State v. Malone

I respectfully dissent. My concern is about the trial court’s repeated use of the same factor — the gun — to aggravate punishment.

The defendant here committed armed robbery and kidnapping while using a deadly weapon. Because of his weapon he was properly charged with armed robbery rather than robbery. Under A.R.S. § 13-1904, and by definition, armed robbery is an aggravated form of robbery, made so precisely by the presence of such a weapon. For that reason, armed robbery presents a sentence exposure greater than does robbery.

So far so good. The problem arises, however, when this same gun is…