holding dangerousness finding “implicit” in guilty verdict for aggravated assault by use of a deadly weapon or dangerous instrument
How later courts described this case
- holding dangerousness finding “implicit” in guilty verdict for aggravated assault by use of a deadly weapon or dangerous instrument
- finding dangerous offense “implicit” in guilty verdict for aggravated assault by use of a deadly weapon or dangerous instrument
- voluntary absence inference bolstered by defendant’s admission at sentencing that he had absconded
- rule that sentence may not be changed after lawful imposition is not altered by fact that trial court acted under a misapprehension not engendered by defendant
Written by the judges who cited it.
The opinion
FROEB, Judge,
dissenting:
The first sentence of 10.5 years was in fact less than the presumptive; it was a mitigated term.
In my opinion, that sentence was invalid because the court found mitigating factors which were not legally recognizable. I am unable to agree that either a withdrawn plea agreement or illegal drug usage are mitigating factors under A.R.S. § 13-702(E)(5) which will justify a less than presumptive term.
That being the case, the mitigated sentence could not stand and the trial court properly vacated it under rule 24.3. If it had not done so, the state could have successfully challenged the mitigating circumstances on appeal. See A.R.S. § 13-4032(6).
It follows therefore that the trial court correctly resentenced appellant to aggravated concurrent terms of 11.5 years. I would affirm both the conviction and the sentence.