Cardinale v. Industrial Commission

Appellant was convicted of having committed robbery while armed with a gun and with a prior conviction in trials by jury on December 16, 1976 (robbery) and December 21, 1976 (prior felony). He appeals from the judgments and sentences of the trial court entered on December 21, 1976. The facts pertinent to a determination of the issues on appeal are as follows. Appellant was originally convicted on the same charge of robbery with a gun in 1975. This court reversed that conviction on July 1, 1976. The mandate and order from this court reversing the conviction were received by the Clerk of the Maricopa County Superior Court on August 19, 1976. The parties agree that pursuant to Rule 8.2(d), Arizona Rules of Criminal Procedure, the last day for trial was October 18, 1976, unless the time limits were extended pursuant to Rule 8.2(e) and Rule 8.5, Arizona Rules of Criminal Procedure. On October 18, 1976, the case was called for trial, but the state moved for a continuance, and the motion was granted. On December 14, 1976, the trial began, but ended in a mistrial. The next day, December 15, 1976, a new jury was impanelled and the case again proceeded to trial. On December 16, 1976, the jury convicted the appellant of armed robbery with a gun. The same jury heard evidence that day on the trial of the allegation of a prior conviction, but that trial ended in a mistrial. Appellant was finally found guilty of the prior conviction by a new jury on December 21, 1976. On the same day, he waived the pre-sentence report and asked that he be sentenced immediately. The court granted his request and sentenced appellant to serve a term of not less than 12 nor more than 15 years at the Arizona State Prison. The appellant urges three issues on appeal, and the state urges two issues by way of a cross-appeal. We will discuss first the issues raised by appellant, and then discuss the matters raised by the state.