Fred D. MARTIN, Petitioner,
v.
Frank A. EYMAN, Warden et al., Respondents.
No. H-242.
Supreme Court of Arizona, In Banc.
July 7, 1967.Fred D. Martin, in pro. per.
Darrell F. Smith, Atty. Gen., James S. Tegart, Asst. Atty. Gen., for respondents.
PER CURIAM.
On April 17, 1967, Fred D. Martin filed an application for a Writ of Habeas Corpus in this court. The application together with the Attorney General's response disclose that on February 1, 1965, the petitioner with the aid of court appointed counsel entered a plea of guilty in the Superior Court of Pinal County to the charge of burglary, a felony; and, it appearing to the court that the ends of justice would be best served if sentence was not then imposed, petitioner was placed on probation and sentence was suspended for a term of three years. Thereafter, on May 3, 1965, petitioner's probation was revoked and a sentence of not less than three nor more than five years in the Arizona State Prison was then imposed. Petitioner's counsel was not present in court at the time of sentencing.
As we said in Lee v. State, 99 Ariz. 269, 270, 408 P.2d 408, 409 (1965), "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." The right to have counsel present at the time of sentencing was not waived by the petitioner.
We hold, therefore, that the judgment and commitment of the Superior Court of Pinal County is set aside. Custody of the petitioner is ordered transferred from the State Prison at Florence, Arizona, to the Sheriff of Pinal County for resentencing in accordance with this decision.
BERNSTEIN, C.J., McFARLAND, V.C.J., and STRUCKMEYER, UDALL and LOCKWOOD, JJ., concur.