In the Matter of Steven Reyes GUTIERREZ for writ of Habeas Corpus. STATE of Arizona, Appellee,
Steven Reyes GUTIERREZ, Appellant.
[82 Ariz. 22] Lawrence Ollason, Tucson, for appellant.
Robert Morrison, Atty. Gen., James H. Green, Jr., Sp. Asst. Atty. Gen., for appellee.
The County Attorney filed an information in Pima County against the petitioner herein, charging him with unlawfully dispensing narcotics, to wit: Heroin, all in violation of section 68-803, A.C.A.1939, as amended (A.R.S. § 36-1002).
The petitioner, after a plea of not guilty, was tried, convicted and sentenced to a term of from nine to twelve years in the Arizona State Prison, pursuant to section 68-834, A.C.A.1939, as amended, 1952 Cum.Supp. (A.R.S. § 36-1020). The cause was appealed to this Court and judgment affirmed, 306 P.2d 634. The constitutionality of the act, under which he was convicted, was not raised on that appeal.
The pertinent provisions of the statute, supra, are as follows:
'Penalties.-A person who violates any provision of thsi act shall, upon conviction, be punished by a fine not exceeding fifty thousand dollars ($50,000) and imprisonment in the state prison for not more than twenty-five (25) years; provided, however, that for the first offense the court may, in its discretion, impose a fine not exceeding one thousand dollars ($1,000), imprisonment[82 Ariz. 23] in the county jail not exceeding one (1) year, or both.' (Emphasis supplied.)
Petitioner thereafter made an application for a writ of habeas corpus in the county of Pinal, being the county where he was incarcerated in the State prison. The writ was issued and a hearing had thereon, after which it was quashed. This action gave rise to the instant appeal.
Appellant argues that the trial court erred in quashing the writ of habeas corpus on the grounds that:
1. The statute, section 68-834, supra, under which the defendant was convicted, provides for different degrees of punishment for different persons and thereby operates as a denial of the equal protection of the laws under the 14th Amendment of the U. S. Constitution.
2. Said statute fails to inform the accused with reasonable certainty of what crime he has been accused and therefore violates the due process clause of the 14th Amendment of the federal constitution.
3. That the legislative power of the state is vested in the legislature (no exceptions noted) and that it may not divest itself of such function or delegate it to the judiciary.
The act itself (known as the Uniform Drug Narcotic Act) (A.R.S. § 36-1001 et seq.) does not designate the character of the offense with which appellant was charged as being either a felony or a misdemeanor, but section 43-109, A.C.A.1939, now section 13-103, A.R.S.1956, defines both felonies and misdemeanors as follows:
'Crimes are either felonies or misdemeanors.-A felony is a crime which is punishable with death or by imprisonment in the state prison; every other crime is a misdemeanor. When a crime punishable by imprisonment in a state prison is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison.' (Emphasis ours.) Cf. State v. Benton, 78 Ariz. 85, 276 P.2d 516.
We have examined all of the statutes in the various states of the union relating to the Uniform Narcotic Drug Act and while our statute purports to conform with that act, we have found only six states in which the punitive clause is at all like ours and the constitutionality thereof has not been raised in those states. We have not found any ...