 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Biddinger v. State3/11/1998
MEMORANDUM OPINION AND JUDGMENT
MANNHEIMER, Judge, Concurring.
David E. Biddinger was convicted, based upon his plea of guilty, of robbery in the second degree, a class B felony. AS 11.41.510. Biddinger was a second felony offender for purposes of presumptive sentencing and therefore faced a presumptive sentence of four years of imprisonment. AS 12.55.125. Superior Court Judge Larry R. Weeks found that one aggravating factor applied: "the defendant has a criminal history of repeated instances of conduct violative of s, whether punishable as felonies or misdemeanors, similar in nature to the offense for which the defendant is being sentenced[.] See AS 12.55.155(c)(21). Judge Weeks imposed an aggravated presumptive sentence of seven years with three years suspended, placing Biddinger on probation for a period of five years following his release from confinement. Biddinger appeals, arguing that Judge Weeks erred in finding the aggravating factor. We affirm.
In arguing that Judge Weeks erred in finding the aggravating factor, Biddinger points to Nell v. State, 642 P.2d 1361, 1365-66 (Alaska App. 1982), where we concluded that the legislature "intended to emphasize the fact that robbery is a crime against the person and deemphasize the theft aspects of the offense." From our Discussion in Nell, Biddinger argues that robbery is not a crime against property, but a crime against a person. He appears to concede that he has a prior criminal history of property offenses, but points out that he has only one prior conviction for assault. In rejecting Biddinger's argument, Judge Weeks found that Biddinger had an extensive history of property crimes. He noted that, in general, Biddinger had committed his crimes under the influence of drugs or alcohol. He concluded that this history of property offenses was sufficiently similar to Biddinger's present offense to support finding the aggravating factor.
AS 11.41.510(a) states:
A person commits the crime of robbery in the second degree if, in the course of taking or attempting to take property from the immediate presence and control of another, the person uses or threatens the immediate use of force upon any person with the intent to
(1) prevent or overcome resistence to the taking of the property or the retention of the property after taking; or
(2) compel any person to deliver the property or engage in other conduct which might aid in the taking of the property.
Although robbery is a crime against the person because it requires the use of force or the threat of force, it is also a crime against property. In order for the defendant's behavior to fall within the aggravating factor, his prior criminal conduct must be "similar in nature to the offense for which the defendant is being sentenced." See AS 12.55.155(c)(21). The aggravating factor requires only that the crimes be similar. We see no reason to require Judge Weeks to allow Biddinger to evade the application of the aggravating factor because Biddinger has now escalated the severity of his property offenses by taking the property by force. The sentence is AFFIRMED. MANNHEIMER, Judge, Concurring.
I concur in the result reached by the majority; I am writing separately to further explain the legal issue raised by Biddinger and why, under the facts of this case, any error is harmless.
Biddinger was convicted of robbery. Based on Biddinger's history of assaultive crimes and theft crimes, the superior court found that the State had proved aggravating factor AS 12.55.155(c)(21): that "the defendant has a criminal history of repeated instances of conduct violative of s, whether punishable as felonies
Page 1 2 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|