13-601 Classification of offenses
A. Felonies are classified, for the purpose of sentence, into the following six
categories:
1. Class 1 felonies.
2. Class 2 felonies.
3. Class 3 felonies.
4. Class 4 felonies.
5. Class 5 felonies.
6. Class 6 felonies.
B. Misdemeanors are classified, for the purpose of sentence, into the following
three categories:
1. Class 1 misdemeanors.
2. Class 2 misdemeanors.
3. Class 3 misdemeanors.
C. Petty offenses are not classified.
13-602 Designation of offenses
A. The particular classification of each felony defined in this title is expressly
designated in the section or chapter defining it. Any offense defined outside this title
which is declared by law to be a felony without either specification of the
classification or of the penalty is a class 5 felony.
B. The particular classification of each misdemeanor defined in this title is
expressly designated in the section or chapter defining it. Any offense defined outside
this title which is declared by law to be a misdemeanor without either specification of
the classification or of the penalty is a class 2 misdemeanor.
C. Every petty offense in this title is expressly designated as such. Any offense
defined outside this title without either designation as a felony or misdemeanor or
specification of the classification or the penalty is a petty offense.
D. Any offense which is declared by law to be a felony, misdemeanor or petty
offense without specification of the classification of such offense is punishable
according to the penalty prescribed for such offense.
E. Any offense defined within or outside this title without designation as a
felony, misdemeanor or petty offense is punishable according to the penalty prescribed
for such offense.
F. Any offense defined outside this title with a specification of the
classification of such offense is punishable according to the provisions of this title.
G. Any petty offense, class 3 misdemeanor or class 2 misdemeanor, except a
violation of title 28, is deemed a minor nontraffic offense for the limited purpose of
armed forces recruitment.
13-603 Authorized disposition of offenders
A. Every person convicted of any offense defined in this title or defined outside
this title shall be sentenced in accordance with this chapter and chapters 7, 8 and 9 of
this title unless otherwise provided by law.
B. If a person is convicted of an offense, the court, if authorized by chapter 9 of
this title, may suspend the imposition or execution of sentence and grant such person a
period of probation except as otherwise provided by law. The sentence is tentative to
the extent that it may be altered or revoked in accordance with chapter 9 of this title,
but for all other purposes it is a final judgment of conviction.
C. If a person is convicted of an offense, the court shall require the convicted
person to make restitution to the person who is the victim of the crime or to the
immediate family of the victim if the victim has died, in the full amount of the economic
loss as determined by the court and in the manner as determined by the court or the
court's designee pursuant to chapter 8 of this title. Restitution ordered pursuant to
this subsection shall be paid to the clerk of the court for disbursement to the victim
and is a criminal penalty for the purposes of a federal bankruptcy involving the person
convicted of an offense.
D. If the court imposes probation it may also impose a fine as authorized by
chapter 8 of this title.
E. If a person is convicted of an offense and not granted a period of probation, or
when probation is revoked, any of the following sentences may be imposed:
1. A term of imprisonment authorized by this chapter or chapter 7 of this title.
2. A fine authorized by chapter 8 of this title. The sentence is tentative to the
extent it may be modified or revoked in accordance with chapter 8 of this title, but for
all other purposes it is a final judgment of conviction. If the conviction is of a class
2, 3 or 4 felony, the sentence cannot consist solely of a fine.
3. Both imprisonment and a fine.
4. Intensive probation, subject to the provisions of chapter 9 of this title.
5. Intensive probation, subject to the provisions of chapter 9 of this title, and a
fine.
6. A new term of probation or intensive probation.
F. If an enterprise is convicted of any offense, a fine may be imposed as
authorized by chapter 8 of this title.
G. If a person or an enterprise is convicted of any felony, the court may, in
addition to any other sentence authorized by law, order the forfeiture, suspension or
revocation of any charter, license, permit or prior approval granted to the person or
enterprise by any department or agency of the state or of any political subdivision.
H. A court authorized to pass sentence upon a person convicted of any offense
defined within or without this title shall have a duty to determine and impose the
punishment prescribed for such offense.
I. If a person is convicted of a felony offense and the court sentences the person
to a term of imprisonment, the court at the time of sentencing shall impose on the
convicted person a term of community supervision. The term of community supervision
shall be served consecutively to the actual period of imprisonment if the person signs
and agrees to abide by conditions of supervision established by the state department of
corrections. Except pursuant to subsection J, the term of community supervision imposed
by the court shall be for a period equal to one day for every seven days of the sentence
or sentences imposed.
J. In calculating the term of community supervision, all fractions shall be
decreased to the nearest month, except for a class 5 or 6 felony which shall not be less
than one month.
K. Notwithstanding subsection I, if the court sentences a person to serve a
consecutive term of probation immediately after the person serves a term of imprisonment,
the court may waive community supervision and order that the person begin serving the
term of probation upon the person's release from confinement. The court may
retroactively waive the term of community supervision or that part remaining to be served
if the community supervision was imposed before July 21, 1997. If the court waives
community supervision, the term of probation imposed shall be equal to or greater than
the term of community supervision that would have been imposed. If the court does not
waive community supervision, the person shall begin serving the term of probation after
the person serves the term of community supervision. The state department of corrections
shall provide reasonable notice to the probation department of the scheduled release of
the inmate from confinement by the department.
L. If at the time of sentencing the court is of the opinion that a sentence that
the law requires the court to impose is clearly excessive, the court may enter a special
order allowing the person sentenced to petition the board of executive clemency for a
commutation of sentence within ninety days after the person is committed to the custody
of the state department of corrections. If the court enters a special order regarding
commutation, the court shall set forth in writing its specific reasons for concluding
that the sentence is clearly excessive. The court shall allow both the state and the
victim to submit a written statement on the matter. The court's order, and reasons for
its order, and the statements of the state and the victim shall be sent to the board of
executive clemency.
