STATE v. PALMER, 3 Ariz. App. 218 (1966)

413 P.2d 277

STATE of Arizona, Appellee, v. Dwight Simmons PALMER, Appellant.

No. 1 CA-CR 80.Court of Appeals of Arizona.
April 22, 1966. Rehearing Denied May 23, 1966.

Defendant was convicted and sentenced in the Superior Court of Maricopa County, Cause No. 38139, Henry S. Stevens, J., for burglary in the second degree and defendant appealed. The Court of Appeals, Cameron, Acting C.J., held that examination

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of the entire record for fundamental error disclosed that defendant was represented by counsel at all stages of proceedings and failed to reveal any error.

Judgment and sentence affirmed.

Darrell F. Smith, Atty. Gen., by Gary K. Nelson, Asst. Atty. Gen., for appellee.

O’Reilly, Pollock, Murphy Pizzo, by Charles S. Pizzo, Phoenix, for appellant.

CAMERON, Acting Chief Judge.

This is a review for fundamental error pursuant to 13-1715 A.R.S.

On or about 2 May, 1961, the defendant, Dwight Simmons Palmer, represented by counsel, entered a plea of guilty to the crime of burglary in the second degree. After the judgment of the court finding the defendant guilty of the crime as charged, the court, on 17 May, 1961, suspended imposition of sentence for a period of 18 months from that date. Less than 18 months later, on or about 23 August, 1962, the court entered an order revoking and setting aside the defendant’s probation, and defendant was, on 18 September, 1962, sentenced to not less than four and one-half nor more than five years in the State Penitentiary. The record indicates that defendant was represented by counsel at this stage in the proceedings.

Defendant filed his notice of appeal in propria persona, and the court appointed counsel to represent defendant on appeal pursuant to 13-161 A.R.S. Said appointment was made 6 December, 1962.

For reasons which are neither apparent nor understandable, the record on appeal was not received by this Court until 7 March, 1966, and it is noted that the defendant had already been released from prison. This delay not being raised by appellant, we need not consider it on appeal.

Counsel for appellant in his brief, indicated that a complete examination of the record revealed no error, and that defendant’s rights were fully protected at all stages of the proceedings. The record discloses that the defendant was represented by counsel at all stages of the proceedings, and a complete examination of the entire record before us fails to reveal any error. State v. Garcia, 1 Ariz. App. 134, 400 P.2d 341 (1965); State v. Tannahill, 1 Ariz. App. 281, 402 P.2d 29 (1965), and State v. Szoyka, 97 Ariz. 223, 399 P.2d 121 (1965).

The judgment and sentence are affirmed.

DONOFRIO, J., and JOHN P. COLLINS, Superior Court Judge, concurring.

NOTE: Chief Judge HENRY S. STEVENS having requested that he be relieved from consideration of this matter, Judge John P. Collins was called to sit in his stead and participate in the determination of this decision.

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