State v. Bousley
| Decision Date | 02 April 1991 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 169 Ariz. 389,819 P.2d 975 |
| Parties | STATE of Arizona, Appellee, v. Kirk Anthony BOUSLEY, Appellant. 90-887. |
| Court | Arizona Court of Appeals |
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, or a simulated deadly weapon, be used. See State v. Garza Rodriguez, 164 Ariz. 107, 112, 791 P.2d 633, 638 (1990). A mere verbal threat to use a deadly...
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State v. Ellison
...Provides means or opportunity to another person to commit the offense." A.R.S. § 13-301.4 In the recent opinion of State v. Bousley, 169 Ariz. 389, 819 P.2d 975 (App.1991), petition for review filed May 22, 1991, another department of this court, applying Garza to the same facts as are pres......
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State v. Bousley
...proceeding, we review two court of appeals opinions that addressed the same issue but reached opposite conclusions. State v. Bousley, 169 Ariz. 389, 819 P.2d 975 (App.1991); State v. Ellison, 169 Ariz. 424, 819 P.2d 1010 (App.1991). We have jurisdiction under Ariz. Const. art. 6, § 5(3) and......