Opinion
No. 1903.
December 17, 1969. Rehearing Denied January 13, 1970.
Appeal from the Superior Court, Maricopa County, William A. Holohan, J.
Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., and Moise Berger, Maricopa County Atty., for appellee.
Ross P. Lee, Maricopa County Public Defender, by Anne Kappes and Grant Laney, Deputy Public Defenders, Phoenix, for appellant.
On the 2d day of October, 1969, a decision was filed in the above-entitled matter, 459 P.2d 307, 105 Ariz. 47, in which the defendant was convicted of robbery, burglary, and assault with a deadly weapon, with prior convictions. Thereafter, the defendant was given a sentence of ten years for his conviction on Count 3 — assault with a deadly weapon.
The appellant Mays, on October 17, 1969, made a motion for rehearing and for oral argument. In the motion it was alleged that on August 12, 1968, the appellant filed a request for oral argument in accordance with Rule 25 of the Rules of this Court, 17 A.R.S. It appears from the records in the case that, by inadvertence and mistake, the cause of action was put on the submitted list of cases for "written opinions" and the oral argument had not been heard.
Since the defendant was deprived of the privilege of presenting an oral argument, this Court did, on the 4th day of November 1969, grant the appellant's motion and set the matter for oral argument for November 25, 1969, at ten A.M.
The argument was duly presented and fully considered by the Court, and on November 25, 1969 it was ordered that the case be submitted.
It appears from the motion for rehearing and for oral argument, together with the memorandum of points and authorities submitted in support of the same, that all of the issues raised in the motion were considered and disposed of in the original opinion filed on the 2d day of October, 1969.
Wherefore, it is ordered that the opinion heretofore filed is affirmed, and in keeping with that opinion the case is remanded to the Superior Court of Maricopa County for the purpose of re-sentencing on the conviction of assault with a deadly weapon, with directions that the trial court fix both the minimum and maximum term of imprisonment.
UDALL, C.J., LOCKWOOD, V.C.J., and STRUCKMEYER, McFARLAND and HAYS, JJ., concur.