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State v. Bedell3/22/2004
o claim that he was entitled to a jury trial on the state's allegation that he had prior convictions. The state responds that Bedell waived this argument by not raising it in the trial court. Indeed, failure to raise an issue below waives the issue on appeal, absent fundamental error. See State v. Gendron, 168 Ariz. 153, 812 P.2d 626 (1991). Bedell did not assert the error was fundamental in his opening brief, mentioning it for the first time in his reply brief. See Ariz. R. Crim. P. 31.13(c)(1)(vi), 17 A.R.S. (appellant must include in opening brief arguments on issues presented); Ariz. R. Crim. P. 31.13(c)(3) (reply brief may only respond to questions of law or fact raised by answering brief); State v. Brown, 169 Ariz. 35, 816 P.2d 932 (App. 1991) (argument raised for first time in reply brief not preserved for appellate review); cf. State v. Preston, 197 Ariz. 461, 4 P.3d 1004 (App. 2000) (appellate court need not address unsupported contentions of fundamental error).
Additionally, we note that even if the Apprendi argument were not waived, it is meritless because Apprendi and its progeny d o not require a jury to find the fact of a prior conviction. See, e.g., Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455 ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury."); State v. Benenati, 203 Ariz. 235, 52 P.3d 804 (App. 2002) (strictly limiting Apprendi exception to fact of prior conviction).
We affirm Bedell's convictions and sentences.
CONCURRING:
M. JAN FLOREZ, Judge
JOSEPH W. HOWARD, Judge
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