Opinion
No. 2 CA-CR 426.
December 11, 1974.
Defendant was convicted in the Superior Court, Cochise County, Cause No. 8553, Anthony T. Deddens, J., of second-degree burglary, and he appealed. The Court of Appeals, Krucker, J., held that where defendant failed to file an appeal on his conviction and imposition of probation within 20 days of his January judgment and sentence, he was precluded from appealing the August revocation of his probation and imposition of sentence; and that defendant's only proper remedy was by way of a petition for postconviction relief.
Affirmed.
N. Warner Lee, Atty. Gen., by Robert S. Golden, Asst. Atty. Gen., Phoenix, for appellee.
William F. Olson, Bisbee, for appellant.
OPINION
The appellant seeks to challenge the revocation of his probation and the imposition of a sentence of three to four years for second-degree burglary. The sentencing judge informed appellant that one of the conditions of his probation was that he, apparently a Mexican national, not re-enter the United States at any time within the next four years. Approximately six months later, appellant was found in Bisbee, Arizona.
For the following reasons the appeal is denied. The conviction, imposition of sentence and suspension of probation in the instant case were governed by the new rules of criminal procedure since the complaint was filed after September 1, 1973. Because appellant failed to file an appeal on his conviction and imposition of probation within twenty days of his January judgment and sentence he is precluded from now appealing the August revocation of his probation and imposition of sentence under Rule 31, Rules of Criminal Procedure, 17 A.R.S. Rather, appellant's only proper remedy is by way of a Rule 32 petition. See, Rule 32.1(d) and comment thereto.
Appellant's contention that he was given an excessive sentence is also not properly raised. See, Rule 32.1(c). Furthermore, a sentence imposed which is within the statutory limits will be upheld unless there is a clear showing of an abuse of discretion. State v. Masters, 108 Ariz. 189, 494 P.2d 1319 (1972).
Affirmed.
HATHAWAY, C.J. and HOWARD, J., concur.