State ex rel. Eyman v. Shumway

HATHAWAY, Chief Judge. The appellee was convicted in the superior court of Pima County on each of four counts of an information charging him with drawing a check on insufficient funds. On February 16, 1965, sentences were imposed thereon. On June 16, 1967, the appellee filed a petition for a writ of habeas corpus in Pinal County superior court seeking his release from the state prison on the ground that he had completed serving four concurrent terms of not less than four nor more than five years. On July 17, 1967, the habeas court entered an order “granting a conditional writ of habeas corpus”1 and on the following day entered an “order of discharge from imprisonment.” Pursuant to A.R.S. § 12-2101, subsec. L(2), the State has appealed. The appellee’s convictions have previously been reviewed and affirmed by this court. See, State v. Shumway, 2 Ariz.App. 39, 406 P.2d 241 (1965). Review thereof was subsequently denied by the Supreme Court on January 18, 1966. In that appeal, the nature of the sentences imposed was unsuccessfully challenged. Implicit in the review of the sentences was our determination of the consecutive nature thereof. In the habeas corpus proceedings below, the appellee once again challenged the nature of the sentences, Contending that they were concurrent rather than consecutive, and the habeas court agreed. We believe, and so hold, that the superior court was without jurisdiction to issue the [33] writ of habeas corpus. Where the subject matter of the petition has previously-been considered by the appellate court, its judgment is not subject to review in habeas corpus proceedings. State ex rel. Galbraith v. Superior Court, etc., 22 Ariz. 452, 197 P. 537 (1921); State ex rel. Ronan v. Superior Court, etc., 94 Ariz. 414, 385 P.2d 707 (1963); Franklin v. State ex rel. Eyman, 5 Ariz.App. 417, 427 P.2d 551 (1967). Accordingly, it is hereby ordered that the discharge order from which this appeal is taken be vacated and the petition for writ of habeas corpus be dismissed. KRUCKER, J., and LAWRENCE HOWARD, Superior Court Judge, concur. NOTE: Judge JOHN F. MOLLOY having requested that he be relieved from consideration of this matter, Judge LAWRENCE HOWARD was called to sit in his stead and participate in the determination of this decision. Footnotes [1] The petitioner was ordered conditionally discharged from custody upon his giving bail as therein provided.