PROBATION Historical development.-The penal codes of Arizona of 1887, 1901, and 1913 were copied almost in their entirety from the California penal code. The provision for suspension of sentence and probation first appeared in the penal code of 1913 as section 1126 and was copied from section 1203 of the California penal code. Although California's section has been amended a great deal in substance and extent, the Arizona section was carried with only slight changes into the 1928 Revised Code as section 5105 and has not been amended since. The provisions for an adult probation officer in counties of the first class were added in 1927 and became sections 5106, 5107, and 5108 of the 1928 Revised Code.1 They were amended in 19312 to permit appointment of assistants where needed. Present organization.-Probation in Arizona flows from the power of the court to suspend imposition of sentence.3 It is within the court's power in all cases in which the discretion as to sentence is vested in the court. This includes everything but sentences for first-degree murder and train wrecking, in which cases discretion is vested in the jury." 4 Probation control, administration, and support are entirely local, by the county. Only counties of the first class may have an adult probation officer and then only with the approval of the board of supervisors. In other counties he was placed on probation for a term of 3 years. The defendant then appealed: first, from an order denying his motion for a new trial; and second, from the order suspending sentence. The court held that there could be no appeal on the second ground as appeals could only be taken from a final judgment and the suspending of imposition of sentence was not a final judgment. The court further held that no appeal would lie from the order denying the motion for a new trial. The defendant had made an offer to furnish bond for his wife's maintenance after his motion for a new trial had been denied. This, the court maintained, was inconsistent with the demand for a new trial. The defendant would be benefitted more than harmed by this procedure, and it was held that his offer to furnish bond was a waiver of his right to appeal from the order denying his motion for a new trial. 1 Ariz. Rev. Code Ann. (Struckmeyer, 1928) §§ 5106, 5107, 5108. 2 Ariz. Laws 1931, ch. 108, §§ 1, 2, 3. Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 5105. 4 Id. § 4585. Id. § 4732. Indian Fred v. State, 36 Ariz. 48, 282 Pac. 930 (1929). the juvenile probation officer serves for adults with no extra compensation.8 Appointment is by the judge of the superior court and service is at his pleasure. If there are criminal divisions of the court, such judges make the appointment." Expenses are a charge on the county.10 The only county in Arizona which has used the authority to have an adult probation office is Maricopa, of which Phoenix is the county seat. Maricopa county has two divisions of the superior court devoted to criminal business and has two full time probation officers. Procedure.-After conviction by plea of guilty or verdict, where discretion is conferred as to the extent of punishment, the court has the power to place the defendant on probation in the following manner: First, imposition of sentence may be suspended and the defendant released under probation for a term not exceeding the maximum sentence provided by law; second, if the sentence is a fine with the alternative of a jail sentence if the fine is not paid, after imposing sentence the court may suspend the execution of imprisonment, to the end that the defendant may be placed on probation in order to pay the fine.11 Under this statute there can be no suspension of a sentence of imprisonment, but only the suspension of the imposition of the sentence.12 Where the sentence is a fine or alternative imprisonment for a specific term, the latter can be suspended, but where the sentence is fine and imprisonment, there can be no suspension of the imprisonment.13 Suspension of sentence can be exercised only in accordance with the statutes. Where a sentence is a fine only which carried no alternative imprisonment and thus could be enforced by civil action only, it is improper to place the defendant on probation under the condition that if the fine were not paid, probation could be revoked and the defendant imprisoned.11 Ariz. Rev. Code Ann. (Courtright, Supp. 1936) § 5106. Ariz. Rev. Code. Ann. (Courtright, Supp. 1936) § 5106. 10 Id. § 5107. " Id. (Struckmeyer, 1928) § 5105. State v. McKelvey, 30 Ariz. 265, 246 Pac. 550 (1926). 13 Silver v. State, 37 Ariz. 418, 295 Pac. 311 (1931). 14 Smith v. State, 37 Ariz. 262, 293 Pac. 23 (1930). Investigation to determine eligibility.-In Maricopa County, which has the only separate adult probation staff, the judges of the two departments of the superior court handling criminal cases follow the practice of requesting presentence investigations in nearly every case. The investigations usually include an interview with the defendant, the inquiry as to his criminal record, interviews with the complaining witness and with the prosecutor handling the case, and where time is sufficient or it is of particular importance in a case, interviews with the family, employer and acquaintances of the defendant. Schedules are filled out for every person convicted and call for information about the crime, the outcome of the prosecution, the physical characteristics of the defendant, his past criminal record, his military record, his family history and the procedural history