13-604.01 Dangerous crimes against children; sentences; definitions
A. A person who is at least eighteen years of age and who stands convicted of a
dangerous crime against children in the first degree involving sexual assault of a minor
who is twelve years of age or younger or sexual conduct with a minor who is twelve years
of age or younger shall be sentenced to life imprisonment and is not eligible for
suspension of sentence, probation, pardon or release from confinement on any basis except
as specifically authorized by section 31-233, subsection A or B until the person has
served thirty-five years or the sentence is commuted. This subsection does not apply to
masturbatory contact.
B. Except as otherwise provided in this section, a person who is at least eighteen
years of age or who has been tried as an adult and who stands convicted of a dangerous
crime against children in the first degree involving attempted first degree murder of a
minor who is under twelve years of age, second degree murder of a minor who is under
twelve years of age, sexual assault of a minor who is under twelve years of age, sexual
conduct with a minor who is under twelve years of age or manufacturing methamphetamine
under circumstances that cause physical injury to a minor who is under twelve years of
age may be sentenced to life imprisonment and is not eligible for suspension of sentence,
probation, pardon or release from confinement on any basis except as specifically
authorized by section 31-233, subsection A or B until the person has served thirty-five
years or the sentence is commuted. If a life sentence is not imposed pursuant to this
subsection, the person shall be sentenced to a presumptive term of imprisonment for
twenty years.
C. Except as otherwise provided in this section, a person who is at least eighteen
years of age or who has been tried as an adult and who stands convicted of a dangerous
crime against children in the first degree involving attempted first degree murder of a
minor who is twelve, thirteen or fourteen years of age, second degree murder of a minor
who is twelve, thirteen or fourteen years of age, sexual assault of a minor who is
twelve, thirteen or fourteen years of age, taking a child for the purpose of
prostitution, child prostitution, sexual conduct with a minor who is twelve, thirteen or
fourteen years of age, continuous sexual abuse of a child, sex trafficking of a minor who
is under fifteen years of age, manufacturing methamphetamine under circumstances that
cause physical injury to a minor who is twelve, thirteen or fourteen years of age or
involving or using minors in drug offenses shall be sentenced to a presumptive term of
imprisonment for twenty years. If the convicted person has been previously convicted of
one predicate felony the person shall be sentenced to a presumptive term of imprisonment
for thirty years.
D. Except as otherwise provided in this section, a person who is at least eighteen
years of age or who has been tried as an adult and who stands convicted of a dangerous
crime against children in the first degree involving aggravated assault, molestation of a
child, commercial sexual exploitation of a minor, sexual exploitation of a minor, child
abuse or kidnapping shall be sentenced to a presumptive term of imprisonment for
seventeen years. If the convicted person has been previously convicted of one predicate
felony the person shall be sentenced to a presumptive term of imprisonment for
twenty-eight years.
E. Except as otherwise provided in this section, a person who is at least eighteen
years of age or who has been tried as an adult and who stands convicted of a dangerous
crime against children involving sexual abuse under section 13-1404 is guilty of a class
3 felony and shall be sentenced to a presumptive term of imprisonment for five years, and
unless the person has previously been convicted of a predicate felony, the presumptive
term may be increased or decreased by up to two and one-half years pursuant to section
13-702, subsections B, C and D. If the person is sentenced to a term of imprisonment the
person is not eligible for release from confinement on any basis except as specifically
authorized by section 31-233, subsection A or B until the sentence imposed by the court
has been served, the person is eligible for release pursuant to section 41-1604.07 or the
sentence is commuted. If the convicted person has been previously convicted of one
predicate felony the person shall be sentenced to a presumptive term of imprisonment for
fifteen years and is not eligible for suspension of sentence, probation, pardon or
release from confinement on any basis except as specifically authorized by section
31-233, subsection A or B until the sentence imposed by the court has been served, the
person is eligible for release pursuant to section 41-1604.07 or the sentence is
commuted.
F. The presumptive sentences prescribed in subsections B, C and D of this section
or subsection E of this section if the person has previously been convicted of a
predicate felony may be increased or decreased by up to seven years pursuant to the
provisions of section 13-702, subsections B, C and D.
G. Except as provided in subsection E of this section, a person sentenced for a
dangerous crime against children in the first degree pursuant to this section is not
eligible for suspension of sentence, probation, pardon or release from confinement on any
basis except as specifically authorized by section 31-233, subsection A or B until the
sentence imposed by the court has been served or commuted.
H. A person who stands convicted of any dangerous crime against children in the
first degree pursuant to subsection C or D of this section having been previously
convicted of two or more predicate felonies shall be sentenced to life imprisonment and
is not eligible for suspension of sentence, probation, pardon or release from confinement
on any basis except as specifically authorized by section 31-233, subsection A or B until
the person has served not fewer than thirty-five years or the sentence is commuted.
I. Notwithstanding chapter 10 of this title, a person who is at least eighteen
years of age or who has been tried as an adult and who stands convicted of a dangerous
crime against children in the second degree pursuant to subsection C or D of this section
or luring a minor for sexual exploitation pursuant to section 13-3554 is guilty of a
class 3 felony and shall be sentenced to a presumptive term of imprisonment for ten
years. The presumptive term may be increased or decreased by up to five years pursuant
to section 13-702, subsections B, C and D. If the person is sentenced to a term of
imprisonment the person is not eligible for release from confinement on any basis except
as specifically authorized by section 31-233, subsection A or B until the person has
served the sentence imposed by the court, the person is eligible for release pursuant to
section 41-1604.07 or the sentence is commuted. A person who is convicted of any
dangerous crime against children in the second degree having been previously convicted of
one or more predicate felonies is not eligible for suspension of sentence, probation,
pardon or release from confinement on any basis except as specifically authorized by
section 31-233, subsection A or B until the sentence imposed by the court has been
served, the person is eligible for release pursuant to section 41-1604.07 or the sentence
is commuted.
J. Section 13-604, subsections M and O apply to the determination of prior
convictions.
K. The sentence imposed on a person by the court for a dangerous crime against
children under subsection D of this section involving child molestation or sexual abuse
pursuant to subsection E of this section may be served concurrently with other sentences
if the offense involved only one victim. The sentence imposed on a person for any other
dangerous crime against children in the first or second degree shall be consecutive to
any other sentence imposed on the person at any time, including child molestation and
sexual abuse of the same victim.
