State v. BrownState v. Brown
Appellant, Leland R. Brown, was charged with four counts of drawing a check on in
Defendant’s motion for hearing in mitigation under Rule 336 presents essentially the same circumstances as had been presented by counsel at sentencing. No specific reasons were given by the trial court in denying the motion. In aрpealing from the denial of his motion, defendant claims he has a right to a hearing on the issue of the involuntariness of his plea of guilty. Due to the unexplained denial of defendant’s motion, defendant alleges error in the alternative:
“1. It would have been error for the trial court to disclaim jurisdiction or
2. The trial court erred because the hearing on an involuntary plea is mandatory.”
Recently in Arizona there has developed some confusion as to when and to what еxtent trial courts have jurisdiction to modify sentences once defendant is incarcerated.
In State v. Barnes,
“It appears to be the almost universal rule that as a matter pf common law, where a defendant has entered upon the execution- of a valid-sentencе, the court has no jurisdiction, even during the term at which the sentence was rendered, to set it aside and render a new sentence. [Citations omitted.] Nor can it indefinitely suspend the execution of its sentence, after the same has been pronounced, either in whole or in part, and any such order, made either аfter judgment or as a part thereof, is wholly void. [Citations omitted.] Therefore, as a matter of common law, the order of the court suspending the further exeсution of the sentence after defendant had served a considerable period of the time set forth therein in jail was beyond its jurisdiction and void.”30 Ariz. at 267 ,246 P. at 550 .
In State v. Lopez,
“ * * * the trial court in the absence of a specific rule or statute has inherent jurisdiction to modify and vacate its own judgments and order in criminal cases, in accordanсe with Rule 60(c) of the Rules of Civil Procedure, as amended, unless such jurisdiction is sooner terminated by the perfecting of an appeal * *96 Ariz. at 172 ,393 P.2d at 266 .
In State v. Churton,
Rule 60(c), Rules of Civil Procedure, as amended, sets forth the following sрecific grounds for vacating a judgment:
“60(c) Mistake; inadvertence; surprise; excusable neglect; newly discovered evidence; fraud, etc. On motion and uрon such terms as are just the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reаsons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discoveredevidence which by due diligence could riot have been discovered in time to move for a new trial under Rule 59(d); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged, or a prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than six months after the judgment, order or proceeding was entered оr taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from á judgment, order or proceeding, or to grant relief to a defendant served by publication as provided by Rule 59(j) or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules оr by an independent action. * * * ” (Emphasis supplied)
In applying this rule to criminal cases our Supreme Court has held that an involuntary plea of guilty or a “guilty plea procured by fraud or duress” is a ground for setting aside a judgment based on such plea. State v. Jennings, Ariz.,
A recent Arizona case, State v. Dixon,
“ * * * the Supreme Court has announced above that the only exception to the inherent jurisdiction given to the trial court under Rule 60(c) is where an appeal to the appellate court has been perfeсted. Lopez being the latest pronouncement on this point, we cannot agree with the State’s contention that a second exception to this Rule should arise when a defendant, convicted of a criminal charge, has been committed to prison and has begun his sentence.”6 Ariz.App. at 211-212 ,431 P.2d at 106 .
The extent to which Rule 60(c) § 6 should be expanded to eradicate the Barnes and McKelvey common-law principle must be decided on a case by case basis. Dixon should not be cited as authority for the broad rule that Rule 60(c) (6) has no limits other than perfection by appeal. Its holding should be restricted to its facts; continuing jurisdiction exists to revoke revocation of рrobation contingent on a second trial outcome.
In the instant case, defendant requests this court rule that a hearing of mitigation of sentence is allowed under Rule 60(c) (6) once sentence has begun. This court cannot agree. Rule 60(c) was never meant to be used to relitigate issues already raised by motion and heard before the court. 3 W. Barron & A. Holtzoff, Federal Practice & Procedure With Forms, at 401. It is not to be used merely because defendant is unhappy with the result. Holtzoff, at 406. The defendant in this сase moved for a hearing to which he is entitled-under Rule 336, Rules of Criminal Procedure. However, defendant Brown had his hearing at sentencing, if informally, and-he is not entitled to try again.
This court also does not believé that the evidence at sentencing presented
Judgment affirmed.
MOLLOY, C. J., and HATHAWAY, J. concur.