(dissenting).
I dissent from that part of the majority opinion that holds that a plea of guilty and the voluntary payment of a fine is not a waiver of the right to appeal. The constitution provides for the right to appeal. But the procedures governing the taking of an appeal must be adhered to or the right is lost. State v. Heron, 92 Ariz. 114, 374 P.2d 871.
The majority opinion goes against the great weight of authority on the question whether the right may be lost by waiver. As was said in State v. Pefley, 80 Idaho 525, 528-529, 335 P.2d 340, 341:
*356“While there are cases to the contrary, according to the great weight of authority, where a defendant in a criminal case satisfies in full the judgment against him by voluntarily paying the fine imposed upon him, he waives his right to appeal. Annotation, 18 A.L.R. 867; Annotation, 74 A.L.R. 638; 22 C. J.S. Criminal Law § 390, p. 577; 24 C.J.S. Criminal Law § 1668, p. 267; State v. Pray, 30 Nev. 206, 94 P. 218; State v. Cohen, 45 Nev. 266, 201 P. 1027, 18 A.L.R. 864; People v. Pyrros, 323 Mich. 329, 35 N.W.2d 281; State v. Schreiber, 5 W.W.Harr. 424, 35 Del. 424, 166 A. 669; Washington v. Cle-land, 49 Or. 12, 88 P. 305; McFarland v. Hunt, 79 Idaho 262, 313 P.2d 1076.
“In State v. Cohen, supra, the court was considering the question of the waiver of the right to appeal by the voluntary satisfaction of the judgment. The court said [201 P. 1028]:
“'While there are cases to the contrary, the weight of authority is to the effect that an appeal or writ of error will be dismissed when there has been a voluntary payment by the defendant of the fine imposed.’
“The court in such case further held that after the satisfaction of a judgment, there was nothing on which a judgment of the appellate court could act effectively; that if a judgment be reversed the defendant could not recover a fine paid; that the matter became moot; and that a satisfaction of a judgment by the voluntary payment of a fine constituted a waiver of the right to appeal.”
See also Anno. 42 A.L.R.2d 995, 1007 “Appeal from Justice Court.”
I also note that the dissenting opinion in Town of White Sulphur Springs v. Voise, 136 Mont. 1, 23, 343 P.2d 855, 866 cited by the majority states:
“As to that portion of the opinion which holds that voluntary payment of a fine does not constitute a termination of the action and preclude a review of the conviction, I dissent for the reason that, in my opinion, it is minority view among courts of last resort, the majority of which hold to the contrary. See annotations 18 A.L.R. 867, 74 A.L.R. 638, and subsequent cases."
For the foregoing reasons I respectfully dissent.
STRUCKMEYER, J., concurs in this dissent.