L. In this section, for purposes of punishment an unborn child shall be treated
like a minor who is under twelve years of age.
M. For the purposes of this section:
1. "Dangerous crime against children" means any of the following that is committed
against a minor who is under fifteen years of age:
(a) Second degree murder.
(b) Aggravated assault resulting in serious physical injury or involving the
discharge, use or threatening exhibition of a deadly weapon or dangerous instrument.
(c) Sexual assault.
(d) Molestation of a child.
(e) Sexual conduct with a minor.
(f) Commercial sexual exploitation of a minor.
(g) Sexual exploitation of a minor.
(h) Child abuse as prescribed in section 13-3623, subsection A, paragraph 1.
(i) Kidnapping.
(j) Sexual abuse.
(k) Taking a child for the purpose of prostitution as defined in section 13-3206.
(l) Child prostitution as defined in section 13-3212.
(m) Involving or using minors in drug offenses.
(n) Continuous sexual abuse of a child.
(o) Attempted first degree murder.
(p) Sex trafficking.
(q) Manufacturing methamphetamine under circumstances that cause physical injury to
a minor.
A dangerous crime against children is in the first degree if it is a completed offense
and is in the second degree if it is a preparatory offense, except attempted first degree
murder is a dangerous crime against children in the first degree.
2. "Predicate felony" means any felony involving child abuse pursuant to section
13-3623, subsection A, paragraph 1, a sexual offense, conduct involving the intentional
or knowing infliction of serious physical injury or the discharge, use or threatening
exhibition of a deadly weapon or dangerous instrument, or a dangerous crime against
children in the first or second degree.
13-604.02 Offenses committed while released from confinement
A. Notwithstanding any law to the contrary, a person convicted of any felony
offense involving the discharge, use or threatening exhibition of a deadly weapon or
dangerous instrument or the intentional or knowing infliction on another of serious
physical injury if committed while the person is on probation for a conviction of a
felony offense or parole, work furlough, community supervision or any other release or
escape from confinement for conviction of a felony offense shall be sentenced to
imprisonment for not less than the presumptive sentence authorized under this chapter and
is not eligible for suspension or commutation or release on any basis until the sentence
imposed is served. If the person committed the offense while on release or escape from
confinement for a conviction of a serious offense as defined in section 13-604, an
offense resulting in serious physical injury or an offense involving the use or
exhibition of a deadly weapon or dangerous instrument, the person shall be sentenced to
the maximum sentence authorized under this chapter and is not eligible for suspension or
commutation or release on any basis until the sentence imposed is served. If the court
finds that at least two substantial aggravating circumstances listed in section 13-702,
subsection C apply, the court may increase the maximum sentence authorized under this
chapter by up to twenty-five per cent. A sentence imposed pursuant to this subsection
shall revoke the convicted person's release if the person was on release and shall be
consecutive to any other sentence from which the convicted person had been temporarily
released or had escaped, unless the sentence from which the convicted person had been
paroled or placed on probation was imposed by a jurisdiction other than this state.
B. Notwithstanding any law to the contrary, a person convicted of any felony
offense not included in subsection A of this section if committed while the person is on
probation for a conviction of a felony offense or parole, work furlough, community
supervision or any other release or escape from confinement for conviction of a felony
offense shall be sentenced to a term of not less than the presumptive sentence authorized
for the offense and the person is not eligible for suspension of sentence, probation,
pardon or release from confinement on any basis except as specifically authorized by
section 31-233, subsection A or B until the sentence imposed by the court has been
served, the person is eligible for release pursuant to section 41-1604.07 or the sentence
is commuted. The release provisions prescribed by this section shall not be substituted
for any penalties required by the substantive offense or provision of law that specifies
a later release or completion of the sentence imposed prior to release. A sentence
imposed pursuant to this subsection shall revoke the convicted person's release if the
person was on release and shall be consecutive to any other sentence from which the
convicted person had been temporarily released or had escaped, unless the sentence from
which the convicted person had been paroled or placed on probation was imposed by a
jurisdiction other than this state. For purposes of this subsection, "substantive
offense" means the felony, misdemeanor or petty offense that the trier of fact found
beyond a reasonable doubt the defendant committed. Substantive offense does not include
allegations that, if proven, would enhance the sentence of imprisonment or fine to which
the defendant would otherwise be subject.
13-604.03 Repetitive offenders; misdemeanors
If a defendant is convicted of a misdemeanor offense and the offense requires
enhanced punishment because it is a second or subsequent offense, the existence of the
previous conviction shall be determined by the court. The court shall allow the
allegation of a prior conviction to be made in the same manner as the allegation
prescribed by section 28-1387, subsection A.
