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99 Ariz. 268

408 P.2d 408

Docket No. H-79.

Lee v. State

In the Matter of the Application for a Writ of Habeas Corpus, Marlin Tudor LEE, Petitioner, v. The STATE of Arizona and Pima County, Respondents.

Arizona Supreme Court

Decided December 8, 1965.

Arizona Supreme Court · decided 1965-12-08

Key passage — most relied on by later courts

““While there is a sharp conflict in authorities as to whether the presence of counsel for an accused is necessary at the time of sentence, we think the better rule is that when counsel has not been waived the absence thereof invalidates the sentence. In re Boyce, 51 Cal.2d 699 , 336 P.2d 164 . [1959] If there is any one time that a defendant on a criminal charge may be in need of an attorney to speak in his behalf or to advise him of his legal rights it can well be at the time of sentencing.””

quoted by 1 later decision, including State v. Steed

““If there is any one time that a defendant on a criminal charge may be in need of an attorney to speak in his behalf or to advise him of his legal rights it can well be at the time of sentencing.” Lee v. State, 99 Ariz. 269 , 408 P.2d 408 (1965).”

quoted by 1 later decision, including 5 Ariz. App. 516 - State v. Lindsay

Relies on 51 Cal. 2d 699 - In Re Boyce

Good law ✅— No negative treatment on recordhow we know

Decided 1965-12-08

How this case has been cited

Cited by 15 later decisions — most recently September 1982

1 federal appellate · 13 state decisions

70196519701980decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Marlin Tudor Lee, in pro. per.

¶2Darrell F. Smith, Atty. Gen., Robert S. Murlless, James S. Tegart, Asst. Attys. Gen., for respondents.

¶3STRUCKMEYER, Vice Chief Justice.

¶4Marlin Tudor Lee filed a petition for writ of habeas corpus in this Court, alleging that he had been convicted of a felony in the Superior Court of Pima County and that he was an inmate of the State Penitentiary at Florence, Arizona. The only significant assertion in his petition is that at the time of being sentenced to prison his counsel was not present.

¶5This Court referred the petition to the Attorney General for a response. From the response, it was established that Lee had requested and the court had appointed counsel to represent him in a felony prosecution; that he entered a plea of guilty on July 24, 1962; and that thereafter on July 31, 1962, *269 petitioner being present in open court with counsel, he was placed upon probation for a term of three years on the usual conditions, which probation was subsequently revoked; and that on the first day of October, 1964, he was sentenced in open court to a term of imprisonment in the State Penitentiary. Petitioner's attorney was not present in court at the time of sentencing.

¶6While there is a sharp conflict in authorities as to whether the presence of counsel for an accused is necessary at the time of sentence, we think the better rule is that when counsel has not been waived the absence thereof invalidates the sentence. In re Boyce, 51 Cal.2d 699, 336 P.2d 164. If there is any one time that a defendant on a criminal charge may be in need of an attorney to speak in his behalf or to advise him of his legal rights it can well be at the time of sentencing.

¶7The judgment and commitment of the Superior Court of Pima County is set aside. Custody of petitioner is ordered transferred from the State Prison at Florence, Arizona, to the Sheriff of Pima County for resentencing in accordance with this decision.

¶8LOCKWOOD, C.J., and BERNSTEIN, UDALL, and McFARLAND, JJ., concur.

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