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State v. Lara4/2/1992
ourt considered whether double jeopardy or double punishment considerations prohibited the legislature from establishing a sentencing scheme in which an element of a crime could also be used for enhancement and aggravation purposes. See also State v. Gutierrez, 130 Ariz. 148, 149, 634 P.2d 960, 961 (1981); State v. Tresize, 127 Ariz. 571, 574, 623 P.2d 1, 4 (1980). In Bly, defendant pled guilty to two counts of armed robbery, both class 2 dangerous felonies. Under section 13-604(G), the sentencing range was 7 to 21 years, with 10.5 years being the presumptive term. The trial court considered statutory aggravating and mitigating factors, including defendant's use of a deadly weapon, and, finding that the mitigation did not outweigh the aggravation, sentenced defendant to two concurrent presumptive terms of 10.5 years.
On appeal, defendant argued, in part, that his sentences violated the fifth amendment's prohibition against double punishment because the trial court used one factor (use of a deadly weapon) to raise the offense from robbery to armed robbery and also considered and weighed the same factor as an aggravating circumstance. Bly, 127 Ariz. at 371, 621 P.2d at 280. This court disagreed, pointing out that the use of a deadly weapon as an aggravating factor "does not expose appellant to additional punishment beyond the enhanced sentence. It is only within the range provided for dangerous class 2 felonies that the trial Judge may consider the aggravating
and mitigating circumstances." Id. at 372, 621 P.2d at 281. We concluded that " f the presence of a deadly weapon, as an element of the crime or otherwise, moves the legislature to impose more severe punishment for the offense, we must abide by the legislative determination." Id. at 373, 621 P.2d at 282.
In the more recent Orduno case, this court considered whether "the operation of a motor vehicle in a DUI case also constitute the use of a dangerous instrument under A.R.S. § 13-604(F) so as to enhance the DUI penalty." 159 Ariz. at 565-66, 769 P.2d at 1011-12. In resolving this question, we looked to the legislative intent underlying A.R.S. § 13-604(F) and (G). We concluded that, in the DUI context, a motor vehicle cannot be characterized as a dangerous instrumentality for purposes of enhanced sentencing because the legislature "well understood that the dangerous use of a motor vehicle was involved," and therefore "could not have intended that identical DUIs be punished differently depending on the whim of a particular jury panel." Id. at 566, 769 P.2d at 1012. Orduno expressly acknowledged our earlier decision in Bly and, by implication, the many non-DUI cases relying on Bly. We specifically limited our holding in Orduno "to a determination of the proper interplay between the 'dangerous instrument' language of A.R.S. § 13-604 as applied to a motor vehicle in a DUI case." Id.
III. Court of Appeals' Decisions
Until Lara, the court of appeals consistently applied Bly to resolve cases challenging the use of a single element to both enhance and aggravate a sentence. See, e.g., State v. Olsen, 157 Ariz. 603, 606-07, 760 P.2d 603, 606-07 (App.1988) (negligent homicide); State v. Just, 138 Ariz. 534, 551, 675 P.2d 1353, 1370 (App.1983) (second degree murder); State v. Ry
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