of the present case. Reports of presentence investigations are made orally. The probation officers recognize the desirability of written reports, but the judges prefer informal oral reports, and as the department is furnished no clerical staff, it becomes virtually impossible to present any comprehensive written report. A day or two before the case is set for sentence, the probation officer confers with the judge and relates the results of his investigation and together they discuss the action to be taken in regard to the sentence. During the year 1935 there were 326 defendants convicted of criminal offenses in Maricopa County, of which 110 were placed on probation.15 Pima County, of which Tuscon is the county seat, has one adult probation officer, but since he is also the only juvenile probation officer, his major activities are devoted to the juvenile cases. The result is that there is no time for presentence investigations in adult cases. There was only one such investigation made in the year 1935 and first half of 1936, although there were approximately 120 convictions in the superior court during this same period. In some counties recommendations concerning the sentence to be imposed are made to the court by the county 15 From statistics prepared by the Probation Office for the U. S. Census Bureau. attorney, and in support of them information that he has obtained during his investigation and prosecution of the case is made available to the court. Persons eligible for probation.-The only limit to the eligibility of defendants for probation is that discretion as to the extent of the punishment must lie in the court.16 This means the court may grant probation except after conviction of a crime for which the jury fixes the punishment, such as first-degree murder 17 and trainwrecking.18 The court may place the defendant on probation if "there are circumstances in mitigation * * * or the ends of justice will be subserved thereby." 19 While probation may be granted for nearly every offense in Arizona and instances of a grant of probation will probably be found for almost every offense but murder, sentence is suspended most frequently in cases of young offenders and in cases of those defendants who have had no previous records. Different judges follow varying practices in the use of probation. One judge does not like to grant probation in cases of auto theft. Most of the judges do not consider granting probation in cases of armed robbery. On the whole, the judges do not follow any set practices but are more inclined to reach their determination according to the facts and circumstances surrounding each individual case. Usually, in addition to the fact of the particular offense and the criminal record of the defendant, they consider his general reputation and character and particularly his mental attitude. Terms and conditions of probation.-The statutes do not specify any terms and conditions upon which probation must be granted. Instead, it is left entirely in the discretion of the court to fix "such terms and conditions as it shall determine." 20 Except for the payment of a fine, which is a sentence rather than a condition of probation, the usual conditions imposed are to abstain from the use of alcoholic liquor, to avoid evil associates, and to obey the laws and instructions of the probation officer. Investigation to determine eligibility.—In Maricopa County, which has the only separate adult probation staff, the judges of the two departments of the superior court handling criminal cases follow the practice of requesting presentence investigations in nearly every case. The investigations usually include an interview with the defendant, the inquiry as to his criminal record, interviews with the complaining witness and with the prosecutor handling the case, and where time is sufficient or it is of particular importance in a case, interviews with the family, employer and acquaintances of the defendant. Schedules are filled out for every person convicted and call for information about the crime, the outcome of the prosecution, the physical characteristics of the defendant, his past criminal record, his military record, his family history and the procedural history of the present case. Reports of presentence investigations are made orally. The probation officers recognize the desirability of written reports, but the judges prefer informal oral reports, and as the department is furnished no clerical staff, it becomes virtually impossible to present any comprehensive written report. A day or two before the case is set for sentence, the probation officer confers with the judge and relates the results of his investigation and together they discuss the action to be taken in regard to the sentence. During the year 1935 there were 326 defendants convicted of criminal offenses in Maricopa County, of which 110 were placed on probation.15 Pima County, of which Tuscon is the county seat, has one adult probation officer, but since he is also the only juvenile probation officer, his major activities are devoted to the juvenile cases. The result is that there is no time for presentence investigations in adult cases. There was only one such investigation made in the year 1935 and first half of 1936, although there were approximately 120 convictions in the superior court during this same period. In some counties recommendations concerning the sentence to be imposed are made to the court by the county 15 From statistics prepared by the Probation Office for the U. S. Census Bureau. |