Pina v. State

100 Ariz. 47 (1966)

410 P.2d 658

In the Matter of the Application for a Writ of Habeas Corpus, Edward B. PINA, Petitioner, v. The STATE of Arizona, Respondent.

No. 8719.

Supreme Court of Arizona. En Banc.

February 4, 1966.

Amelia D. Lewis, Sun City, for petitioner.

*48 Darrell F. Smith, Atty. Gen., James S. Tegart, Asst. Atty. Gen., for respondent.

PER CURIAM.

On January 18, 1966, Edward B. Pina filed an application for writ of habeas corpus in this Court. His petition disclosed that on February 9, 1960, petitioner being present in open court in the Superior Court of Maricopa County, together with his counsel, pleaded guilty to the crime of illegal possession of narcotics, a felony; and, it appearing to the court that the ends of justice would be best served if sentence was not then imposed, petitioner was placed on probation and sentence was suspended for a term of five years. Thereafter, on the 29th day of November, 1960, probation having theretofore been revoked, petitioner being present in open court but not in the presence of his counsel was sentenced to the State Prison at Florence, Arizona, for a term of not less than fifteen years nor more than twenty years.

The sentence on November 29, 1960, having been pronounced in the absence of petitioner's counsel, was invalid. Lee v. State, 99 Ariz. 269, 408 P.2d 408. The time within which petitioner can be resentenced expired on February 9, 1965. Haney v. Eyman, 97 Ariz. 289, 399 P.2d 905; In re Johnson, 53 Ariz. 161, 87 P.2d 107; Brooks v. State, 51 Ariz. 544, 78 P.2d 498, 117 A.L.R. 925.

The sentence and commitment of the Superior Court of Maricopa County is vacated and set aside and petitioner is ordered discharged from the State Prison at Florence, Arizona.