Capital Sentencing Guide

A.R.S.§13-751(F)(1)

A.R.S. §13-751(F)(1)-PRIOR CONVICTION-LIFE IMPRISONMENT OR DEATH

A.R.S. §13-751(F)(1) provides that it shall be an aggravating circumstance where "[t]he defendant has been convicted of another offense in the United States for which under Arizona law a sentence of life imprisonment or death was imposable."

History:  This is one of the six original aggravating circumstances included in the 1973 capital sentencing statute. It is similar to (F)(2) in that it considers prior convictions. However, (F)(1) looks to the possible sentence under Arizona law at the time that the prior crime occurred, not the nature of that prior crime. This aggravating circumstance goes to the determination of the defendant's character, and is not a recidivist or enhancement statute meant to serve as a warning to first offenders and to encourage their reform. State v. Steelman, 126 Ariz. 19, 612 P.2d 475 (1980).

The Meaning of “Conviction”: What Can be Used: A conviction means a determination of guilt, not a formal entry of judgment. State v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995). A determination of guilt occurs by a plea in open court, or by the return of a guilty verdict. Id. Prior convictions that are under collateral attack may still be used to satisfy the (F)(1) aggravating circumstance. State v. Jordan, 126 Ariz. 283, 614 P.2d 825 (1980). Until the prior conviction is invalidated, it may support an (F)(1) finding.

Relevant Date of the Offense for Determining Sentence Eligibility:  The relevant date for (F)(1) purposes of determining whether a defendant could have received life or death is the date the prior offense occurred, not the date of sentencing for that offense . State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992). In Atwood, the defendant committed a crime in California at a time when Arizona law provided a sentence of five years to life for the offense. Before the defendant was sentenced in California, Arizona law had been modified so that a life sentence was no longer possible for that offense. The Court held that the (F)(1) aggravating circumstance exists if, on the date the offense occurred, it was possible to receive a life sentence under Arizona law.

Time Sequence in Relation to the Capital Homicide: There is no requirement that the prior conviction be based on an offense that occurred before or concurrent with the capital homicide. The Court has noted that (F)(1) makes no reference to when the acts underlying the convictions must be committed. Thus, in State v. Moody, 208 Ariz. 424, 94 P.3d 1119 (2004), the defendant was tried for two murders committed on two separate occasions and found guilty of both by the same jury. At the sentencing hearing, the trial court properly found that each murder conviction supported applying (F)(1) to the other, even though the first murder was committed prior to the second.

Offenses Providing for Life:  Currently, the following Arizona statutes provide life sentences: A.R.S. § 13-705, 13-706(A), 13-709.02(A), 13-751, 13-1003(D), 13-1406(D), 13-3410(A), 13-3410 (B), and 13-1423(B).  Some of these statutes provide for a life sentence only if certain enhancement factors exist. In State v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993), the Court said that a prior offense that normally does not carry a life sentence nonetheless will satisfy (F)(1), if the sentence was enhanced to life imprisonment. The Court also held in Spencer that an enhanced sentence could satisfy (F)(1) if it were imposed under a statute, such as A.R.S. §13-604.02 that became law after 1973, when (F)(1) was enacted.


(F)(1) FINDING UPHELD

State v. Jordan (Jordan I), 114 Ariz. 452, 561 P.2d 1224 (1976)
(F)(1) finding upheld. The defendant had previously been convicted in Texas of four felonies, namely robbery by assault and three counts of aggravated robbery. He argued that none of his convictions were punishable by life imprisonment or death in Arizona. The statute in effect at the time, A.R.S. §13-643, specifies a minimum punishment without listing a maximum punishment with one exception. Another statute in effect at the time, A.R.S. §13-1644, authorizes a maximum punishment of life imprisonment where no limit to the duration of punishment is otherwise stated. Thus, under Arizona law in effect at the time, the defendant could have been punished by life imprisonment and therefore the (F)(1) finding was correct.