13-604.04 Violent crimes; allegation; definition A. The allegation that the defendant committed a violent crime shall be charged in the indictment or information and admitted or found by the court. The court shall allow the allegation that the defendant committed a violent crime at any time before the date the case is actually tried unless the allegation is filed fewer than twenty days before the case is actually tried and the court finds on the record that the defendant was in fact prejudiced by the untimely filing and states the reasons for these findings. B. For the purpose of this section, "violent crime" includes any criminal act that results in death or physical injury or any criminal use of a deadly weapon or dangerous instrument. 13-604 Dangerous and repetitive offenders; definitions
A. Except as provided in subsection F, G or H of this section or section 13-604.01,
a person who is at least eighteen years of age or who has been tried as an adult and who
stands convicted of a class 4, 5 or 6 felony, whether a completed or preparatory offense,
and who has a historical prior felony conviction shall be sentenced to imprisonment as
prescribed in this subsection and shall not be eligible for suspension of sentence,
probation, pardon or release from confinement on any basis except as specifically
authorized by section 31-233, subsection A or B until the sentence imposed by the court
has been served, the person is eligible for release pursuant to section 41-1604.07 or the
sentence is commuted. The presumptive term may be mitigated or aggravated within the
range prescribed under this subsection pursuant to the terms of section 13-702,
subsections B, C and D. The terms are as follows:
Felony Minimum Presumptive Maximum
Class 4 3 years 4.5 years 6 years
Class 5 1.5 years 2.25 years 3 years
Class 6 1 year 1.75 years 2.25 years
B. Except as provided in subsection I, J or K of this section or section 13-604.01,
a person who is at least eighteen years of age or who has been tried as an adult and who
stands convicted of a class 2 or 3 felony, whether a completed or preparatory offense,
and who has a historical prior felony conviction shall be sentenced to imprisonment as
prescribed in this subsection and shall not be eligible for suspension of sentence,
probation, pardon or release from confinement on any basis except as specifically
authorized by section 31-233, subsection A or B until the sentence imposed by the court
has been served, the person is eligible for release pursuant to section 41-1604.07 or the
sentence is commuted. The presumptive term may be mitigated or aggravated within the
range prescribed under this subsection pursuant to the terms of section 13-702,
subsections B, C and D. The terms are as follows:
Felony Minimum Presumptive Maximum
Class 2 6 years 9.25 years 18.5 years
Class 3 4.5 years 6.5 years 13 years
C. Except as provided in subsection F, G, H or S of this section or section
13-604.01, a person who is at least eighteen years of age or who has been tried as an
adult and who stands convicted of a class 4, 5 or 6 felony, whether a completed or
preparatory offense, and who has two or more historical prior felony convictions shall be
sentenced to imprisonment as prescribed in this subsection and shall not be eligible for
suspension of sentence, probation, pardon or release from confinement on any basis except
as specifically authorized by section 31-233, subsection A or B until the sentence
imposed by the court has been served, the person is eligible for release pursuant to
section 41-1604.07 or the sentence is commuted. The presumptive term may be mitigated or
aggravated within the range prescribed under this subsection pursuant to the terms of
section 13-702, subsections B, C and D. The terms are as follows:
Felony Minimum Presumptive Maximum
Class 4 8 years 10 years 12 years
Class 5 4 years 5 years 6 years
Class 6 3 years 3.75 years 4.5 years
D. Except as provided in subsection I, J, K or S of this section or section
13-604.01, a person who is at least eighteen years of age or who has been tried as an
adult and who stands convicted of a class 2 or 3 felony, and who has two or more
historical prior felony convictions, shall be sentenced to imprisonment as prescribed in
this subsection and shall not be eligible for suspension of sentence, probation, pardon
or release from confinement on any basis except as specifically authorized by section
31-233, subsection A or B until the sentence imposed by the court has been served, the
person is eligible for release pursuant to section 41-1604.07 or the sentence is
commuted. The presumptive term may be mitigated or aggravated within the range prescribed
under this subsection pursuant to the terms of section 13-702, subsections B, C and D.
The terms are as follows:
Felony Minimum Presumptive Maximum
Class 2 14 years 15.75 years 28 years
Class 3 10 years 11.25 years 20 years
E. A person who is at least eighteen years of age or who has been tried as an adult
and who stands convicted of any misdemeanor or petty offense, other than a traffic
offense, and who has been convicted of one or more of the same misdemeanors or petty
offenses within two years next preceding the date of the present offense shall be
sentenced for the next higher class of offense than that for which such person currently
stands convicted.
F. Except as provided in section 13-604.01, a person who is at least eighteen years
of age or who has been tried as an adult and who stands convicted of a class 4, 5 or 6
felony involving the intentional or knowing infliction of serious physical injury or the
discharge, use or threatening exhibition of a deadly weapon or dangerous instrument
without having previously been convicted of any felony shall be sentenced to imprisonment
as prescribed in this subsection and shall not be eligible for suspension of sentence,
probation, pardon or release from confinement on any basis except as specifically
authorized by section 31-233, subsection A or B until the sentence imposed by the court
has been served, the person is eligible for release pursuant to section 41-1604.07 or the
sentence is commuted. The presumptive term may be mitigated or aggravated within the
range prescribed under this subsection pursuant to the terms of section 13-702,
subsections B, C and D. The terms are as follows:
Felony Minimum Presumptive Maximum
Class 4 4 years 6 years 8 years
Class 5 2 years 3 years 4 years
Class 6 1.5 years 2.25 years 3 years
G. Except as provided in section 13-604.01, upon conviction of a class 4, 5 or 6
felony involving the intentional or knowing infliction of serious physical injury or the
discharge, use or threatening exhibition of a deadly weapon or dangerous instrument a
person who has a historical prior felony conviction involving the intentional or knowing
infliction of serious physical injury or the use or exhibition of a deadly weapon or
dangerous instrument shall be sentenced to imprisonment as prescribed in this subsection
and shall not be eligible for suspension of sentence, probation, pardon or release from
confinement on any basis except as specifically authorized by section 31-233, subsection
A or B until the sentence imposed by the court has been served, the person is eligible
for release pursuant to section 41-1604.07 or the sentence is commuted. The presumptive
term may be mitigated or aggravated within the range prescribed under this subsection
pursuant to the terms of section 13-702, subsections B, C and D. The terms are as
follows:
Felony Minimum Presumptive Maximum
Class 4 8 years 10 years 12 years
Class 5 4 years 5 years 6 years
Class 6 3 years 3.75 years 4.5 years
H. Except as provided in subsection S of this section or section 13-604.01, upon
conviction of a class 4, 5 or 6 felony involving the intentional or knowing infliction of
serious physical injury or the discharge, use or threatening exhibition of a deadly
weapon or dangerous instrument a person who has two or more historical prior felony
convictions involving the intentional or knowing infliction of serious physical injury or
the use or exhibition of a deadly weapon or dangerous instrument shall be sentenced to
