or from an order made after judgment affecting his substantial rights, and when the appeal is to the Supreme Court the notice thereof must, under section 5138, Revised Code of 1928, be given within sixty days after the rendition of the judgment or the making of the order appealed from. It is clear, therefore, that a notice of appeal from an order denying a motion for a new trial filed nearly two years after the latter was denied was too late and without any effect whatever in perfecting the appeal, but it would seem to be equally clear that the notice of appeal from the final judgment or sentence was within the time set by statute, [51 Ariz. 548] because, even though the information charging grand larceny was tried in November, 1935, the final judgment or sentence in the case was not pronounced until August 30, 1937, and the notice of appeal therefrom was filed on October 14, 1937, forty-five days thereafter. The state contends, however, that notwithstanding this was within the sixty days prescribed by the statute, the appeal should still be dismissed because the appellant had accepted the benefits of the suspension of the imposition of the sentence and he should not, after having done this, be permitted to bring the final judgment to this court for review. It was due to the fact that this presented a question demanding serious consideration that the motion to dismiss was not acted upon at that time but carried over to be determined in connection with the appeal itself.
After a plea or verdict of guilty and the refusal to arrest the judgment or grant a new trial it is the duty of the court to pronounce judgment and sentence. But under section 5105, Revised Code of 1928, the court may, where it has jurisdiction as to the extent of the punishment and either party orally suggests that there are circumstances in mitigation thereof, hear the same summarily, and if it appears that the suggestion is well-founded, or that the ends of justice would be subserved thereby, it has power in its discretion to place the defendant on probation, instead of pronouncing judgment and sentence, in the following manner:
"1. The court, judge or justice thereof, may suspend the imposing of sentence and may direct that such suspension may continue for such period of time, not exceeding the maximum term of sentence, which may be imposed, and upon such terms and conditions as it shall determine, and shall place such person on probation, under the charge and supervision of the [51 Ariz. 549] probation officer of said court during such suspension....
"At any time during the probationary term of the person released on probation, any probation officer may, without warrant or other process, at any time until the final disposition of the case, re-arrest any person so placed in his care and bring him before the court, or the court may, in its discretion, issue a warrant for the re-arrest of any such person and may thereupon revoke and terminate such probation, if the interest of justice so requires, and if the court, in its judgment shall have reason to believe that the person so placed upon probation is violating the conditions of his probation, or engaging in criminal practices, or has become abandoned to improper associates, or a vicious life. Upon such revocation and termination, the court may, if the sentence has been suspended, pronounce judgment at any time after the said suspension of the sentence within the longest period for which the defendant might have been sentenced, but if the judgment has been ...