State v. Arnett (Arnett I), 119 Ariz. 38, 579 P.2d 542 (1978)
(
F)(1) finding upheld. The Court rejected the defendant's argument that the classification created by the (F)(1) factor is not necessary to promote any compelling state interest and is therefore violative of the constitutional guarantee of equal protection. Specification of the punishment for a crime is peculiarly a question of legislative policy. The statute in question has a rational relationship to the furtherance of a legitimate state purpose (providing information about the character of the defendant that the legislature deems relevant to punishment for first degree murder). The defendant’s prior conviction in California was for the crime of lewd and lascivious acts upon a child under the age of 14 years. In Arizona, a similar act committed upon a child under the age of 15 years was punishable from five years to life, and thus satisfied the requirements of this factor.

State v. Watson (Watson II), 120 Ariz. 441, 586 P.2d 1253 (1978)
(F)(1) finding upheld based on felony robbery conviction.

State v. Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979)
(F)(1) finding upheld without discussion. The defendant had a prior conviction of possession of marijuana for sale with a prior conviction, punishable from 5 years to life imprisonment.

State v. Arnett (Arnett II), 125 Ariz. 201, 608 P.2d 778 (1980)
(F)(1) finding upheld on resentencing without discussion. See Arnett I noted above.

State v. Mata (Mata I), 125 Ariz. 233, 609 P.2d 48 (1980)
(F)(1) finding upheld without discussion on resentencing.

State v. Sylvester Smith, 125 Ariz. 412, 610 P.2d 46 (1980)
(F)(1) finding upheld. The defendant was convicted of murder in Texas in 1968. The trial court judicially noticed and relied on a 1973 Texas statute to determine that the 1968 conviction for murder with malice satisfied the (F)(1) factor. The Court found this not to be error because the offense was, at a minimum, equivalent to second degree murder in Arizona, and in Arizona a life sentence could be imposed for that crime.

State v. Steelman (Steelman II), 126 Ariz. 19, 612 P.2d 475 (1980)
(F)(1) finding upheld. The defendant was convicted of nine counts of first degree murder and five first degree robbery counts, which were committed after the murder at issue. The Court held that the sentencing statute makes no reference to when the acts underlying the convictions must be committed.  (F)(1) goes to the determination of a defendant’s character and is not a recidivist or enhancement statute meant to serve as a warning to first offenders and encourage their reform. The defendant’s prior convictions were properly used as an aggravating factor under (F)(1) even though this prior conviction was a result of the case being submitted to the trial court on the basis of the grand jury transcripts.

State v. Jordan (Jordan II), 126 Ariz. 283, 614 P.2d 825 (1980)
(F)(1) finding upheld. The Court rejected the defendant’s argument that convictions must occur before the commission of the murder for which he received the death sentence. The Court also rejected the defendant’s argument that convictions are not final because they are being collaterally attacked by means of petitions for habeas corpus. Until a prior conviction is set aside, it may be used to enhance a sentence, though invalid prior convictions may not be used as an aggravating circumstance to support the death penalty.

State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981)
(F)(1) finding upheld. The Court held that certified copies of prior first degree murder convictions satisfy (F)(1) because these crimes are punishable by life imprisonment or death in Arizona.

State v. Gretzler (Gretzler II), 128 Ariz. 583, 627 P.2d 1081 (1981)
Special action in which the defendant's pleas to nine prior murder convictions in California were upheld as not void, and could be used as an aggravating circumstance under Arizona law ((F)(1)).

State v. Watson (Watson III), 129 Ariz. 60, 628 P.2d 943 (1981)
(F)(1) finding upheld based on a robbery conviction.

State v. Vickers (Vickers I (Ponciano murder)), 129 Ariz. 506, 633 P.2d 315 (1981)
(F)(1) finding upheld. Prior conviction for assault with a deadly weapon under former A.R.S. §13-249 was sufficient to establish this aggravator.

State v. Ricky Tison (Ricky Tison I), 129 Ariz. 526, 633 P.2d 335 (1981)
(F)(1) finding should have been made by the trial court. The defendant was convicted of seventeen counts of assault with a deadly weapon for the events that took place at the prison in Florence and at his capture in Pinal County. The trial court believed that these charges could have been brought in a single information or indictment along with the charges in this case. The Court found that this viewpoint unduly limits the statutory reach of the legislation. These were separate criminal offenses that took place at the prison and at the roadblock. They were punishable by life imprisonment and should have been considered as (F)(1) aggravating circumstances.

