State v. Kennedy

107 Ariz. 133 (1971)

483 P.2d 548

STATE of Arizona, Appellee, v. Julian Eugene KENNEDY, Appellant.

No. 1988.

Supreme Court of Arizona, In Banc.

April 14, 1971.

Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Public Defender, James H. Kemper, Deputy Public Defender, Phoenix, for appellant.

LOCKWOOD, Justice:

The appellant was convicted below of two counts of armed robbery (A.R.S. § 13-641) with a prior conviction, and sentenced to two terms of ten to twelve years, the sentences to be served consecutively. He appeals from the sentence, claiming that the documents introduced by the state to prove the prior conviction did not show that he was represented by counsel at his prior convictions, and secondly, that the state did not comply with the formalities of Rule 44, 16 A.R.S. in introducing proof of the foreign prior convictions, thereby making his sentence under the recidivist statute (A.R.S. § 13-1649) improper.

After a jury trial which resulted in the guilty verdict of the two counts of armed robbery, the same jury was asked to determine whether the appellant had a prior conviction in another state as alleged in the amended information. To prove the prior convictions, the state introduced certain documents comprising state's exhibit No. 4.

Appellant's first contention is that contrary to Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), the documents relied upon by the state did not affirmatively show that the appellant was represented by counsel at his prior convictions. The state did not introduce any evidence other than the documents. An examination of these documents confirms appellant's contention.[1] It is therefore unnecessary *134 to discuss the other matters raised by appellant.

Since this is an appeal only from the judgment of guilt as to prior convictions, and the enhanced sentences based thereon, and not on the conviction of the Arizona armed robbery charges, the judgment of guilty of prior convictions is reversed.

The matter is remanded for the purpose of resentencing upon the robbery convictions.

STRUCKMEYER, C.J., HAYS, V.C.J., and UDALL and CAMERON, JJ., concur.

[1] The documents in question were marked "Exhibit 4", and consisted of several documents: (1) "Uniform Commitment to Custody of Division of Corrections", (2) "Information for Breaking and Entering and Grand Larceny", (3) A like item with same title, (4) Document bearing two photographs, and (5) Fingerprint card. Exhibit 4 was lost in transit from the trial court to this court but the copies as described were procured, and by stipulation between counsel for appellant and appellee were agreed to be the same as those constituting original Exhibit 4, with irrelevant minor differences.