State v. Huante

HAYS, Chief Justice. The defendant pled guilty to the charge of armed robbery. Sentence was suspended and the defendant placed on probation for five years. One of the conditions of probation was that Huante serve six months in the Maricopa County Jail. While serving that time, he escaped. A petition to revoke probation was filed, a bench warrant issued and the defendant was arrested March 6, 1974. Rule 27.7(a), Arizona Rules of Criminal Procedure, states that a “hearing to determine whether probation should be revoked shall be held before the sentencing court no less than 7 and no more than 20 days after . . . the probationer’s initial appearance” after arrest. The initial appearance was held March 8, 1974. This appeal raises the question of whether the revocation of the defendant’s probation was valid because a preliminary hearing was held after 20 days had elapsed from the time of the initial appearance. A preliminary hearing was set on the revocation petition for March 26, 1974. On March 21, 1974, the matter was continued to March- 29, 1974, at the request of the probation officer. On that date, a supplemental petition to revoke was filed based on a second charge and the hearing was continued to April 5, 1974, again at the request of the probation officer. Defense counsel objected both times. At the preliminary hearing, the defendant admitted his escape from jail and the other charge was dropped. The defendant was sentenced to serve not less than 5 nor more than 7 years at the Arizona State Prison. As stated in the comments to Rule 27.7(a), the time limits are imposed to give the probationer .time to prepare his defense and to protect him from “lengthy unwarranted incarceration.” The time limits are not jurisdictional and if the above factors are taken into consideration, there is no cause for invalidating a petition to revoke where no prejudice is shown. There was no prejudice in this case. The delay was for cause and for no more than 8 days. The defendant was returned to the jail from which he'had escaped, and thus was not exposed to “lengthy unwarranted incarceration.” The appellant’s probation revocation and sentence are affirmed. CAMERON, V. C. J., and STRUCK-MEYER, LOCKWOOD and HOLOHAN, JJ., concur.