 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Hall11/8/1990
This case arises out of the trial court's dismissal of an allegation that the charge of aggravated assault was a dangerous offense pursuant to A.R.S. section 13-604(G). The state brought this special action to require the trial court to reinstate the allegation of dangerousness. We accepted jurisdiction, granted relief, and indicated that this opinion would follow. We decide that the state is entitled to allege that the crime is a dangerous offense because the law on this issue has been so long settled in favor of the state, and because the application of State v. Orduno, 159 Ariz. 564, 769 P.2d 1010 (1989), upon which the respondent relied in the trial court, is restricted to DUI cases. For reasons which we discuss below, however, we believe that some of the cases on which the state relies are flawed, and that the precise question raised by this case may be worthy of further consideration by the supreme court.
During a traffic altercation, the defendant fired a gun and the bullet struck the victim's truck. The defendant was charged with one count of aggravated assault, a Class 3 felony. Subsequently, the state filed an allegation pursuant to A.R.S. section 13-604(G) that the crime was a dangerous offense.
Notwithstanding that in State v. Rodriguez, 126 Ariz. 104, 612 P.2d 1067 (App.1980), this court decided the identical point against the defendant, the trial court granted the defendant's motion to dismiss the allegation of dangerousness. In Rodriguez, the defendant pled guilty to two counts of aggravated assault committed with a gun, a dangerous offense. His argument was succinctly characterized by the court:
The defendant argues that as to Count Three, there was no evidence to support an aggravated assault other than the fact a gun was used in the crime. Therefore, with respect to Count Three, the fact used to establish the aggravated assault is the same fact used to establish the dangerous nature of the offense. When you exclude the fact (use of a gun) necessary to establish the aggravated assault under A.R.S. § 13-1204, there is nothing left to base a charge under A.R.S. § 13-604(G) (dangerous offender).
126 Ariz. at 106, 612 P.2d at 1069.
We concluded that this argument, which was based on a claim that the use of the allegation of dangerousness was a form of double punishment, was not persuasive. We observed that an aggravated assault may be accomplished without the use of a gun, and we believed that the legislature intended to authorize an increased punishment under A.R.S. section 13-604(G) when a gun is used.
In granting the motion to dismiss the allegation of dangerousness, the trial court apparently relied on the recent case of State v. Orduno, in which the supreme court held that in a DUI case it was impermissible for the state to allege that the offense was a dangerous one based on the fact that the defendant had committed the offense with a dangerous instrument -- a motor vehicle. The court reasoned that the use of the motor vehicle was an essential element of the crime of driving while under the influence. Orduno, 159 Ariz. at 566, 769 P.2d at 1012. It said that the clear intent of A.R.S. section 13-604(G) was to enhance sentencing when the use of a deadly weapon or dangerous instrument increases the seriousness and dangerousness of the underlying crime. Id. It concluded that when c
Page 1 2 3 Arizona DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|