imprisonment as prescribed in this subsection and shall not be eligible for suspension of
sentence, probation, pardon or release from confinement on any basis except as
specifically authorized by section 31-233, subsection A or B until the sentence imposed
by the court has been served, the person is eligible for release pursuant to section
41-1604.07 or the sentence is commuted. The presumptive term may be mitigated or
aggravated within the range prescribed under this subsection pursuant to the terms of
section 13-702, subsections B, C and D. The terms are as follows:
Felony Minimum Presumptive Maximum
Class 4 12 years 14 years 16 years
Class 5 6 years 7 years 8 years
Class 6 4.5 years 5.25 years 6 years
I. Except as provided in section 13-604.01, upon a first conviction of a class 2 or
3 felony involving discharge, use or threatening exhibition of a deadly weapon or
dangerous instrument or upon conviction of a class 2 or 3 felony when the intentional or
knowing infliction of serious physical injury upon another has occurred, the defendant
shall be sentenced to imprisonment as prescribed in this subsection and shall not be
eligible for suspension of sentence, probation, pardon or release from confinement on any
basis except as specifically authorized by section 31-233, subsection A or B until the
sentence imposed by the court has been served, the person is eligible for release
pursuant to section 41-1604.07 or the sentence is commuted. The presumptive term may be
mitigated or aggravated within the range prescribed under this subsection pursuant to the
terms of section 13-702, subsections B, C and D. The terms are as follows:
Felony Minimum Presumptive Maximum
Class 2 7 years 10.5 years 21 years
Class 3 5 years 7.5 years 15 years
J. Except as provided in section 13-604.01, upon conviction of a class 2 or 3
felony involving the discharge, use or threatening exhibition of a deadly weapon or
dangerous instrument or the intentional or knowing infliction of serious physical injury
upon another, a person who has a historical prior felony conviction that is a class 1, 2
or 3 felony involving the use or exhibition of a deadly weapon or dangerous instrument or
the intentional or knowing infliction of serious physical injury on another shall be
sentenced to imprisonment as prescribed in this subsection and shall not be eligible for
suspension of sentence, probation, pardon or release from confinement on any basis except
as specifically authorized by section 31-233, subsection A or B until the sentence
imposed by the court has been served, the person is eligible for release pursuant to
section 41-1604.07 or the sentence is commuted. The presumptive term may be mitigated or
aggravated within the range prescribed under this subsection pursuant to the terms of
section 13-702, subsections B, C and D. The terms are as follows:
Felony Minimum Presumptive Maximum
Class 2 14 years 15.75 years 28 years
Class 3 10 years 11.25 years 20 years
K. Except as provided in subsection S of this section or section 13-604.01, upon
conviction for a class 2 or 3 felony involving the discharge, use or threatening
exhibition of a deadly weapon or dangerous instrument or the intentional or knowing
infliction of serious physical injury upon another, a person who has two or more
historical prior felony convictions that are class 1, 2 or 3 felonies involving the use
or exhibition of a deadly weapon or dangerous instrument or the intentional or knowing
infliction of serious physical injury on another shall be sentenced to imprisonment as
prescribed in this subsection and shall not be eligible for suspension of sentence,
probation, pardon or release from confinement on any basis except as specifically
authorized by section 31-233, subsection A or B until the sentence imposed by the court
has been served, the person is eligible for release pursuant to section 41-1604.07 or the
sentence is commuted. The presumptive term may be mitigated or aggravated within the
range prescribed under this subsection pursuant to the terms of section 13-702,
subsections B, C and D. The terms are as follows:
Felony Minimum Presumptive Maximum
Class 2 21 years 28 years 35 years
Class 3 15 years 20 years 25 years
L. For the purposes of subsections I, J and K of this section in determining the
applicability of the penalties provided in this section for second or subsequent class 2
or 3 felonies, the conviction for any felony committed prior to October 1, 1978 which, if
committed after October 1, 1978, could be a dangerous felony under this section may be
designated by the state as a prior felony.
M. Convictions for two or more offenses committed on the same occasion shall be
counted as only one conviction for purposes of this section.
N. A person who has been convicted in any court outside the jurisdiction of this
state of an offense which if committed within this state would be punishable as a felony
or misdemeanor is subject to the provisions of this section. A person who has been
convicted as an adult of an offense punishable as a felony or a misdemeanor under the
provisions of any prior code in this state shall be subject to the provisions of this
section.
O. Time spent incarcerated within the two years next preceding the date of the
offense for which a person is currently being sentenced under subsection E of this
section shall not be included in the two years required to be free of convictions for
purposes of that subsection.
P. The penalties prescribed by this section shall be substituted for the penalties
otherwise authorized by law if the previous conviction or the allegation that the
defendant committed a felony while released on bond or on the defendant's own
recognizance or while escaped from preconviction custody as provided in subsection R of
this section is charged in the indictment or information and admitted or found by the
court or if the dangerous nature of the felony is charged in the indictment or
information and admitted or found by the trier of fact. The release provisions prescribed
by this section shall not be substituted for any penalties required by the substantive
offense or provision of law that specifies a later release or completion of the sentence
imposed prior to release. The court shall allow the allegation of a prior conviction, the
dangerous nature of the felony or the allegation that the defendant committed a felony
while released on bond or on the defendant's own recognizance or while escaped from
preconviction custody at any time prior to the date the case is actually tried unless the
allegation is filed fewer than twenty days before the case is actually tried and the
court finds on the record that the defendant was in fact prejudiced by the untimely
filing and states the reasons for these findings, provided that when the allegation of a
prior conviction is filed, the state must make available to the defendant a copy of any
material or information obtained concerning the prior conviction. The charge of previous
conviction or the allegation that the defendant committed a felony while released on bond
or on the defendant's own recognizance or while escaped from preconviction custody shall
not be read to the jury. For the purposes of this subsection, "dangerous nature of the
felony" means a felony involving the discharge, use or threatening exhibition of a deadly
weapon or dangerous instrument or the intentional or knowing infliction of serious
physical injury upon another.
Q. Intentional failure by the court to impose the mandatory sentences or probation
conditions provided in this title shall be deemed to be malfeasance.
R. A person who is convicted of committing any felony offense, which felony offense
is committed while the person is released on bail or on the defendant's own recognizance
on a separate felony offense or while the person is escaped from preconviction custody
for a separate felony offense, shall be sentenced to a term of imprisonment two years
longer than would otherwise be imposed for the felony offense committed while released on
bond or on the defendant's own recognizance or while escaped from preconviction custody.
