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State v. Lara4/2/1992
FACTS AND JURISDICTION
In this consolidated proceeding, we review two court of appeals' opinions that address the same issue and reach different results: State v. Malone, 171 Ariz. 321, 830 P.2d 842 (App.1991) and State v. Lara, 170 Ariz. 203, 823 P.2d 70 (App.1990).
In Malone, defendant was convicted of armed robbery and kidnapping, both class 2 dangerous felonies. The trial court imposed aggravated sentences based, in part, on a finding that defendant had used a weapon in the commission of the crimes. The court of appeals affirmed, relying on State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980), to hold that the state could properly
use the weapon to: (1) increase the charge from robbery to armed robbery pursuant to A.R.S. § 13-1904; (2) enhance the sentence pursuant to an allegation and finding of dangerousness under A.R.S. § 13-604(G); and (3) aggravate the sentence pursuant to A.R.S. § 13-702(D)(2).
In Lara, defendant pled no contest to manslaughter, designated as a class 3 dangerous felony. The trial court imposed an aggravated sentence based, in part, on its finding that defendant had killed a human being and had used a dangerous instrument in doing so. Although the sentence imposed was within the range permitted by the plea agreement, defendant challenged it on appeal. The court of appeals remanded for resentencing, relying on State v. Orduno, 159 Ariz. 564, 769 P.2d 1010 (1989), to hold that because death of the victim is an "essential and irreducible" element of manslaughter, the trial court erred by considering the death as an aggravating factor at sentencing.
We granted review in both cases pursuant to Rule 31.19, Ariz.R.Crim.P., 17 Ariz.Rev.Stat.Ann. (A.R.S.) (1987), to clarify the situation. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24. We hold that Bly controls these non-DUI cases, and that the Orduno principle is limited to DUI cases.
QUESTION PRESENTED
Whether the holding in State v. Orduno, 159 Ariz. 564, 769 P.2d 1010 (1989), to the effect that the motor vehicle in a DUI case cannot also be used as a "dangerous instrumentality" to enhance sentencing, changes the rule of State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980), which held, in a non-DUI case, that the trial court could consider the use of a weapon for both enhancement and aggravation purposes.
Discussion
I. Arizona's Sentencing Scheme
A.R.S. § 13-701(C) sets forth the presumptive sentences for felony offenses. These sentences are subject to enhancement pursuant to A.R.S. § 13-604(F) and (G) if the felony is alleged and found to be "dangerous," i.e., involving the "intentional or knowing infliction of serious physical injury" or the "use or exhibition of a deadly weapon or dangerous instrument." Additionally, sentences imposed under these subsections may be aggravated or mitigated pursuant to factors set forth in A.R.S. § 13-702(C), (D) and (E). Statutory aggravating circumstances include use of a deadly weapon, A.R.S. § 13-702(D)(2), and the infliction of serious bodily injury, A.R.S. § 13-702(D)(1).
II. Bly and Orduno
In Bly, this c
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