STATE оf Arizona, Petitioner/Appellee, v. The CITY COURT OF the CITY OF TUCSON and the Honorable Thomas D. Welch, Chief Magistrate of the City of Tucson, Respondents, and Ervin KRIST, real party in interest, Respondent/Appellant.
No. 15604-PR.
Supreme Court of Arizona, In Banc.
Dec. 29, 1981.
640 P.2d 167
Walter B. Nash III, P. C. by Thomas G. Goddard and Elliot Glicksman, Tucson, for respondent/appellant.
CAMERON, Justice.
We granted this petition for review to correct what we believe tо be a mistake of law concerning the discretion of the Tucson City Court in granting a motion to withdraw a plea of guilty. We have jurisdiction pursuant to
The facts necessary for a determination of this matter are as follows. In January 1980, the real party in interest, Ervin Krist, represented by counsel, pled guilty to the charge of reckless driving in the City Court of The City of Tucson. Because he had a previous conviction for driving while intoxicated within 24 months рreceding the guilty plea to reckless driving, his driver‘s license was required to be revoked pursuant to
“The court, in its discretion, may allow withdrawal of a рlea of guilty or no con-
test when necessary to correct a manifest injustice. Upon withdrawal, the charges against the defendant as they existed before any amendment, reduction or dismissal made as a рart of a plea agreement, shall be reinstated automatically.”
The question before the Court of Appeals, 640 P.2d 187, and before this court is what is meant by the term “manifest injustice.” The Comment to Rule 17.5 states:
“The term manifest injustice is intended to include denial of effective assistance of counsel, failure to follow the procedures prescribed by Rule 17, and incorrect factual determination made under Rule 17.3, and such traditional grounds as ‘mistake and misapprehensiоn,’ State v. Corvelo, 91 Ariz. 52, 369 P.2d 903 (1962) and ‘duress and fraud,’ Silver v. State, 37 Ariz. 418, 295 P. 311 (1931); State v. Murray, 101 Ariz. 469, 421 P.2d 317 (1966).”
The Court of Appeals held, in interpreting the Comment to Rule 17.5 and State v. Corvelo, supra, that the phrase “mistake and misapprehension” was limited to the nature of the charge and “does not refer to some mistake or misapprеhension about a collateral matter.” We do not agree. Without determining whether the loss of a driver‘s license is or is not a collateral matter as to a plea of guilty to the crime of reckless driving, we believe that defendant‘s mistake as to the loss of the license was a fact that the city magistrate could consider in determining whether to allow the defendant to withdraw his plea pursuant to Rule 17.5. Although the loss of the liсense was not a direct consequence of the plea in that it was due in part to a prior conviction from a separate action, the revocation of the license was certainly a consequence of the reckless driving conviction.
A person who pleads guilty without knowledge of the punishmеnt that must be imposed has pled guilty under a mistake and misapprehension. It was therefore no abuse of disсretion for the trial judge to have set aside Krist‘s plea. We have stated:
“A motion to withdraw a plea of guilty is addressed to the sound discretion of the trial court,
17 A.R.S.R.Crim.P. 188 , and in the absence of a clear abuse of thаt discretion its ruling will not be disturbed on appeal, (citations omitted). However, the discretion of the trial court should be liberally exercised in favor of permitting the withdrawal. (citation omitted). Where there is any showing that justiсe will be served thereby, any doubt should be resolved in favor of withdrawing the plea, (citation omitted)” State v. Corvelo, supra, 91 Ariz. at 54, 369 P.2d at 904-05 (1962).
Nothing we say in this opinion requires the trial court, in accepting a plea of guilty to reckless or drunken driving, to inform the dеfendant of the loss of license as a special condition mentioned in Rule 17.2 of the Arizona Rules of Criminаl Procedure, 17 A.R.S.; that information is usually peculiarly within the knowledge of the defendant and the trial judge. What we dо say here is that the revocation of a driver‘s license is a factor which the court may consider in sеtting aside a plea of guilty to the charge of reckless driving.
The decision of the Court of Appeals is sеt aside and the opinion is vacated. The decision of the trial court is reversed, and the order of the city magistrate setting aside the plea of guilty is affirmed.
STRUCKMEYER, C. J., and GORDON, J., concur.
HAYS, Justice, specially concurring:
I concur in the result reached by the majority in this casе. However, the opinion goes beyond the necessity of a determination of the issue presented.
We still follow State v. Corvelo, 91 Ariz. 52, 369 P.2d 903 (1962), еven though it predates the Rules of Criminal Procedure, and there being no abuse of discretion by the trial cоurt in permitting a withdrawal of the plea of guilty, the trial court‘s ruling is upheld. With this I agree.
I see no need to engagе in discourse on whether the loss of license was a direct consequence of the plea, nor meet the question of the meaning of the term “manifest injustice” as raised by the Court of Appeals.
I concur in the result.
HOLOHAN, Vice Chief Justice, concurring:
I concur in the special concurrence of Justice Hays.