[84 Ariz. 257] Marshall W. Haislip, of Phoenix, for petitioner.
Al J. Flood, in pro. per., and Charles C. Stidham, Maricopa County Atty. and Richard Kamps, Deputy County Atty., Phoenix, for respondent.
Robert Morrison, Atty. Gen. by Melvin J. Mirkin, Asst. Atty. Gen., Flynn & Allen, Phoenix, amici curiae, with permission of the Court.
UDALL, Chief Justice.
The sole legal question presented in this matter is: does the respondent justice of the peace, as a court, have jurisdiction to suspend the imposition of sentence on one convicted of a misdemeanor and place the defendant on probation?
We granted an original writ of prohibition to resolve this question. The facts giving rise to these proceedings are as follows: a criminal complaint was filed before respondent, Al J. Flood, justice of the peace of the West Phoenix precinct in Maricopa County, charging petitioner Bennie Peterson with the crime of failure to provide for a minor child, a misdemeanor; on April 1, 1958 the latter pleaded guilty to the charge and was by the court immediately placed under a six-months suspended sentence and placed on probation, conditioned upon, among other things, that he support said child and conduct himself as a lawabiding citizen. He was then given his liberty and returned to his regular employment with the Southern Pacific Company.
Shortly thereafter one of the judges of the superior court of Maricopa county, in ruling on a similar question, held that the justice courts of Arizona do not have jurisdiction to suspend the imposition of sentence and place a defendant on probation. Actuated solely by this ruling respondent cited petitioner Peterson to appear before the court on April 7, 1958, at which time the court announced to said petitioner that the judgment which had been entered would be vacated, probation terminated and that petitioner would thereupon be sentenced to incarceration in the county jail. It is admitted the terms of probation had in nowise been violated.
No question is raised as to prohibition being a proper remedy under the facts of this case.
[84 Ariz. 258] It is well settled in this jurisdiction that the power of a court to suspend sentence in a criminal case is not an inherent power but exists solely by virtue of statute and may be exercised only in accordance therewith. State v. Bigelow, 76 Ariz. 13, 258 P.2d 409, 39 A.L.R.2d 979; Smith v. State, 37 Ariz. 262, 293 P. 23. The sole question here then is directed towards the meaning of our statutes.
The power or jurisdiction of a justice of the peace to suspend imposition of sentence in misdemeanor cases coming before the justice courts and place a defendant on probation has been uniformly accepted in this jurisdiction until now. It is urged that if there is a doubt as to such authority it should be resolved in favor of the prevailing practice. See, Bohannan v. Corporation Commission, 82 Ariz. 299, 313 P.2d 379; Maricopa County v. Trustees Arizona Lodge, 52 Ariz. 329, 80 P.2d 955. However, let us look to the statute to see if legislative grant of authority to suspend sentences is extended to justice courts.
Previous to the 1956 revision and codification of our laws (particularly A.R.S. section 13-1657, subd. A 1), the pertinent section read, in part.
'The court, judge or justice thereof, may suspend the imposing of sentence * * * upon such terms and conditions as it shall determine, and shall place such person on probation, under the charge and supervision of the probation officer of said court during such suspension; * * *' See, Sec. 1126(1) P.C.1913; Sec. 5105(1) Revised Code of 1928; Sec. 44-2229, subd. 1 A.C.A.1939. (Emphasis supplied.)
It is urged in the brief amicus curiae, that (a) 'judge or justice' did not mean justice of the peace and (b) if it did, removal of that phrase in the 1956 codification was a legislative repeal of the grant under A.R.S. section 1-102. It is further urged the lack of a probation officer in a justice court would indicate that the grant in section 13-1657, supra, was not intended
to empower a justice court to suspend the imposition of sentence.
This section (before amendments) was modeled somewhat after the West'n Ann.California penal code, section 1203 and was apparently adopted from there with some omissions. In re Keene, 47 Ariz. 191, 54 P.2d 791. While their constructions in not binding it is persuasive. Cf. James v. State, 53 Ariz. 42, 84 P.2d 1081. California has continually held, beginning with the leading case of Ex parte Giannini, 18 Cal.App. 166, 122 P. 831, that this power extended to justices of the peace. See also, Ex parte Young, 121 Cal.App. 711, 10 P.2d 154; In re Herron, 217 Cal. 400, 19 P.2d 4; further that justice courts [84 Ariz. 259] may grant probation summarily. Ex parte Goetz, 46 Cal.App.2d 848, 117 P.2d 47. They have also held that failure to place the defendant under the probation officer's control does not invalidate the order suspending sentence. In re Herron, supra; Ex parte Giannini, supra.
What is then the effect of the code commission's deletion of the words 'judge or justice thereof', as it was finally adopted by the legislature in A.R.S. section 13-1357? The code commission undoubtedly did this in ...