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State v. Lara4/2/1992
n as an aggravating circumstance under A.R.S. § 13-702(D)(2).
Disposition
The sentences imposed by the trial courts are, in each case, affirmed. The opinion of the court of appeals in Lara is vacated. Although we agree with the result reached by the court of appeals in Malone, its opinion in that case is also vacated as having been superseded by this opinion.
FELDMAN, Chief Justice, specially Concurring.
Because he used a gun in a robbery, defendant was prosecuted and convicted of armed robbery, a more serious crime than simple robbery. See A.R.S. §§ 13-1904 (armed robbery), 13-1902 (simple robbery). Because he used that gun, the sentence for armed robbery was then enhanced. See A.R.S. § 13-604(G). For the same reason, the enhanced sentence for armed robbery was also aggravated. See A.R.S. § 13-702(D)(2). All of this transpired because of this court's decision in State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980), which seemingly has been interpreted to hold that the legislature intended that an act used as an element to increase the severity of the crime could also be used as a factor to enhance and then to aggravate the sentence. See, e.g., State v. Martinez, 130 Ariz. 80, 81, 634 P.2d 7, 8 (Ct.App.1981).
One might well argue both that Bly did not expressly state that this was the legislature's intent and, even more cogently, that we should not infer so illogical an intent absent a clear legislative expression, which is notably lacking in these statutes. Today's decision thus reaffirms another unfortunate rule seemingly followed only in Arizona.
Nevertheless, I join in Justice Moeller's opinion because I share his "healthy respect for stare decisis " and his observation that, in reliance on this unwise statutory construction, hundreds if not thousands of sentences have been imposed in Arizona since Bly was decided in 1980. This is one of those cases in which we simply cannot undo that which has been done but can only hope that the legislature will correct our errors.
For these reasons, I concur with Justice MOELLER's opinion.
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