State v. Biscoe ( 1975 )

112 Ariz. 98 (1975) 537 P.2d 968

STATE of Arizona, Appellee,
v.
Paul Melvin BISCOE, Appellant.

No. 3088.

Supreme Court of Arizona, En Banc.

July 15, 1975.

Bruce E. Babbitt, Atty. Gen. by Cleon M. Duke, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by John Foreman, Deputy Public Defender, Phoenix, for appellant.

HAYS, Justice.

Paul Melvin Biscoe, the appellant, was found guilty by a jury of robbery in violation of A.R.S. § 13-641, § 13-653. Immediately after the verdict, the issue of Biscoe's alleged prior conviction for lewd and lascivious acts was tried to the jury which found that the appellant had been convicted of that charge. He now appeals, contending that the proof of the prior conviction was insufficient as a matter of law.

On this issue, the state offered into evidence a certified copy of a minute entry of an order of a judge of the Superior Court of Maricopa County finding Paul Melvin Biscoe guilty of lewd and lascivious acts and suspending sentence for a probationary period of five years. A probation officer testified that the Paul Melvin Biscoe previously placed under his supervision by the court's order was the same person just found guilty of robbery.

The state bears the burden of proving a prior conviction of the defendant and of proving that it was indeed the defendant who was previously convicted. State v. Ross, 107 Ariz. 240, 485 P.2d 810 (1971). Official records were offered into evidence by the state in accord with Rule 44(g)(1), Arizona Rules of Civil Procedure, 16 A.R.S. and Rule 19.3, 1973 Arizona Rules of Criminal Procedure, 17 A.R.S. Official records are those kept in the performance of duty by an officer even if not specifically required by statute. State v. Black, 16 Ariz. App. 587, 494 P.2d 1332 (1972). There is verity imported to a clerk's minutes. LaMar v. LaMar, 19 Ariz. App. 128, 505 P.2d 566 (1973). The certified copy of the minute entry of the judge's order was sufficient to prove that Paul Melvin Biscoe was found guilty of a prior felony. The testimony of the probation officer was sufficient to establish that the Paul Melvin Biscoe entrusted to his supervision pursuant to that order was the same person as the defendant before him.

The sentence imposed of from 30 years to life in the Arizona State Prison was within statutory limits and not so excessive as to constitute an abuse of discretion by the trial judge. State v. Settle, 111 Ariz. 394, 531 P.2d 151 (1975).

Judgment and sentence affirmed.

CAMERON, C.J., STRUCKMEYER, V.C.J., and LOCKWOOD and HOLOHAN, JJ., concur.