State v. Howell , 107 Ariz. 300 ( 1971 )

STRUCKMEYER, Chief Justice.

In this criminal appeal, Anthony Wayne Howell was informed against in the Superior Court of Maricopa County, Arizona, for robbery, Count 1, and assault with a deadly weapon, Count 2, to which charges he pleaded not guilty. Robbery is punishable by imprisonment for not less than five years. A.R.S. § 13-643. On November 19, 1970, the State filed an amended information for grand theft from the person, a felony, accompanied by a stipulation in these words:

“It is hereby stipulated by defendant and his counsel that this amended information is filed without objection for the purpose of entering a plea of guilty; it is further stipulated that if at a subsequent time this plea be withdrawn for any reason, this information may be re-amended without objection to allege the charge contained in the original information.”

The stipulation was signed by the defendant, by the public defender and a deputy county attorney. To the amended charge, defendant entered a plea of guilty. He was sentenced on the sixth day of January 1971 to imprisonment for not less than six nor more than eight years to date from the time of his arrest, August 1970.

Thereafter, the defendant filed a notice of appeal directed to the Court of Appeals, Division One, State of Arizona, appealing from the judgment and sentence pronounced upon him. On May 28, 1971, the Clerk of the Court of Appeals, being of the opinion that because the original information charging robbery carried a possible sentence of life imprisonment and because if defendant obtained a reversal, upon return to the Superior Court the former information might be reinstated, whereupon the criminal action would involve crimes over which the Court of Appeals has' no jurisdiction, caused the record to be transmitted to the Clerk of this Court, where it. was docketed as Criminal Cause 2327.

The jurisdiction and venue of the Court of Appeals is provided by A.R.S., § 12-120.21. Subsection A reads:

“A. The court of appeals shall have:

1. Appellate jurisdiction in all actions and proceedings originating in or permitted by law to be appealed from the superior court, except criminal actions involving crimes punishable by death or life inprisonment.” (Emphasis added.)

Jurisdiction depends upon the state of affairs existing at the time it is invoked, Gardner v. Gardner, 253 S.C. 296, 170 S.E.2d 372, and once having attached is not lost by subsequent events. Atlantic Corporation v. United States, 1 Cir., 311 F.2d 907. Under the Arizona enactment A.R.S. § 12-120.21, jurisdiction is dependent upon the punishment which is to be imposed under the charge.

The Clerk of this Court is ordered to transmit to the Clerk of the Court of Appeals, Division One, the record in this cause, with directions that it be entered upon the files of that court for disposition according to law.

HAYS, V. C. J., and UDALL and LOCKWOOD, JJ., concur.