Collins v. Doyle

OPINION

STEVENS, Judge.

The petitioners seek special action relief in relation to the 22 August 1974 order entered by The Honorable Lawrence H. Doyle, Jr., the Respondent Judge, by which order the petitioners’ motion to compel discovery was denied.

The petitioners are the plaintiffs in Maricopa County Superior Court cause number C-287015. On 16 January 1974 they filed their complaint against Paul David Harris La Barre, the respondent-real party in interest herein (La Barre) seeking to recover the value of certain jewelry allegedly owned by the plaintiff Floyd Robert Collins and allegedly converted on 9 May 1973 by La Barre and other named civil suit defendants.

On 3 January 1974, and in relation to the event charged in the civil suit, an indictment was filed in the Maricopa County Superior Court cause number Cr-79201, charging as follows:

“The grand jurors of Maricopa County, Arizona accuse PAUL DAVID La-BARRE, JACK L. HOUSTON and JAMES FLOYD HANNA, charging that in Maricopa County, Arizona, on or about the 9th day of May 1973, the aforesaid defendant (s) did then and there commit burglary of a motor vehicle of Floyd R. Collins located at 4743 E. Montecito, City of Phoenix, County of Maricopa, all in violation of A.R.S. § 13-301 and § 13-302, as amended 1969.

"For a further and separate cause of action, being a different offense from, but connected in its commission with the charge set forth in Count I hereof, the said PAUL DAVID LaBARRE, JACK L. HOUSTON and JAMES FLOYD HANNA, are accused by this indictment of the crime of GRAND THEFT, a felony, committed as follows, to-wit:

“COUNT II: That in Maricopa County, Arizona on or about the 9th day of May, 1973, the aforesaid defendants did then and there stole [sic] from Floyd R. Collins property to-wit: miscellaneous Indian jewelry of a value of more than $100.00, all in violation of A.R.S. § 13-661, § 13-662, § 13-663, as amended 1968 and § 13-671.”

This Court is informed that the indictment has been dismissed as to Houston and Hanna. On 12 March 1974 in the criminal cause, The Honorable Frederic W. Heine-man presiding, and on motion of a Maricopa County Deputy County Attorney, both counts of the indictment were dismissed as to La Barre. The order contains no recitation as to whether it was entered with prejudice. The order did not recite, in the language of Criminal Rule 16.7(d), 17 A. R.S., a finding “that the interests of justice require that the dismissal be without prejudice.”

Thereafter, in the civil suit, Collins commenced the taking of the La Barre deposition as an adverse party. La Barre declined to answer questions relating to the 9 May 1973 event urging the Fifth Amendment right against self-incrimination. The motion to compel discovery then followed, the motion was denied and special action relief was then sought in this Court.

The crucial question is, the maximum time elements within which a criminal cause must be tried not having expired, was the 12 March dismissal a dismissal with prejudice or, in the absence of Criminal Rule 16.7 (d) language in the order, may the State refile the charges contained in the indictment? We hold that the case of Schultz v. Peterson, 22 Ariz.App. 205, 526 P.2d 412 (decided on 19 September 1974), is controlling. We hold that the indictment was dismissed with prejudice.

The Respondent Judge was in error in overruling the motion to compel discovery insofar as that ruling was based on La Barre’s claim on the Fifth Amendment privilege as to burglary and grand theft. We express no opinion as to whether there may be proper claims of the Fifth Amendment privilege arising out of and concerning other aspects and consequences of the 9 May 1973 events.

Special action relief is granted in part as specified in this opinion.

DONOFRIO, P. J., and OGG, J., concur.