819 P.2d 975 (Ariz.App. Div. 1 1991), 1 CA-CR 90-887, State v. Bousley

Docket Nº:1 CA-CR 90-887.
Citation:819 P.2d 975, 169 Ariz. 389
Opinion Judge:[10] Kleinschmidt
Party Name:STATE of Arizona, Appellee, v. Kirk Anthony BOUSLEY, Appellant.
Attorney:[7] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., and Janet Keating, Asst. Atty. Gen., Phoenix, for appellee. [8] Dean W. Trebesch, Maricopa County Public Defender by Carol A. Carrigan, Deputy Public Defender, Phoenix, for appellant.
Case Date:April 02, 1991
Court:Court of Appeals of Arizona
 
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Page 975

819 P.2d 975 (Ariz.App. Div. 1 1991)

169 Ariz. 389

STATE of Arizona, Appellee,

v.

Kirk Anthony BOUSLEY, Appellant.

No. 1 CA-CR 90-887.

Court of Appeals of Arizona, First Division, Department B

April 2, 1991

       Redesignated as Opinion May 21, 1991. Review Granted Nov. 5, 1991.

       Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., and Janet Keating, Asst. Atty. Gen., Phoenix, for appellee.

       Dean W. Trebesch, Maricopa County Public Defender by Carol A. Carrigan, Deputy Public Defender, Phoenix, for appellant.

       OPINION

       KLEINSCHMIDT, Judge.

       Pursuant to a written plea agreement, the defendant pled no contest to two counts of armed robbery, each a class 2 felony, with one prior felony conviction, committed while on probation. At the time he entered his plea, he was completely advised of all of his constitutional rights and knowingly and voluntarily waived the same. The defendant was sentenced to an aggravated term of fifteen years flat time on each count, sentences to run concurrently with each other but consecutively to the sentence resulting from his probation violation. The defendant was ordered to pay $133 in restitution, a $100 felony assessment for each offense, and an $8 time payment fee. The judge further ordered that the defendant be given credit for 140 days of presentence incarceration.

       The defendant raises the following two issues on appeal:

       1. Did the factual basis for the plea support a conviction of armed robbery?

       2. Did the defendant knowingly, intelligently, and voluntarily enter into his plea?

       The defendant argues that the factual basis for the plea does not support a conviction for armed robbery because there is no evidence that the defendant committed the crimes with a deadly weapon, dangerous instrument, or simulated deadly weapon. The testimony regarding the factual basis follows. While robbing a convenience store, the defendant "simulated a gun in his pocket." Later that day while robbing another convenience store, the defendant "simulating a handgun under his shirt, approached the clerk at the counter ... and demanded all the money in the register, telling her that she should give it to him, or he's going to blast her."

       The Arizona Supreme Court has recently held that the elements of armed robbery require that a weapon, whether an actual deadly weapon, a dangerous instrument,...

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