State v. Raymond Tison (Raymond Tison I), 129 Ariz. 546, 633 P.2d 355 (1981)
See discussion in Ricky Tison I.

State v. Schad (Schad I), 129 Ariz. 557, 633 P.2d 366 (1981)
(F)(1) factor upheld. Prior conviction for second degree murder was sufficient to uphold the factor.

State v. Joseph Smith (Joseph Smith II), 131 Ariz. 29, 638 P.2d 696 (1982)
(F)(1) factor upheld. Prior convictions for rape, rape in the first degree, and murder in the first degree, sufficient to support trial court’s finding of the factor. The defendant was sentenced to death for the murder of two victims in this case. The finding of a prior conviction of murder was based, as to each victim, on the murder of the other victim.

State v. Blazak (Blazak II), 131 Ariz. 598, 643 P.2d 694 (1982)
(F)(1) finding upheld without discussion. The trial court based its (F)(1) finding on prior convictions for robbery, and assault with intent to commit murder.

State v. Valencia (Valencia III), 132 Ariz. 248, 645 P.2d 239 (1982)
(F)(1) finding upheld. Prior convictions in Arizona of rape, kidnapping, and robbery sufficient to support trial court’s finding of the factor.

State v. Gretzler (Gretzler III), 135 Ariz. 42, 659 P.2d 1 (1983)
(F)(1) finding upheld. Nine prior convictions for first degree murder sufficient to support the trial court’s finding of the factor.

State v. Richmond (Richmond II), 136 Ariz. 312, 666 P.2d 57 (1983)
(F)(1) finding upheld. Prior conviction for murder sufficient to support trial court’s finding of this aggravating circumstance even though the prior conviction was obtained after the conviction in the instant case, but before resentencing.

State v. Harding (Wise, Concannon murder), 137 Ariz. 278, 670 P.2d 383 (1983)
(F)(1) finding upheld. Prior conviction and sentence to life imprisonment for dangerous or deadly assault by prisoner sufficient to support trial court’s finding of factor.

State v. Jordan (Jordan III), 137 Ariz. 504, 672 P.2d 169 (1983)
(F)(1) finding upheld. The Court reiterated that the defendant's arguments against the use of his four prior felony convictions had already been heard and rejected in Jordan I, and that these prior convictions had been proven beyond a reasonable doubt at trial.

State v. Harding (Gage murder), 141 Ariz. 492, 687 P.2d 1247 (1984)
(F)(1) finding upheld. Prior convictions in Arizona of dangerous or deadly assault by prisoner, and two counts of first degree murder sufficient to support trial court’s finding of this factor.

State v. Gerlaugh (Gerlaugh II), 144 Ariz. 449, 698 P.2d 694 (1985)
(F)(1) finding upheld. The defendant had previously been convicted of robbery. He did not contest the (F)(1) finding on appeal. He did not contest the existence of the prior conviction, nor the fact that a life sentence was imposable for that crime.

State v. Bracy, 145 Ariz. 520, 751 P.2d 464 (1985)
(F)(1) finding upheld. Prior conviction in Illinois on three counts of first degree murder sufficient to support trial court’s (F)(1) finding.

State v. Hooper, 145 Ariz. 538, 751 P.2d 482 (1985)
(F)(1) finding upheld. Prior conviction in Illinois on three counts of first degree murder sufficient to support trial court’s finding of factor.

State v. Bernard Smith, 146 Ariz. 491, 707 P.2d 289 (1985)
(F)(1) finding upheld. The defendant had been convicted of three prior armed robberies in Arizona which were on appeal at the time of this murder trial. Under Arizona law, the defendant had received a mandatory life sentence for each of those convictions. The Court reiterated that until a conviction is set aside, it should count as a conviction under this aggravating circumstance.