The additional sentence imposed under this subsection is in addition to any enhanced
punishment that may be applicable under any of the other subsections of this section.
The defendant is not eligible for suspension of sentence, probation, pardon or release
from confinement on any basis except as specifically authorized by section 31-233,
subsection A or B until the two years are served, the person is eligible for release
pursuant to section 41-1604.07 or the sentence is commuted.
S. A person who is at least eighteen years of age or who has been tried as an adult
and who stands convicted of a serious offense except a drug offense, first degree murder
or any dangerous crime against children, whether a completed or preparatory offense, and
who has previously been convicted of two or more serious offenses not committed on the
same occasion shall be sentenced to life imprisonment and is not eligible for suspension
of sentence, probation, pardon or release from confinement on any basis except as
specifically authorized by section 31-233, subsection A or B until the person has served
not less than twenty-five years or the sentence is commuted.
T. A person who is convicted of committing any felony offense with the intent to
promote, further or assist any criminal conduct by a criminal street gang shall not be
eligible for suspension of sentence, probation, pardon or release from confinement on any
basis except as authorized by section 31-233, subsection A or B until the sentence
imposed by the court has been served, the person is eligible for release pursuant to
section 41-1604.07 or the sentence is commuted. The presumptive, minimum and maximum
sentence for the offense shall be increased by three years. The additional sentence
imposed pursuant to this subsection is in addition to any enhanced sentence that may be
applicable.
U. A person who is convicted of intentionally or knowingly committing aggravated
assault on a peace officer while the officer is engaged in the execution of any official
duties pursuant to section 13-1204, subsection A, paragraph 1 or 2 shall be sentenced to
imprisonment for not less than the presumptive sentence authorized under this chapter and
is not eligible for suspension of sentence, commutation or release on any basis until the
sentence imposed is served.
V. Except as provided in section 13-604.01 or 13-703, if the victim is an unborn
child in the womb at any stage of its development, the defendant shall be sentenced
pursuant to this section.
W. For the purposes of this section:
1. "Absconder" means a probationer who has moved from the probationer's primary
place of residence without permission of the probation officer, who cannot be located
within ninety days of the previous contact and against whom a petition to revoke has been
filed in the superior court alleging that the probationer's whereabouts are unknown. A
probationer is no longer deemed to be an absconder when voluntarily or involuntarily
returned to probation service.
2. "Historical prior felony conviction" means:
(a) Any prior felony conviction for which the offense of conviction:
(i) Mandated a term of imprisonment except for a violation of chapter 34 of this
title involving a drug below the threshold amount; or
(ii) Involved the intentional or knowing infliction of serious physical injury; or
(iii) Involved the use or exhibition of a deadly weapon or dangerous instrument; or
(iv) Involved the illegal control of a criminal enterprise; or
(v) Involved aggravated driving under the influence of intoxicating liquor or
drugs, driving while under the influence of intoxicating liquor or drugs with a
suspended, canceled, revoked or refused driver license or driving under the influence of
intoxicating liquor or drugs with two or more driving under the influence of intoxicating
liquor or drug convictions within a period of sixty months; or
(vi) Involved any dangerous crime against children as defined in section 13-604.01.
(b) Any class 2 or 3 felony, except the offenses listed in subdivision (a) of this
paragraph, that was committed within the ten years immediately preceding the date of the
present offense. Any time spent on absconder status while on probation or incarcerated is
excluded in calculating if the offense was committed within the preceding ten years. If a
court determines a person was not on absconder status while on probation that time is not
excluded.
(c) Any class 4, 5 or 6 felony, except the offenses listed in subdivision (a) of
this paragraph, that was committed within the five years immediately preceding the date
of the present offense. Any time spent on absconder status while on probation or
incarcerated is excluded in calculating if the offense was committed within the preceding
five years. If a court determines a person was not on absconder status while on
probation that time is not excluded.
(d) Any felony conviction that is a third or more prior felony conviction.
3. "Preconviction custody" means the confinement of a person in a jail in this
state or another state after the person is arrested for or charged with a felony offense.
4. "Serious offense" means any of the following offenses if committed in this state
or any offense committed outside this state which if committed in this state would
constitute one of the following offenses:
(a) First degree murder.
(b) Second degree murder.
(c) Manslaughter.
(d) Aggravated assault resulting in serious physical injury or involving the
discharge, use or threatening exhibition of a deadly weapon or dangerous instrument.
(e) Sexual assault.
(f) Any dangerous crime against children.
(g) Arson of an occupied structure.
(h) Armed robbery.
(i) Burglary in the first degree.
(j) Kidnapping.
(k) Sexual conduct with a minor under fifteen years of age.
5. "Substantive offense" means the felony, misdemeanor or petty offense that the
trier of fact found beyond a reasonable doubt the defendant committed. Substantive
offense does not include allegations that, if proven, would enhance the sentence of
imprisonment or fine to which the defendant otherwise would be subject. 13-605 Diagnostic commitment
A. If after presentence investigation, the court desires more detailed information
as a basis for determining the sentence to be imposed, it may commit the defendant to the
custody of the department of corrections. The director of the department of corrections
shall accept the commitment only when adequate staff and facilities are available. The
notice to the court of acceptance of the commitment shall specify the time and place the
defendant is to be received. The commitment shall not exceed ninety days. The
department during that period shall conduct a complete study of the prisoner and shall by
the expiration of the period of commitment return the prisoner to the court and provide
the court with a written report of the results of the study, including whatever
recommendations the department believes will be helpful in determining disposition of the
case. After receiving the report and recommendations, if the court does not order a
further diagnostic commitment under subsection B of this section, it shall sentence the
defendant as authorized by section 13-603.
B. If after presentence investigation the court desires more detailed information
about the defendant's mental condition, it may commit or refer the defendant to the
custody of any diagnostic facility for the performance of psychiatric evaluation. The
commitment or referral shall be for a period not to exceed ninety days. Within that
period the facility shall return the prisoner to court and transmit to the court a
diagnostic report, including whatever recommendations the facility may wish to make.
