In the Matter of the Application of HUBBARD JOHNSON for a Writ of Habeas Corpus. HUBBARD JOHNSON, Appellant,
STATE OF ARIZONA, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. E. G. Frazier, Judge. Judgment affirmed.
Mr. Greg Garcia and Mr. James Garcia, for Appellant.
Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, his Assistant, for Appellee.
[53 Ariz. 162] McALISTER, J.
Hubbard Johnson appeals from an order refusing to release him from prison after a hearing upon his application for a writ of habeas corpus. His claim is that he is restrained illegally and without authority of law.
His application was based on these facts: On October 14, 1933, he entered a plea of guilty in the superior court of Maricopa county to the crime of robbery and on the same day the imposition of sentence was suspended for a period of five years from that date upon the conditions fixed by the court, which, so far as the record discloses, he complied with until some time in [53 Ariz. 163] October, 1938. On the fourth of that month he was arrested for arson and nine days later, or on October 13th, brought before the superior court and sentenced to a term of not less than five nor more than seven years from that date in the state prison for the robbery to which he had pleaded guilty in October, 1933. Before pronouncing sentence and remanding the
petitioner to the sheriff for delivery to the proper officers of the prison the court asked him if he had "anything to say or legal cause to show why the suspension of sentence should not be revoked by virtue of his failure to live up to the terms of probation" and in reply he made a statement but the nature of it is not disclosed by the record. Evidently it was not one that satisfied the court that he had been complying with the conditions of his probation, since sentence was imposed immediately thereafter.
On November 2, 1938, the petitioner was brought before the superior court of Maricopa county on a writ of habeas corpus issued out of that court on October 29th for the purpose of determining the legality of his detention in prison. The return of the prison superintendent was that he held petitioner under a commitment issued out of the superior court of Maricopa county, and after a hearing the writ was quashed and the petitioner remanded to the custody of the prison authorities, and it is this order from which he appeals.
The contention of the appellant is that the court had no jurisdiction on October 13, 1938, to pronounce sentence against him for several reasons: The first is that he was not granted a proper hearing in that he was not given an opportunity to show whether he had complied with the terms and conditions of his probation. All the record discloses relative to this is that about ten days the five-year probationary period expired he was arrested for arson and that on [53 Ariz. 164] October 13, 1938, the last day of that period, he was sentenced for the robbery to which he pleaded guilty on October 14, 1933. According to the record he was given an opportunity to make a statement, but, since it appears from the allegations of the petition that immediately after he made it the court revoked the suspension of the imposition of the sentence for robbery and imposed one of not less than five nor more than seven years in the state prison, his statement was not, in the judgment of the court, sufficient to show that he had lived up to the terms and conditions of his probation. It is unnecessary to say anything further on this point than to quote the following language in Varela v. Merrill, 51 Ariz. 64, 76, 74 P.2d 569, 574:
"We hold, therefore, following what we consider the better rule, that since in Arizona the suspension of sentence is a matter, of grace, and not of right, and its granting by the trial judge is purely a matter of discretion, and since the statute nowhere provides as to the character or quantum of the evidence necessary to satisfy him that a defendant has violated the conditions of his probation, that when the record shows affirmatively that the trial judge has ordered the suspension of sentence revoked and pronounced sentence, the defendant being present at such time of sentence, there is a conclusive presumption that the trial judge has, in the language of the statute, had '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.' The record shows that the suspension of sentence was revoked by the court, and that the petitioner was present when he was sentenced. This is sufficient under our statute to sustain the action of the trial court on a petition for a writ of habeas corpus."
The second contention is that the record discloses that the court imposed sentence on October 13, [53 Ariz. 165] 1938, without first revoking the suspension of the imposition of sentence granted October 14, 1933, and that, this being true, the sentence was illegally imposed. It is alleged in the petition for the writ of habeas corpus that on October 13, 1938, the court "did enter an order revoking the Order suspending imposition of sentence made and entered as aforesaid on the 14th day of October, 1933," though the judgment and commitment are silent on the matter. It is true that under section 5105, Revised Code of 1928, the court may, when one on probation is arrested and brought before it during the probationary period, "revoke and terminate such probation, if the interest of justice so requires," etc., and that "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." It is plain from this that it was intended that an order revoking the suspension of the imposition of sentence should be made by the court when it is convinced that the person has violated the terms of his probation and should be sentenced. However, it is clear that when the court imposes sentence it intends to do what is necessary to make
it legal, and, hence, revocation, if not specifically made, is necessarily implied in such an order. To fail to revoke could not prejudice a defendant's rights in the slightest and to hold that it would nullify the sentence imposed in its absence would be extremely technical. The situation is one to which the substantial ...