13-701 Sentence of imprisonment for felony; presentence report
A. A sentence of imprisonment for a felony shall be a definite term of years and
the person sentenced, unless otherwise provided by law, shall be committed to the custody
of the state department of corrections.
B. No prisoner may be transferred to the custody of the state department of
corrections without a certified copy of the judgment and sentence, signed by the
sentencing judge, and a copy of a recent presentence investigation report unless the
court has waived preparation of the report.
C. Except as provided in section 13-604 the term of imprisonment for a felony shall
be determined as follows for a first offense:
1. For a class 2 felony, five years.
2. For a class 3 felony, three and one-half years.
3. For a class 4 felony, two and one-half years.
4. For a class 5 felony, one and one-half years.
5. For a class 6 felony, one year.
13-702.01 Exceptional circumstances; aggravation; mitigation; definition
A. Notwithstanding section 13-702, subsection A, if a person is convicted of a
felony without having previously been convicted of any felony and if the trier of fact
finds beyond a reasonable doubt that at least two aggravating factors listed in section
13-702, subsection C apply, the court may increase the maximum term of imprisonment
otherwise authorized for that offense up to the following maximum terms:
1. For a class 2 felony 12.5 years
2. For a class 3 felony 8.75 years
3. For a class 4 felony 3.75 years
4. For a class 5 felony 2.5 years
5. For a class 6 felony 2 years
B. Notwithstanding section 13-702, subsection A, if a person is convicted of a
felony without having previously been convicted of any felony and if the court finds that
at least two mitigating factors listed in section 13-702, subsection D apply, the court
may decrease the minimum term of imprisonment otherwise authorized for that offense down
to the following minimum terms:
1. For a class 2 felony 3 years
2. For a class 3 felony 2 years
3. For a class 4 felony 1 year
4. For a class 5 felony 6 months
5. For a class 6 felony 4 months
C. Notwithstanding section 13-604, subsection A or B, if a person is convicted of a
felony offense and has one historical prior felony conviction and if the trier of fact
finds beyond a reasonable doubt that at least two aggravating factors listed in section
13-702, subsection C apply, the court may increase the maximum term of imprisonment
otherwise authorized for that offense up to the following maximum terms:
1. Class 2 felony 23.25 years
2. Class 3 felony 16.25 years
3. Class 4 felony 7.5 years
4. Class 5 felony 3.75 years
5. Class 6 felony 2.75 years
D. Notwithstanding section 13-604, subsection A or B, if a person is convicted of a
felony offense and has one historical prior felony conviction and if the court finds that
at least two mitigating factors listed in section 13-702, subsection D apply, the court
may decrease the minimum term of imprisonment otherwise authorized for that offense down
to the following minimum terms:
1. Class 2 felony 4.5 years
2. Class 3 felony 3.5 years
3. Class 4 felony 2.25 years
4. Class 5 felony 1 year
5. Class 6 felony 9 months
E. Notwithstanding section 13-604, subsection C or D, if a person is convicted of a
felony offense and has two or more historical prior felony convictions and if the trier
of fact finds beyond a reasonable doubt that at least two aggravating factors listed in
section 13-702, subsection C apply, the court may increase the maximum term of
imprisonment otherwise authorized for that offense up to the following maximum terms:
1. Class 2 felony 35 years
2. Class 3 felony 25 years
3. Class 4 felony 15 years
4. Class 5 felony 7.5 years
5. Class 6 felony 5.75 years
F. Notwithstanding section 13-604, subsection C or D, if a person is convicted of a
felony offense and has two or more historical prior felony convictions and if the court
finds that at least two mitigating factors listed in section 13-702, subsection D apply,
the court may decrease the minimum term of imprisonment otherwise authorized for that
offense down to the following minimum terms:
1. Class 2 felony 10.5 years
2. Class 3 felony 7.5 years
3. Class 4 felony 6 years
4. Class 5 felony 3 years
5. Class 6 felony 2.25 years
G. The upper or lower term imposed pursuant to this section may be imposed only if
at least two of the aggravating circumstances are found beyond a reasonable doubt to be
true by the trier of fact, or in mitigation of the crime are found to be true by the
trial judge, on any evidence or information introduced or submitted to the court or the
trier of fact before sentencing or any evidence presented at trial, and factual findings
and reasons in support of these findings are set forth on the record at the time of
sentencing.
