621 P.2d 279 (Ariz. 1980), 4958, State v. Bly

Docket Nº:4958-PR.
Citation:621 P.2d 279, 127 Ariz. 370
Opinion Judge:[10] Hays
Party Name:STATE of Arizona, Appellee, v. Paul Dennis BLY, Appellant.
Attorney:[7] Robert K. Corbin, Atty. Gen., Phoenix, by Bruce M. Ferg, Asst. Atty. Gen., Tucson, for appellee. [8] Charles L. Weninger, Tucson, for appellant.
Case Date:November 18, 1980
Court:Supreme Court of Arizona
 
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Page 279

621 P.2d 279 (Ariz. 1980)

127 Ariz. 370

STATE of Arizona, Appellee,

v.

Paul Dennis BLY, Appellant.

No. 4958-PR.

Supreme Court of Arizona.

November 18, 1980

In Banc.

Rehearing Denied Dec. 23, 1980.

Robert K. Corbin, Atty. Gen., Phoenix, by Bruce M. Ferg, Asst. Atty. Gen., Tucson, for appellee.

Charles L. Weninger, Tucson, for appellant.

Page 280

[127 Ariz. 371] HAYS, Justice.

Appellant plead guilty to two counts of armed robbery, a class 2 felony, in violation of A.R.S. § 13-1904. Because appellant used a deadly weapon to commit his crimes, the range of sentencing available was prescribed by A.R.S. § 13-604(G). In determining whether to impose the presumptive term rather than the minimum or maximum sentence allowed, the trial judge looked to the aggravating and mitigating factors of A.R.S. § 13-702(C), (D) and (E). The trial judge did not find the evidence of mitigation sufficiently substantial to require that appellant be sentenced to less than the presumptive term and imposed concurrent sentences of 10.5 years. Appeal was taken to the Court of Appeals. State v. Bly, 127 Ariz. 374, 621 P.2d 283 (App.1980). Granting the Petition for Review, we vacate the opinion of the Court of Appeals and affirm the judgment of conviction and sentence.

Appellant would have us hold that double jeopardy and double punishment prohibitions prevent the legislature from considering an element of a crime more than once in exercising its authority to prescribe punishment for a single crime. We decline to do so.

The double jeopardy prohibition of the fifth amendment to the United States Constitution is enforceable against the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In Brown v. Ohio, 432 U.S. 162, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), the Supreme Court said:

(T)he Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial. (footnote omitted).

Appellant has been placed in jeopardy a single time for two offenses, both armed robbery. The plea of guilty and judgment of conviction have neither been set aside nor relitigated in any manner. Appellant has neither been convicted nor acquitted of any offenses necessarily included in the crime of armed robbery...

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