 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Borquez5/13/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED
Pursuant to a plea agreement, appellant Ishmael Barreras Borquez pled guilty to endangerment and misdemeanor driving under the influence of an intoxicant (DUI). The trial court suspended the imposition of sentence and placed appellant on probation. He was found to have violated several conditions of that probation after a contested violation hearing. Although the court did not revoke probation, it did impose an additional jail term as a new condition thereof, and appellant appealed. Counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), raising one arguable issue. Appellant has not filed a supplemental brief. We affirm.
The trial court originally placed appellant on three years' probation for the endangerment count and four years' probation for the DUI count, those terms commencing on October 15, 1998. However, the written conditions of probation, dated October 15, 1998, did not differentiate between the two convictions and erroneously listed the term of probation for this criminal cause number as three years. The probation violations alleged in the petition to revoke were all alleged to have occurred after October 15, 2001. Appellant moved to dismiss the petition, arguing that the trial court had no jurisdiction because the terms of probation had ended on October 15, 2001. The trial court denied the motion, finding that "the sentencing minute entry and the oral pronouncement of sentence in court take precedence over the terms and conditions of probation signed."
Counsel essentially challenges that ruling in her arguable issue, in which she asserts that the court did not have jurisdiction to find appellant in violation of probation after October 15, 2001. She concedes that appellant has now successfully completed probation but argues this is a justiciable issue because appellant should be reimbursed for the probation fees he paid after October 15, 2001. We do not agree that the trial court lacked jurisdiction to find appellant had violated the terms of his probation.
The trial court correctly found that its oral pronouncement of the four-year probationary term and its listing of that term in the disposition minute entry established that appellant was to be placed on probation for four years for his DUI conviction, notwithstanding the clerical error in the written terms of probation. See State v. Hanson, 138 Ariz. 296, 674 P.2d 850 (App. 1983) (oral pronouncement of sentence governs when it conflicts with minute entry); State v. Madrid, 9 Ariz. App. 207, 209, 450 P.2d 719, 721 (1969) (when sentencing minute entry conflicts with docket entry, "the minutes of the lower court speak for themselves[,] import verity,... are controlling"). We also note that appellant's probation officer testified at the violation hearing that appellant had continued to comply with or had attempted to comply with the terms of his probation well after October 15, 2001, demonstrating that appellant was aware of the four-year term.
Pursuant to our obligation under Anders, we have searched the entire record and have found no fundamental error. Accordingly, we affirm the trial court's finding that appellant had violated the terms of his probation and the court's disposition order.
PHILIP G. ESPINOSA, Chief Judge
CONCURRING:
JOHN PELANDER, Presiding Judge
WILLIAM E. DRUKE, Judge (Retired)
|