H. The court in imposing sentence shall consider the evidence and opinions
presented by the victim or the victim's immediate family at any aggravation or mitigation
proceeding or in the presentence report.
I. The court shall inform all of the parties before sentencing occurs of its intent
to increase or decrease a sentence pursuant to this section. If the court fails to
inform the parties, a party waives its right to be informed unless the party timely
objects at the time of sentencing.
J. For the purposes of this section, "trier of fact" means a jury, unless the
defendant and the state waive a jury in which case the trier of fact means the court. 13-702.02 Multiple offenses not committed on the same occasion; sentencing
A. A person who is convicted of two or more felony offenses that were not committed
on the same occasion but that either are consolidated for trial purposes or are not
historical prior felony convictions as defined in section 13-604 shall be sentenced, for
the second or subsequent offense, pursuant to this section.
B. A person sentenced pursuant to this section 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 for paragraphs 1 through 4
of this subsection may be aggravated within the range under this section pursuant to
section 13-702, subsections B, C and D. The presumptive term for paragraph 3 or 4 of this
subsection may be mitigated within the range under this section pursuant to section
13-702, subsections B, C and D. The terms are as follows:
1. For the second dangerous felony offense:
Felony Minimum Maximum
Class 2 10.5 years 21 years
Class 3 7.5 years 15 years
Class 4 6 years 8 years
Class 5 3 years 4 years
Class 6 2.25 years 3 years
2. For any dangerous felony offense subsequent to the second dangerous felony
offense:
Felony Minimum Maximum
Class 2 15.75 years 28 years
Class 3 11.25 years 20 years
Class 4 10 years 12 years
Class 5 5 years 6 years
Class 6 3.75 years 4.5 years
3. For the second nondangerous felony offense:
Felony Minimum Presumptive Maximum
Class 2 4 years 5 years 10 years
Class 3 2.5 years 3.5 years 7 years
Class 4 1.5 years 2.5 years 3 years
Class 5 .75 years 1.5 years 2 years
Class 6 .5 years 1 year 1.5 years
4. For any nondangerous felony offense subsequent to the second felony offense:
Felony Minimum Presumptive Maximum
Class 2 6 years 9.25 years 18.5 years
Class 3 4.5 years 6.5 years 13 years
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
C. For a person sentenced pursuant to subsection B, paragraph 1 or 2 of this
section, the minimum term prescribed shall be the presumptive term.
D. For a person sentenced pursuant to subsection B, paragraph 1, 2, 3 or 4 of this
section, the court may increase the maximum sentence otherwise authorized by up to
twenty-five per cent.
E. For a person sentenced pursuant to subsection B, paragraph 3 or 4 of this
section the court may decrease the minimum sentence otherwise authorized by up to
twenty-five per cent.
F. If the court increases or decreases a sentence pursuant to this section, the
court shall state on the record the reasons for the increase or decrease.
G. The court shall inform all of the parties before the sentencing occurs of its
intent to increase or decrease a sentence pursuant to this section. If the court fails to
inform the parties, a party waives its right to be informed unless the party timely
objects at the time of sentencing.
13-702 Sentencing; definition
A. Sentences provided in section 13-701 for a first conviction of a felony, except
those felonies 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 or if a specific sentence is otherwise provided, may be increased or
reduced by the court within the ranges set by this subsection. Any reduction or increase
shall be based on the aggravating and mitigating circumstances contained in subsections C
and D of this section and shall be within the following ranges:
Minimum Maximum
1. For a class 2 felony 4 years 10 years
2. For a class 3 felony 2.5 years 7 years
3. For a class 4 felony 1.5 years 3 years
4. For a class 5 felony 9 months 2 years
5. For a class 6 felony 6 months 1.5 years
B. The upper or lower term imposed pursuant to section 13-604, 13-604.01,
13-604.02, 13-702.01 or 13-710 or subsection A of this section may be imposed only if one
or more of the circumstances alleged to be in aggravation of the crime are found to be
true by the trier of fact beyond a reasonable doubt, or in mitigation of the crime are
found to be true by the trial judge, on any evidence or information introduced or
submitted to the court or the trier of fact before sentencing or any evidence presented
at trial, and factual findings and reasons in support of such findings are set forth on
the record at the time of sentencing.
C. For the purpose of determining the sentence pursuant to section 13-710 and
subsection A of this section, the trier of fact shall determine and the court shall
consider the following aggravating circumstances:
1. Infliction or threatened infliction of serious physical injury, except if this
circumstance is an essential element of the offense of conviction or has been utilized to
enhance the range of punishment under section 13-604.
