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STATE v. BIRDSALL

No. 2 CA-CIV 2400.

116 Ariz. 117 (1977)

568 P.2d 424

The STATE of Arizona, Petitioner, v. Honorable Ben C. BIRDSALL, Judge of the Superior Court of Pima County, State of Arizona, Respondent, and Casimiro F. HERRERA, Real Party in Interest.

Court of Appeals of Arizona, Division 2.

Rehearing Denied February 28, 1977.

Review Granted March 29, 1977.

Attorney(s) appearing for the Case

Stephen D. Neely, Pima County Atty., by Paul S. Banales, Deputy County Atty., Tucson, for petitioner.

John M. Neis, Pima County Public Defender, by James E. Sherman, Asst. Public Defender, Tucson, for real party in interest.

OPINION

HATHAWAY, Judge.

Does the superior court have the power to strike or dismiss an allegation of a prior conviction included in a grand jury indictment? The respondent court did so, upon motion of the defendant, prior to adjudication of guilt of the prior conviction. The court, in granting the motion, gave as its reason that it believed it should have discretion in the sentencing and that the charge of which the defendant had been found guilty (burglary...

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