After receiving the report and recommendations, if the court does not order a further
diagnostic commitment under subsection A of this section, it shall sentence the defendant
as authorized by section 13-603 or invoke the provisions of section 13-606.
C. In an appropriate case the court in its discretion may order diagnostic
commitments under both subsections A and B of this section.
D. If after receiving a diagnostic report under subsection A or B of this section
the court sentences the defendant to imprisonment, the period of commitment under either
or both shall be credited to the sentence imposed. 13-606 Civil commitment after imposition of sentence
A. If, after imposition of sentence authorized by section 13-603 and on the basis
of the report and recommendations submitted to the court under subsection B of section
13-605, the court believes that the defendant discloses symptoms of mental disorder, the
court may proceed as provided in chapter 5 of title 36.
B. After termination of the commitment in subsection A of this section, the
defendant shall be returned to the court for release or to serve the unexpired term
imposed as authorized by section 13-603. The period of confinement pursuant to the civil
commitment shall be credited to the sentence imposed. 13-607 Judgment of guilt and sentence document; fingerprint; contents of document; recitations
A. At the time of sentencing a person convicted of a felony offense or a violation
of section 13-1802, 13-1805, 28-1381 or 28-1382, the court shall execute a judgment of
guilt and sentence document or minute order as prescribed by this section.
B. The court or a person appointed by the court shall at the time of sentencing and
in open court permanently affix a fingerprint of the defendant to the document or order.
C. The document or order shall recite all of the following in addition to any
information deemed appropriate by the court:
1. The full name and date of birth of the defendant.
2. The name of the counsel for the defendant or, if counsel was waived, the fact
that the defendant knowingly, voluntarily and intelligently waived the defendant's right
to counsel after having been fully apprised of the defendant's right to counsel.
3. The name, statutory citation and classification of the offense.
4. Whether there was a finding by the trier of fact that the offense was of a
dangerous or repetitive nature pursuant to section 13-604 or 13-604.02.
5. Whether the basis of the finding of guilt was by trial to a jury or to the
court, or by plea of guilty or no contest.
6. That there was a knowing, voluntary and intelligent waiver of the right to a
jury trial if the finding of guilt was based on a trial to the court.
7. That there was a knowing, voluntary and intelligent waiver of all pertinent
rights if the finding of guilt was based on a plea of guilty or no contest.
8. A certification by the court or the clerk of the court that at the time of
sentencing and in open court the defendant's fingerprint was permanently affixed to the
document or order.
D. The document or order shall be made a permanent part of the public records of
the court, and the recitations contained in the document or order are prima facie
evidence of the facts stated in the recitations.
13-608 Chronic felony offenders; disposition; notice
A. If a juvenile is prosecuted as a chronic felony offender pursuant to section
13-501, subsection A or B, is convicted of a felony in criminal court and is placed on
probation, the juvenile shall be incarcerated in the county jail for a period of not more
than one year as a condition of probation.
B. If a juvenile is prosecuted as a chronic felony offender pursuant to section
13-501, subsection A or B in criminal court and is convicted of a felony in criminal
court, the court shall provide the following written notice to the juvenile:
You have been convicted as a chronic felony offender and you now have a
historical prior felony conviction. You are now on notice that if you commit
another felony offense, you will be tried as an adult in the criminal division
of the superior court and you will be subject to mandatory sentencing.
C. The failure or inability of the court to provide the notice required by
subsection B of this section does not preclude the use of the prior conviction for any
purpose otherwise permitted.
13-609 Offenses committed in school safety zone; sentences; definitions
A. Except as otherwise prescribed in section 13-3411, a person who is convicted of
a felony offense that is committed in a school safety zone is guilty of the same class of
felony that the person would otherwise be guilty of if the violation had not occurred
within a school safety zone, except that the court may impose a sentence that is one year
longer than the minimum, maximum and presumptive sentence for that violation. The
additional sentence imposed under this subsection is in addition to any other enhanced
punishment that may be applicable under section 13-604 or other provisions of chapter 34
of this title.
B. In addition to any other penalty prescribed by this title, the court may order a
person subject to the provisions of subsection A of this section to pay a fine of not
less than two thousand dollars and not more than the maximum authorized by chapter 8 of
this title.
C. Each school district governing board or its designee, or chief administrative
officer in the case of a nonpublic or charter school, may place and maintain permanently
affixed signs that are located in a visible manner at the main entrance of each school
and that identify the school and its accompanying grounds as a school safety zone. A
school may include information regarding the school safety zone boundaries on a sign that
identifies the area as a drug free zone and not post separate school safety zone signs.
D. For purposes of this section:
1. "School" means any public or nonpublic kindergarten program, common school or
high school.
2. "School safety zone" means any of the following:
(a) The area within three hundred feet of a school or its accompanying grounds.
(b) Any public property within one thousand feet of a school or its accompanying
grounds.
(c) Any school bus.
(d) A bus contracted to transport pupils to any school during the time when the
contracted vehicle is transporting pupils on behalf of the school.
(e) A school bus stop.
(f) Any bus stop where school children are awaiting, boarding or exiting a bus
contracted to transport pupils to any school.
13-610 Deoxyribonucleic acid testing; exception
A. Within thirty days after a person is sentenced to the state department of
corrections or a person who is accepted under the interstate compact for the supervision
of parolees and probationers arrives in this state, the state department of corrections
shall secure a sufficient sample of blood or other bodily substances for deoxyribonucleic
acid testing and extraction from the person if the person was convicted of an offense
listed in this section and was sentenced to a term of imprisonment or was convicted of
any offense that was committed in another jurisdiction that if committed in this state
would be a violation of any offense listed in this section and the person is under the
supervision of the state department of corrections. The state department of corrections
shall transmit the sample to the department of public safety.