State v. Tittle, 147 Ariz. 339, 710 P.2d 449 (1985)
(F)(1) finding upheld. The defendant had a 1965 California robbery conviction. He acknowledged that in 1965 a first-time robbery conviction in Arizona was punishable by five years to life. The Court rejected the argument that robbery was not punishable by life imprisonment in Arizona at time of the defendant’s capital sentencing. The trial court was required to look at the potential penalty imposable at time the defendant was sentenced on the original conviction.

State v. Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986)
(F)(1) finding upheld. The defendant had previously been convicted of aggravated assault, assault with intent to commit rape, assault with a deadly weapon, armed burglary, and lewd and lascivious acts. Some of these priors were discussed in an earlier appeal of this case in State v. Castenada, 111 Ariz. 264, 528 P.2d 608 (1974). Here, the defendant claimed that there was no factual basis for his competency to plead guilty to those earlier offenses. The record indicates, however, that two mental health experts testified to the fact that the defendant was competent to plead guilty. The defense then argued that the court never notified the defendant that by pleading guilty, these convictions could be used to support the imposition of the death penalty. Again, the record indicates that the judge did discuss the fact that the prior convictions could be considered in sentencing on the capital case.

State v. Moorman, 154 Ariz. 578, 744 P.2d 679 (1987)
(F)(1) finding upheld without discussion.

State v. Arnett (Arnett III), 158 Ariz. 15, 760 P.2d 1064 (1988)
(F)(1) finding again upheld based on a California conviction for lewd and lascivious acts upon a child under fourteen. While this conviction supports both an (F)(1) and (F)(2) finding, there is no constitutional prohibition against using it as support for those aggravating circumstances as long as it is only weighed once in sentencing.

State v. Mauro (Mauro II), 159 Ariz. 186, 766 P.2d 59 (1988)
(F)(1) finding upheld. This was based on a Colorado conviction for felony menacing. The Court rejected the defendant’s argument that (F)(1) violates double jeopardy or double punishment principles under A.R.S. §13-116.

State v. Vickers (Vickers II (Holsinger murder)), 159 Ariz. 532, 768 P.2d 1177 (1989)
(F)(1) finding upheld. The defendant had previously been convicted of assault with a deadly weapon, murder in the first degree, and dangerous or deadly assault by a prisoner. The first degree murder conviction had been set aside and a new trial ordered, but the other two convictions were valid and punishable under Arizona law by life imprisonment. Thus, the other two convictions still supported this aggravating circumstance.

State v. Schad (Schad III), 163 Ariz. 411, 788 P.2d 1162 (1989)
(F)(1) finding upheld. The defendant had previously been convicted of second degree murder, which occurred in connection with mutual acts of sodomy. The defendant argued that changes in the criminal code reducing sodomy to a misdemeanor and the elimination of second degree felony murder require that this Utah conviction not be considered in sentencing. The Court disagreed and argued that it must look to the penalty in effect at the time the defendant was sentenced for the prior crime. In 1968, the maximum penalty for second degree murder was life imprisonment. Furthermore, the underlying offense was not sodomy, but second degree murder based on the manner in which the sodomy was performed. The victim in that case was found in a closet with his hands and feet bound and two pieces of cloth around his neck. The cloth around the neck was apparently used to restrict the flow of blood to the brain to heighten the erotic stimulus. Aside from the issue of the constitutionality of consensual sodomy statutes, a state may lawfully punish a person for engaging in conduct that exhibits a knowing or reckless disregard for human life.

State v. Ronald Williams, 166 Ariz. 132, 800 P.2d 1240 (1987)
(F)(1) finding upheld with almost no discussion. The defendant had two prior felony convictions for murder at the time he was sentenced for the 1981 murder of a Scottsdale man during a burglary. The Court summarily agreed with the trial court that these two prior murder convictions, despite any of the circumstances surrounding those murders, sufficiently met the (F)(1) standard.

State v. Schaaf
, 169 Ariz. 323, 819 P.2d 909 (1991)
(F)(1) finding upheld without discussion.

