State v. Morales

90 Ariz. 11 (1961)

363 P.2d 606

STATE of Arizona, Appellee, v. Luis Mendoza MORALES, Appellant.

No. 7292.

Supreme Court of Arizona. En Banc.

July 14, 1961.

*12 Joseph H. Soble, Tucson, for appellant.

Robert W. Pickrell, Atty. Gen., and John A. Murphy, Jr., Asst. Atty. Gen., for appellee.

STRUCKMEYER, Chief Justice.

Appellant applied for writ of habeas corpus in the Superior Court of the State of Arizona in and for the County of Pinal on the ground of double jeopardy which was denied. An appeal followed to this Court.

It has been the unfailing rule in this State that the writ of habeas corpus may be used only to review matters affecting the jurisdiction of the court. State ex rel. Jones v. Superior Court, 78 Ariz. 367, 280 P.2d 691. Double jeopardy may be waived and may not be raised for the first time in a collateral proceeding. Bracey v. Zerbst, 10 Cir., 93 F.2d 8. The record shows that Morales pleaded guilty to the crime of petty theft, in the Justice Court of Santa Cruz County. Thereafter, he was sentenced in the Superior Court of Santa Cruz County on a plea of guilty to the charge of burglary to the state penitentiary. The record does not disclose that appellant presented any claim of double jeopardy to the Superior Court of Santa Cruz County in which he was sentenced.

We said in State v. Henderson, 34 Ariz. 430, 272 P. 97, 98:

"`It has never been the office of the writ of habeas corpus to operate as a writ of review, and we take it that no well-considered case can be found where it has been held that the writ may properly be used to review the judgment of a court where the judgment sought to be reviewed had been rendered by a court which had jurisdiction of the person and subject-matter of the suit in which the judgment had been rendered * * *.'"

The order of the Superior Court of Pinal County is affirmed.

BERNSTEIN, V.C.J., and UDALL, JENNINGS and LOCKWOOD, JJ., concur.