Catherine E. Mealey, Flagstaff, for appellant.
Wade Church, Atty. Gen., and Stirley Newell, Asst. Atty. Gen., for appellee.
This is an appeal, under A.R.S. § 13-1713(2), from 'an order made after judgment affecting the substantial rights of the party.' It challenges an order of the Superior Court of Coconino County denying the application of Joe Vallejos, hereinafter called defendant, for a free stenographic transcript of the reporter's notes under the provisions of A.R.S. § 13-1714.
[87 Ariz. 120] The facts of the case, so far as necessary for a determination of this appeal, are not in dispute and may be stated as follows:
Defendant was convicted of the offense of possession and sale of narcotics on four separate counts, and was thereafter duly sentenced under the verdict. Notice of appeal was filed in a timely manner and defendant, being advised by counsel that he had good grounds for appeal, made an affidavit pursuant to Rules of Criminal Procedure, Rule 361, subd. B, 17 A.R.S., that he was unable to pay the costs of the transcript of the trial proceedings and moved that it be furnished at the expense of the county--as provided by Section 13-1714, supra.
A hearing was held on this motion, at which time defendant appeared and testified. At the hearing (a transcript of which was provided--compliments of the court reporter) these facts were adduced: Defendant had no job, no funds, and no property; following his arrest, defendant was released on a $5,000 bond signed by four friends and relatives and secured by certain property (mainly his mother's dwelling house, which was already encumbered
by a mortgage); the only cash payment which had been made in connection with his defense was $200 in attorney's fees, the money for which was acquired from a finance company in the form of personal loans to defendant's aunt and brother-in-law; the cost of an appeal transcript was estimated at $800, more or less; defendant had tried without success to borrow the necessary money from friends and relatives.
At the conclusion of the hearing, the trial court denied defendant's motion. However, the court did attempt to bargain with defendant by offering to pay up to $200 from county funds, if the defendant could supply the remainder of the required amount. This appeal is concerned solely with the trial court's post conviction order in this matter.
Basic to this appeal are Rule 361, subd. B of the Rules of Criminal Procedure and A.R.S. § 13-1714. Rule 361, subd. B states:
(After setting out the hearing procedure) '* * * If the court is satisfied that appellant is unable to pay for the record or reporter's transcript, or both, it shall enter an order directing that the record or transcript, or both, be furnished at the expense of the county as provided by A.R.S. § 13-1714.' (Emphasis supplied.)
A.R.S. § 13-1714 reads as follows:
'The expense of a certified copy of the record on appeal or of the reporter's transcript, or both, when appellant files an affidavit that he is without means or wholly unable to pay for such copies, and such affidavit is found true, shall be a charge upon the county [87 Ariz. 121] in which the appellant was convicted.' (Emphasis supplied.)
Defendant's position may be briefly stated: it is conceded that he personally is without money or property; therefore, it necessarily follows that he is 'wholly unable to pay' these costs; the statute is mandatory, allowing no exercise of discretion by the trial court once it has been determined that the defendant is 'wholly unable to pay'; ergo, he is entitled to have these costs paid from county funds.
The State, on the other hand, challenges the conclusion that defendant is 'wholly unable to pay' in the terms of the statute and rule. It urges that the burden is upon the party demanding such funds to make an affirmative showing of entitlement thereto, and that a requisite of such showing is proof not only that defendant is without funds, but also that his friends and relatives are unable to meet the expense. In support of this proposition, the State relies upon Riley v. State,49 Ariz. 123, 65 P.2d 32. The State contends ...