State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992)
(F)(1) upheld. In 1974 the defendant was convicted in California of lewd and lascivious conduct for a crime which occurred on June 18, 1974. Arizona’s 1974 equivalent, A.R.S. § 13-652, provided for a sentence of five years to life for the offense. The defendant argued that the statute that succeeded § 13-652, which modified the sentence to less than life imprisonment, should control because it was in effect at the time the defendant was sentenced for his California crime. The Court clarified that the relevant date for (F)(1) purposes is the date the prior offense occurred, not the date of sentencing for that offense, or the date of sentencing for the capital murder conviction.

State v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993)
(F)(1) finding upheld. Before his capital murder conviction, the defendant had been convicted of armed robbery, a class 2 felony, with two prior convictions and while on probation. He had received a life sentence for that conviction under A.R.S. § 13-604.02. Because that statute had been enacted after § 13-751(F)(1), he argued it could not be used to support (F)(1). The Court rejected this argument, stating that the legislature is presumed to know the law when it passes a statute, and that it presumed § 13-604.02 would apply to § 13-751.   Moreover, the defendant did not dispute that his armed robbery sentence was lawful.

State v. Henry (Henry I), 176 Ariz. 569, 863 P.2d 861 (1993)
(F)(1) finding upheld. Prior conviction in California of armed robbery used to support (F)(1) finding. Since this conviction could be used to support both (F)(1) and (F)(2), the Court clarified that on resentencing, the conviction could be weighed only once.

State v. Stuard, 176 Ariz. 589, 863 P.2d 881 (1993)
(F)(1) finding not contested on appeal. The defendant was convicted of three separate counts of first degree murder (different dates) and a previous robbery. The other murder counts and the robbery supported both the (F)(1) and (F)(2) findings.

State v. Richmond (Richmond III), 180 Ariz. 573, 886 P.2d 1329 (1994)
(F)(1) factor upheld. Prior conviction for murder sufficient to support trial court’s finding even though the prior conviction was obtained after the conviction in the instant case, but before resentencing.

State v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995)
(F)(1) finding upheld. The defendant was convicted of dangerous kidnapping and dangerous aggravated assault at the same time as his first-degree murder conviction. The kidnapping and aggravated assault offenses occurred prior to the murder, while all charges were tried together. The defendant argued that these "Hannah" priors were insufficient to support an (F)(1) finding because a conviction is not entered before the court renders judgment, and judgment occurs at the time of sentencing. This argument was rejected because "conviction" means a determination of guilt, not judgment. The Court analyzed the meaning of conviction under both the Rules of Criminal Procedure and in its ordinary usage. A determination of guilt occurs by a plea in open court, or by the return of a guilty verdict. To require the formal entry of judgment would lead to irrational and arbitrary results.

State v. Towery, 186 Ariz. 168, 920 P.2d 290 (1996)
(F)(1) finding upheld. It was undisputed that Towery was convicted of four counts of armed robbery, committed while on parole, making him eligible for a life sentence. The Court stated that these facts support a finding under both (F)(1) and (F)(2). Note: Although the facts support a finding that both circumstances exist, a court may not give weight to both circumstances when each is supported by the same facts. See, e.g., State v. Spencer.

State v. Thornton, 187 Ariz. 325, 929 P.2d 676 (1996)
(F)(1) finding upheld without discussion. The finding was not contested on appeal.

State v. Rogovich, 188 Ariz. 38, 932 P.2d 794 (1997)
(F)(1) finding upheld. The Court rejected the defendant’s argument that (F)(1) applied only to convictions obtained outside the state of Arizona. The defendant was convicted of four counts of first degree murder, two counts of aggravated assault, two counts of armed robbery, and one count of unlawful flight from a law enforcement vehicle. He was sentenced to death on three of the four murders. The three murders for which he received the death sentence occurred the same afternoon in a trailer park. The fourth murder occurred earlier that morning in a convenience store. The trial judge found (F)(1) for the three trailer park killings, but not for the convenience store killing.

State v. Chad Lee (Reynolds, Lacey murders), 189 Ariz. 590, 944 P.2d 1204 (1997)
(F)(1) finding upheld. The defendant argued that (F)(1) could not apply because the murder was committed before the murder conviction for which he was sentenced here. The Court said that convictions entered prior to sentencing may be considered regardless of the order in which the underlying crimes occurred or the order in which the convictions were entered. For (F)(1) purposes, a conviction occurs upon determination of guilt.

