
    408 P.2d 408
    In the Matter of the Application for a Writ of Habeas Corpus, Marlin Tudor LEE, Petitioner, v. The STATE of Arizona and Pima County, Respondents.
    No. H-79.
    Supreme Court of Arizona,
    En Banc.
    Dec. 8, 1965.
    Marlin Tudor Lee, in pro. per.
    Darrell F. Smith, Atty. Gen., Robert S. Murlless, James S. Tegart, Asst. Attys. Gen., for respondents.
   STRUCKMEYER, Vice Chief Justice.

Marlin Tudor Lee filed a petition for writ of habeas corpus in this Court, alleging that he had been convicted of a felony in the Superior Court of Pima County and that he was an inmate of the State Penitentiary at Florence, Arizona. The only significant assertion in his petition is that at the time of being sentenced to prison his counsel was not present.

This Court referred the petition to the Attorney General for a response. From the response, it was established that Lee had requested and the court had appointed counsel to represent him in a felony prosecution ; that he entered a plea of guilty on July 24, 1962; and that thereafter on July 31, 1962, petitioner being present in open court with counsel, he was placed upon probation for a term of three years on the usual conditions, which probation was subsequently revoked ; and that on the first day of October, 1964, he was sentenced in open court to a term of imprisonment in the State Penitentiary. Petitioner’s attorney was not present in court at the time of sentencing.

While there is a sharp conflict in authorities as to whether the presence of counsel for an accused is necessary at the time of sentence, we think the better rule is that when counsel has not been waived the absence thereof invalidates the sentence. In re Boyce, 51 Cal.2d 699, 336 P.2d 164. 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 judgment and commitment of the Superior Court of Pima County is set aside. Custody of petitioner is ordered transferred from the State Prison at Florence, Arizona, to the Sheriff of Pima County for resentencing in accordance with this decision.

LOCKWOOD, C. J., and BERNSTEIN, UDA'LL, and McFARLAND, JJ., concur.  