State v. Bly

Decision Date18 November 1980
Docket NumberNo. 4958-PR,4958-PR
Citation621 P.2d 279,127 Ariz. 370
PartiesSTATE of Arizona, Appellee, v. Paul Dennis BLY, Appellant.
CourtArizona Supreme Court

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

Charles L. Weninger, Tucson, for appellant.

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 and we therefore feel that he has not been held to answer more than once for each offense of armed robbery.

Appellant argues that a single factor, use of a dangerous weapon, increased his sentence in four different ways, thereby constituting multiple punishments for the same act. Appellant maintains his sentence was increased in the following manner:

1. By raising the offense from robbery, A.R.S. § 13-1902, a class 4 felony, to armed robbery, A.R.S. § 13-1904, a class 2 felony;

2. By making a prison term mandatory, A.R.S. § 13-604(G);

3. By using the fact as an aggravating circumstance to be weighed against mitigating factors, A.R.S. § 13-702;

4. By making parole unavailable until 2/3 of the sentence has been served rather than 1/2 the sentence pursuant to A.R.S. § 41.1604.06(D).

It is the public policy of this state, as reflected by the criminal code, to condemn, correct, or deter transgressions which harm either individual or public interests. A.R.S. § 13-101. Power resides with the legislature to define that conduct which will not be tolerated in an ordered society and to provide punishment for those who violate public policy. State v. Patton, 120 Ariz. 386, 586 P.2d 635 (1978); State v. Hickey, 114 Ariz. 394, 561 P.2d 315 (1977).

Within perimeters set by our federal and state constitutions, the roles of the courts, penal institutions, and parole authorities are defined by the legislature. State v. O'Donnal, 110 Ariz. 552, 521 P.2d 984 (1974). The legislature, having determined what punishment is appropriate for a given crime, leaves to the judiciary the exercise of a certain amount of discretion in fitting punishment to the circumstances of the particular crime and the individual defendant. State v. Patton, supra; State v. O'Donnal, supra. Unless the punishment is so severe as to be disproportionate to the crime, see State v. Mullaley, 127 Ariz. 92, 618 P.2d 586 (1980), the judiciary has discretion only to the extent provided by the legislature.

Sentencing is presently designed to exact certain retribution. While formerly the penal philosophy had been to tailor the sentencing decision to fit the circumstances of an individual defendant, ostensibly to maximize rehabilitation, it is now public policy "(t)o impose just and deserved punishment on those whose conduct threatens the public peace." A.R.S. § 13-101(6).

Our legislature has abandoned the indeterminate sentencing policy found in previous enactments of the criminal code for a policy of presumptive sentencing with a narrow range of deviation available to account for unusual aggravating or mitigating circumstances. A.R.S. §§ 13-601 to -604, -701 to -703. In order to effectuate that end, the criminal code classifies crimes by placing them in groups of similar severity and establishing a presumptive sentence for each group of crimes. The decision to deviate from the presumptive sentence by weighing unusual aggravating or mitigating circumstances is left to judicial discretion.

Instead of including a particular sentence for a given offense in the statute defining the elements of the crime, each offense is placed in a group of crimes which the legislature deems to be of similar severity. The presumptive sentence for that particular class of crimes is to be imposed on the vast majority of first offenders who commit the crime. To determine the punishment for each class of crimes, a number of legislative decisions were necessary: What is the appropriate length of sentence? Should probation be an option? What range of sentence should be available for unusual aggravating or mitigating circumstances? When should the defendant be eligible for parole? The answers to these questions are found in the sentencing provisions of the criminal code and the answers are drawn in such a way as to make the sentencing decision more certain and more uniform.

The legislature, in addition to reducing disparity and inconsistency in sentencing, has identified another serious problem it seeks to correct: the use of a deadly weapon or dangerous instrument in the commission of crime. No matter what the crime, the potential for...

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101 cases
  • State v. Rodriquez
    • United States
    • Arizona Court of Appeals
    • November 23, 1984
    ...such use of the weapon for both purposes constituted double punishment. A similar argument was raised and rejected in State v. Bly, 127 Ariz. 370, 621 P.2d 279 (1980). That case is controlling and the argument raised by defendant is without PROSECUTOR'S CLOSING ARGUMENT Defendant argues tha......
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    ...may authorize trial courts to use the same circumstance for both aggravation and enhancement of a sentence. State v. Bly, 127 Ariz. 370, 373, 621 P.2d 279, 282 (1980). “[T]he authorization must be explicit and the specific factor expressly identified.” State v. Alvarez, 205 Ariz. 110, 113 ¶......
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    ...other first degree murders, and we abide by their decision." 143 Ariz. 142, 161, 692 P.2d 991, 1010 (1984) (citing State v. Bly, 127 Ariz. 370, 373, 621 P.2d 279, 282 (1980), cert. denied, Carriger v. Arizona, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985)). Because the trial court fo......
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    • June 27, 2002
    ...the murder, a judge can properly use a single fact to support the application of more than one aggravating factor. State v. Bly, 127 Ariz. 370, 373, 621 P.2d 279, 282 (1980). It is not the separate counting per se that is a problem but the weight allocated. In State v. Scott, we The use of ......
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