Arizona Court of Appeals, 1968

White v. State

Arizona Court of Appeals · Decided May 17, 1968 · Hathaway, Krucker, Molloy

8 Ariz. App. 46; 442 P.2d 869; 1968 Ariz. App. LEXIS 462

Opinion of the Court

KRUCKER, Judge.

A denial of appellant’s petition for a writ of habeas corpus is the subject of review in this appeal. The appellant, who was convicted of four counts of armed robbery 1 and sentenced to four concurrent terms of imprisonment of not less than thirty years nor more than life, claimed that one conviction was void because the jury returned a verdict of “not guilty”.

A response to the petition, filed by the State, alleged that the jury did find the appellant guilty and that a certified copy of the jury’s finding was appended thereto and incorporated therein by reference. The superior court’s minute entry recites:

“The Attorney General having filed a response to Petition for Writ of Habeas Corpus and to Court’s Order to Show Cause, and the Court being fully advised in the premises, Orders Petition for Writ of Habeas Corpus * * * is denied.”

On appeal, complaint is made of the summary denial of the petition without a hearing. However, a hearing is not required if an applicant, as a matter of law, is not entitled to relief. Landers v. State ex rel. Eyman, 7 Ariz.App. 197, 437 P.2d 681 (1968). If the record refutes the allegations of the petition, summary denial is proper. Yeaman v. United States, 326 F.2d 293 (1963); Commonwealth ex rel. Willis v. Myers, 200 Pa.Super. 453, 190 A.2d 365 (1963).

Our examination of the record in the habeas corpus proceedings below disclosed that the exhibit referred to in the Attorney General’s response was not appended thereto although it would appear from the minute entry set forth above that it formed the basis of the superior court’s ruling. Deeming a writ of certiorari to the Maricopa County superior court (the court *47in: which the robbery proceedings took place) necessary to the exercise of our appellate jurisdiction in this cáse, we issued a writ accordingly. A.R.S. § 12-120.21, subsec. A(4). The record discloses a jury verdict of “guilty” as to the conviction which the appellant sought to attack. Therefore his claim was without merit and there was no error in the denial of relief.

Order affirmed.

HATHAWAY, C. J., and MOLLOY, J., Concur.

. The convictions were affirmed by the Arizona Supreme Court almost two years ago. See, State v. White, 101 Ariz. 164, 416 P.2d 597 (1966).

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