State v. Chad Lee (Drury murder), 189 Ariz. 608, 944 P.2d 1222 (1997)
(F)(1) factor upheld. Prior convictions for first degree murder sufficient to support trial court’s finding even though the prior convictions were based on murders that occurred after the murder at issue.

State v. Lehr (I), 201 Ariz. 509, 38 P.3d 1172 (2002)
Three victims were murdered and seven victims survived the attacks. Two of the murder convictions were reversed for limitations on cross-examination of DNA experts. The remaining murder conviction was affirmed. The trial judge had used the two murder convictions, now reversed, to aggravate the other murder conviction under (F)(1). Nevertheless, the Supreme Court affirmed the (F)(1) finding because it was supported by numerous counts of kidnapping and sexual assault, for which life sentences were imposed.

State v. Robert Jones, 197 Ariz. 290, 4 P.3d 345 (2000)
(F)(1) finding upheld. The defendant was convicted of two killings at the Moon Smoke Shop and four killings at the Fire Fighters Union Hall. Because he was convicted of all six murders prior to sentencing, and because each set of murders provides a sufficient basis for finding the circumstance as to the other set of murders, the Court found (F)(1) proven beyond a reasonable doubt. The defendant did not challenge this finding on appeal.

State v. (Scott Douglas) Nordstrom
, 206 Ariz. 242, 77 P.3d 40 (Sept. 24, 2003) (Ring).
(F)(1) finding upheld. Nordstrom was convicted of six first-degree murder counts stemming from two separate robberies committed in Tucson on different dates – one at the Moon Smoke Shop and one at the Firefighter’s Union Hall. The murders at the Moon Smoke Shop satisfied the (F)(1) aggravating factor as to the Firefighter’s’ Union Hall murders, and the Firefighters’ Union Hall murders satisfied the (F)(1) aggravating factor for the Moon Smoke Shop murders.

State v. (Danny) Montano, 206 Ariz. 296, 77 P.3d 1246 (October 21, 2003) (Ring)
(F)(1) finding upheld. Montano had two prior armed robbery convictions for which he received two concurrent life sentences. (The present crime was committed while Montano was incarcerated).   These were separate from the prior conspiracy to commit first-degree murder conviction, which was used by the court to support (F)(2).

State v. (Robert Joe) Moody
,208 Ariz. 424, 94 P.3d 1119 (August 9, 2004) (Ring)
(F)(1) finding upheld. Moody was tried on the same occasion for killing two women on different dates. The jury’s verdict of guilt on the first-degree murder charge for the killing the first victim supported applying this factor as to the second, and the jury verdict of guilt on the second victim supported applying this factor to the first. The court re-affirmed that the “order of the crimes or convictions themselves is not important.”

State v. (Michael Joe) Murdaugh, 209 Ariz. 19, 97 P.3d 844 (2004) (Ring)
(F)(1) finding upheld. On the same day that Murdaugh pleaded guilty to the kidnapping and murder in this case, he pleaded guilty to the kidnapping and first-degree murder of another man (who was killed in a similar fashion). At his plea hearing, Murdaugh acknowledged that his conviction for the second murder could be used as an aggravating factor in the present case.

State v. (Joe Clarence) Smith, 215 Ariz. 221, 159 P.3d 531 (2007) (Ring)
(F)(1) finding upheld. Three prior convictions for rape for which Smith was sentenced to five years to life, ten years to life, and 75 years to life sufficient to support the jury’s finding.

State v. (Eugene) Tucker (Tucker II), 215 Ariz. 298, 160 P.3d 177 (2007) (Ring)
(F)(1) finding upheld. Tucker was convicted in 2000 of sexual assault and sentenced to 25 years to life imprisonment. The Court affirmed this conviction and sentence in Tucker I. As long as the prior conviction is entered before sentencing, it may support the (F)(1) aggravator even if it was committed before, contemporaneous with, or after the capital homicide. Thus, the (F)(1) aggravator was proven beyond a reasonable doubt.

