Fierro v. MacDougall, 80-5948
| Decision Date | 26 June 1981 |
| Docket Number | No. 80-5948,80-5948 |
| Citation | 648 F.2d 1259 |
| Parties | Robert Allen FIERRO, Petitioner-Appellant, v. Ellis MacDOUGALL, et al., Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David R. Cole, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellees.
Lawrence H. Fleischman, Asst. Public Defender, Tucson, Ariz., for petitioner-appellant.
Appeal from the United States District Court for the District of Arizona.
Before MERRILL, Circuit Judge, MARKEY, * Customs and Patent Appeals Judge, and FARRIS, Circuit Judge.
Appellant stands convicted by the Arizona state court of eighteen state crimes ranging from armed rape to auto theft. Prior convictions also were alleged. He was sentenced to a total term of 184 years in the Arizona state prison. Consecutive sentences were imposed in the case of seven of the counts. The longest sentence for a single count was for 45 to 60 years. The judgment was affirmed on appeal and appellant petitioned for a writ of habeas corpus in the District Court for the District of Arizona. The petition was dismissed and this appeal was taken.
Appellant's sole contention is that he was denied due process in sentencing for the reason that the sentencing court was without authority to impose consecutive sentences. The Arizona legislature has not expressly authorized by statute the imposition of consecutive sentences and appellant argues that under the doctrine of separation of powers it is for the legislature and not the court to fix maximum periods of confinement. He asserts that by its action the court has more then trebled the maximum sentence imposed by law for any of the crimes involved.
Appellant's contention is without merit. 1 The imposition of consecutive sentences is nothing more than the imposition, for each crime, of the sentence fixed by legislative act. Such sentencing does not constitute usurpation of a legislative function but rather is literal compliance with that which the legislature has prescribed. 2
Judgment affirmed.
* Honorable Howard T. Markey, Chief Judge of the United States Court of Customs and Patent Appeals, sitting by designation.
1 In Burchett v. Cardwell, 493 F.2d 492, 494 (9th Cir. 1974), we held that under Arizona decisional law the imposition of consecutive sentences was proper. In Ramirez v. Arizona, 437 F.2d 119, 120 (9th Cir. 1971), we held that the cumulation of sentences was a matter of state policy with which we...
To continue reading
Request your trial
-
People v. Montgomery
...(two life sentences to run consecutively, defendant must serve minimum sentence for each before eligible for parole); Fierro v. MacDougall, 648 F.2d 1259 (9th Cir.1981), cert. denied, 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981) (consecutive sentences totalling 184 years do not violat......
- Fisher v. A.G. Becker Paribas Inc.
-
Branch v. Cupp
...issue. See Roy v. Watson, 669 F.2d 611 (9th Cir.), cert. denied, 457 U.S. 1108, 102 S.Ct. 2910, 73 L.Ed.2d 1318 (1982); Fierro v. MacDougall, 648 F.2d 1259 (9th Cir.), cert. denied, 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981). We are satisfied that the consecutive sentences imposed h......
-
Pitmon v. State
...of two separate crimes would represent an outcome reasonably to be expected by persons of ordinary intelligence. See Fierro v. MacDougall, 648 F.2d 1259, 1260 (9th Cir.1981) (concluding that, even where legislature did not authorize the imposition of consecutive sentences, due process claus......