B. Within thirty days after a person is placed on probation and sentenced to a term
of incarceration in a county jail detention facility or is detained in a county juvenile
detention facility, the county detention facility shall secure a sufficient sample of
blood or other bodily substances for deoxyribonucleic acid testing and extraction from
the person if the person was convicted of or adjudicated delinquent for an offense listed
in this section. The county detention facility shall transmit the sample to the
department of public safety.
C. Within thirty days after a person is convicted and placed on probation without a
term of incarceration or adjudicated delinquent and placed on probation, the county
probation department shall secure a sufficient sample of blood or other bodily substances
for deoxyribonucleic acid testing and extraction from the person if the person was
convicted of or adjudicated delinquent for an offense listed in this section. The county
probation department shall transmit the sample to the department of public safety.
D. Within thirty days after the arrival of a person who is accepted under the
interstate compact for the supervision of parolees and probationers and who is under the
supervision of a county probation department, the county probation department shall
secure a sufficient sample of blood or other bodily substances for deoxyribonucleic acid
testing and extraction from the person if the person was convicted of an offense that was
committed in another jurisdiction that if committed in this state would be a violation of
any offense listed in this section and was sentenced to a term of probation. The county
probation department shall transmit the sample to the department of public safety.
E. Within thirty days after a juvenile is committed to the department of juvenile
corrections, the department of juvenile corrections shall secure a sufficient sample of
blood or other bodily substances for deoxyribonucleic acid testing and extraction from
the youth if the youth was adjudicated delinquent for an offense listed in this section
and was committed to a secure care facility. The department of juvenile corrections shall
transmit the sample to the department of public safety.
F. Within thirty days after the arrival in this state of a juvenile who is accepted
by the department of juvenile corrections pursuant to the interstate compact on juveniles
and who was adjudicated for an offense that was committed in another jurisdiction that if
committed in this state would be a violation of any offense listed in this section, the
compact administrator shall request that the sending state impose as a condition of
supervision that the juvenile submit a sufficient sample of blood or other bodily
substances for deoxyribonucleic acid testing. If the sending state does not impose that
condition, the department of juvenile corrections shall request a sufficient sample of
blood or other bodily substances for deoxyribonucleic acid testing within thirty days
after the juvenile's arrival in this state. The department of juvenile corrections shall
transmit the sample to the department of public safety.
G. Notwithstanding subsections A through F of this section, the agency that is
responsible for securing a sample pursuant to this section shall not secure the sample if
the scientific criminal analysis section of the department of public safety has
previously received and maintains a sample sufficient for deoxyribonucleic acid testing.
H. The department of public safety shall do all of the following:
1. Conduct or oversee through mutual agreement an analysis of the samples that it
receives pursuant to subsection N, paragraphs 1, 2 and 3 of this section and subsection
O, paragraphs 1 and 2 of this section.
2. Store the samples it receives pursuant to subsection N, paragraphs 4 and 5 of
this section and subsection O, paragraphs 3 and 4 of this section and conduct an analysis
of the samples on receipt of the funding necessary for this purpose.
3. Make and maintain a report of the results of each deoxyribonucleic acid
analysis.
4. Maintain samples of blood and other bodily substances for at least thirty-five
years.
I. Any sample and the result of any test that is obtained pursuant to this section
may be used only as follows:
1. For law enforcement identification purposes.
2. In a proceeding in a criminal prosecution or juvenile adjudication.
3. In a proceeding under title 36, chapter 37.
J. If the conviction of a person who is subject to this section is overturned on
appeal or postconviction relief and a final mandate has been issued, on petition of the
person to the superior court in the county in which the conviction occurred, the court
shall order that the person's deoxyribonucleic acid profile resulting from that
conviction be expunged from the ARIZONA deoxyribonucleic acid identification system
established by section 41-2418 unless the person has been convicted of another offense
that would require the person to submit to deoxyribonucleic acid testing pursuant to this
section.
K. If the conviction of a person who is subject to this section is classified as a
misdemeanor pursuant to section 13-702, on petition of the person to the superior court
in the county in which the conviction occurred, the court shall order that the person's
deoxyribonucleic acid profile resulting from that conviction be expunged from the ARIZONA
deoxyribonucleic acid identification system unless the person has been convicted of
another offense that would require the person to submit to deoxyribonucleic acid testing
pursuant to this section.
L. A person who was convicted or adjudicated delinquent before the applicable date
provided in this section for any offense for which a sufficient sample of blood or other
bodily substance for deoxyribonucleic acid testing and extraction is required to be
secured shall have a sample secured if the person is in the custody of the state
department of corrections, the department of juvenile corrections or a county jail
detention facility or is under the supervision of a probation department on the
applicable date listed in subsection N or O of this section. The sample shall be secured
within one hundred eighty days after the applicable date listed in subsection N or O of
this section.
M. If any sample that is submitted to the department of public safety under this
section is found to be unacceptable for analysis and use or cannot be used by the
department, the department shall require that another sample of blood or other bodily
substances be secured pursuant to this section.
N. This section applies to persons who are convicted of the following offenses:
1. A violation of or an attempt to violate any offense in chapter 11 of this title,
any felony offense in chapter 14 or 35.1 of this title or section 13-1507, 13-1508 or
13-3608.
2. Any offense for which a person is required to register pursuant to section
13-3821.
3. Any offense involving the discharge, use or threatening exhibition of a deadly
weapon or dangerous instrument or the intentional or knowing infliction of serious
physical injury as provided in section 13-604.
4. A violation of any felony offense in chapter 34 of this title.
5. Beginning on January 1, 2004, a violation of any felony offense.
O. This section applies to persons who are adjudicated delinquent for the following
offenses:
1. A violation or an attempt to violate any offense in chapter 11 of this title,
any felony offense in chapter 14 or 35.1 of this title or section 13-1507, 13-1508 or
13-3608.
2. Any offense for which a person is required to register pursuant to section
13-3821.
3. A violation of any felony offense in chapter 34 of this title that may be
prosecuted pursuant to section 13-501, subsection B, paragraph 2.
4. Beginning on January 1, 2004, a violation of any felony offense that is listed
in section 13-501.
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