State v. (Clarence) Dixon, 226 Ariz. 545, 250 P.3d 1174 (2011)
(F)(1) finding upheld. Dixon was convicted of seven crimes stemming from the 1985 rape of an NAU student and seven life sentences were imposed. Dixon conceded on appeal that the aggravator was proved.

State v. (Scott Alan) Lehr (Lehr II), 227 Ariz. 140, 254 P.3d 379 (2011)
(F)(1) finding upheld. Lehr was convicted of three murders. For each of the murder victims, Lehr's convictions for murdering the other two victims established the (F)(1) aggravator. His prior convictions for kidnappings and sexual assaults of other victims also established this aggravator.

State v. (Scott Douglas) Nordstrom, 230 Ariz. 110, 280 P.3d 1244 (2012)
(F)(1) finding upheld. Nordstrom argued that omission from the (F)(1) aggravator of specific language permitting the use of “same occasion homicides,” used in 13-751(F)(2), precluded the use of contemporaneous convictions in connection with (F)(1) aggravators.  The court held that concurrent convictions that were entered before sentencing can be used to establish the (F)(1) aggravator.  (Additionally, the court noted that the identified (F)(2) language was added by the legislature to displace an earlier ruling by the court, while the court’s previous (F)(1) ruling supported the use of concurrent convictions and required no similar legislative action.)

State v. (Trent Christopher) Benson, 232 Ariz. 452, 307 P.3d 19 (2013)
(F)(1)
FINDING UPHELD Defendant did not contest the finding of the (F)(1) aggravator, and the finding is supported by the evidence. The conviction for each of the two murders was established by the conviction for the other murder.



(F)(1) FINDING REVERSED

State v. Charles Lee, 114 Ariz. 101, 559 P.2d 657 (1976)
(F)(1) finding reversed. The state asked the trial court to take judicial notice of the defendant's prior convictions for armed robbery and assault with a deadly weapon. The Court disapproved of this procedure of taking judicial notice of a conviction in this situation where it will be used to prove an aggravating circumstance. The Court also found there was insufficient evidence in the record to prove the assault conviction, and remanded the case for a new sentencing hearing because the armed robbery conviction had been reversed on appeal.

State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1982)
(F)(1) finding reversed. The basis for this aggravating circumstance was a conspiracy conviction entered at the same time as the first degree murder conviction. The Court reversed the (F)(1) finding, stating that a prior conviction must be entered prior to the time for which jeopardy attaches on the first degree murder charge. Note: Subsequently, in State v. Gretzler, 135 Ariz. 42, 57 n.2 (1983), the Court explained this decision. The Court stated that convictions entered prior to a sentencing hearing may be considered regardless of the order in which the underlying crimes occurred, or the order in which the convictions were entered. To the extent any language in Ortiz suggests the contrary, it is disapproved. In Ortiz, "the trial court erred in considering a contemporaneous conviction for conspiracy to commit murder as aggravation for the murder. This exclusion from consideration is best understood as having been required because both convictions arose out of the same set of events."

State v. Cornell, 179 Ariz. 314, 878 P.2d 1352 (1994)
(F)(1) finding reversed. The trial court's (F)(1) finding was based on an aggravated assault conviction for which the defendant received a life sentence. That conviction was subsequently reversed on appeal. The defendant was retried on that charge and found guilty of a misdemeanor. The Court agreed with the defendant that the conviction could no longer support the (F)(1) aggravating circumstance. However, instead of remanding the case to be reweighed by the trial judge, the Court reduced the sentence to life imprisonment without the possibility of parole for twenty-five years to be served consecutive to all other sentences imposed.

State v. Lacy, 187 Ariz. 340, 92 P.2d 1288 (1996)
(F)(1) finding not applicable. The trial court specifically found that (F)(1) and (F)(2) did not apply. The trial court did find (F)(8), but that aggravating circumstance did not exist at the time this murder occurred. The state asked the Court to substitute (F)(1) or (F)(2) for the (F)(8) finding. The Court declined to do so. The defendant was convicted of two counts of first degree murder, both of which happened on the same night at the same apartment.

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