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State ex rel. Morrison v. Superior Court In and For Yavapai County

Supreme Court of Arizona

May 21, 1957

STATE of Arizona ex rel. Robert MORRISON, Attorney General, Petitioner,
The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF YAVAPAI, and Hon. W. E. Patterson, Presiding Judge thereof, Respondents.

Robert Morrison, Atty. Gen., for petitioner.

Locklear & Wolfinger, Prescott, for respondent.

[82 Ariz. 238] UDALL, Chief Justice.

The State of Arizona, at the relation of Honorable Robert Morrison, Attorney General, instituted this original proceeding in certiorari against respondents, the Superior Court of the State of Arizona in and for the county of Yavapai and Honorable W. E. Patterson, presiding judge thereof, for the purpose of testing the legality of an order entered by respondent court on August

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30, 1956, vacating and setting aside a previous judgment of said court dated September 13, 1930. The parties will hereinafter be referred to as petitioner and respondent.

Respondent judge made a return certifying and transmitting to this court the entire record of pertinent files and minutes of the proceedings had before the court.

The steps giving rise to the instant petition for certiorari are as follows:

1. A preliminary hearing was held before a magistrate at Seligman, and thereafter the county attorney of Yavapai County, on September 11, 1930, filed an information against one 'Bob Harper' (criminal cause No. 2854) charging said defendant with the crime of burglary, a felony. At his arraignment the minutes show he was 'asked by the court if he desires counsel to represent him and states that he does not desire counsel.' Defendant then entered a plea of guilty and two days later was sentenced by the late Richard Lamson, presiding judge, to serve not less than one nor more than two years in the state penitentiary.

2. The defendant served thirteen months and eight days of this sentence, whereupon he was discharged from custody with the sentence fully executed.

3. Clyde C. Crosby, also known in the month of September, 1930, as 'Bob Harper', and allegedly being the same person designated as defendant in criminal cause No. 2854, supra, filed a motion in said cause on August 27, 1956, to vacate and set aside the original judgment and sentence imposed against him and to declare the same null and void upon the following grounds, viz.:

'1. This court was, on the date of rendering and entering said judgment and sentence, without jurisdiction to enter said judgment and impose said sentence, and the same are, therefore, a nullity and of no force and effect.

'2. That said judgment and sentence should be vacated and set aside because the defendant, at the time said judgment was rendered and said sentence imposed, was a minor of the age of fifteen (15) years; that said defendant was not represented by counsel and was incapable, because of his age and immaturity, of defending himself against the charge preferred against him, or otherwise asserting his legal rights and immunities in the premises.'

[82 Ariz. 239] The admitted purpose of the instant proceedings seeking to expunge the prior judgment of conviction was to nullify or remove from a secret indictment returned against Clyde C. Crosby on July 31, 1956, by the grand jury of Multnomah County, State of Oregon, the impact of a prior felony conviction in Arizona which upgraded the offense there charged.

4. The record does not affirmatively show that a copy of this motion was served upon anyone representing the State of Arizona, though presumably the county attorney of Yavapai County knew of it as he appeared at the hearing held on August 30, 1956, but apparently did not resist the granting of such motion. (The record is silent as to when the attorneys general, petitioner herein, first learned of these proceedings.)

5. Respondent judge, on the day of the hearing, purportedly entered an order (erroneously labeled a judgment) vacating and setting aside the judgment and sentence theretofore pronounced against Bob Harper upon the grounds (a) the justice of the peace at Seligman was without jurisdiction to hold a preliminary hearing for Bob Harper and to hold him to answer in the superior court on the charge of burglary as he was then a minor of the age of fifteen years, and the proceedings should first have been certified to the judge of the superior court, and (b) the superior court, having held no examination of the minor defendant in chambers-as required by article 6, ...

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