2. Use, threatened use or possession of a deadly weapon or dangerous instrument
during the commission of the crime, except if this circumstance is an essential element
of the offense of conviction or has been utilized to enhance the range of punishment
under section 13-604.
3. If the offense involves the taking of or damage to property, the value of the
property so taken or damaged.
4. Presence of an accomplice.
5. Especially heinous, cruel or depraved manner in which the offense was committed.
6. The defendant committed the offense as consideration for the receipt, or in the
expectation of the receipt, of anything of pecuniary value.
7. The defendant procured the commission of the offense by payment, or promise of
payment, of anything of pecuniary value.
8. At the time of the commission of the offense, the defendant was a public servant
and the offense involved conduct directly related to the defendant's office or
employment.
9. The victim or, if the victim has died as a result of the conduct of the
defendant, the victim's immediate family suffered physical, emotional or financial
harm.
10. During the course of the commission of the offense, the death of an unborn child
at any stage of its development occurred.
11. The defendant was previously convicted of a felony within the ten years
immediately preceding the date of the offense. A conviction outside the jurisdiction of
this state for an offense that if committed in this state would be punishable as a felony
is a felony conviction for the purposes of this paragraph.
12. The defendant was wearing body armor as defined in section 13-3116.
13. The victim of the offense is at least sixty-five years of age or is a disabled
person as defined by section 38-492.
14. The defendant was appointed pursuant to title 14 as a fiduciary and the offense
involved conduct directly related to the defendant's duties to the victim as fiduciary.
15. Evidence that the defendant committed the crime out of malice toward a victim
because of the victim's identity in a group listed in section 41-1750, subsection A,
paragraph 3 or because of the defendant's perception of the victim's identity in a group
listed in section 41-1750, subsection A, paragraph 3.
16. The defendant was convicted of a violation of section 13-1102, section 13-1103,
section 13-1104, subsection A, paragraph 3 or section 13-1204, subsection A, paragraph 1
or 2 arising from an act that was committed while driving a motor vehicle and the
defendant's alcohol concentration at the time of committing the offense was 0.15 or more.
For the purposes of this paragraph, "alcohol concentration" has the same meaning
prescribed in section 28-101.
17. Lying in wait for the victim or ambushing the victim during the commission of
any felony.
18. The offense was committed in the presence of a child and any of the
circumstances exist that are set forth in section 13-3601, subsection A.
19. The offense was committed in retaliation for a victim's either reporting
criminal activity or being involved in an organization, other than a law enforcement
agency, that is established for the purpose of reporting or preventing criminal activity.
20. The defendant was impersonating a peace officer as defined in section 1-215.
21. The defendant was in violation of 8 United States Code section 1323, 1324, 1325,
1326 or 1328 at the time of the commission of the offense.
22. The defendant used a remote stun gun or an authorized remote stun gun in the
commission of the offense. For the purposes of this paragraph:
(a) "Authorized remote stun gun" means a remote stun gun that has all of the
following:
(i) An electrical discharge that is less than one hundred thousand volts and less
than nine joules of energy per pulse.
(ii) A serial or identification number on all projectiles that are discharged from
the remote stun gun.
(iii) An identification and tracking system that, on deployment of remote
electrodes, disperses coded material that is traceable to the purchaser through records
that are kept by the manufacturer on all remote stun guns and all individual cartridges
sold.
(iv) A training program that is offered by the manufacturer.
(b) "Remote stun gun" means an electronic device that emits an electrical charge
and that is designed and primarily employed to incapacitate a person or animal either
through contact with electrodes on the device itself or remotely through wired probes
that are attached to the device or through a spark, plasma, ionization or other
conductive means emitting from the device.
23. Any other factor that the state alleges is relevant to the defendant's character
or background or to the nature or circumstances of the crime.
D. For the purpose of determining the sentence pursuant to section 13-710 and
subsection A of this section, the court shall consider the following mitigating
circumstances:
1. The age of the defendant.
2. The defendant's capacity to appreciate the wrongfulness of the defendant's
conduct or to conform the defendant's conduct to the requirements of law was
significantly impaired, but not so impaired as to constitute a defense to prosecution.
3. The defendant was under unusual or substantial duress, although not such as to
constitute a defense to prosecution.
4. The degree of the defendant's participation in the crime was minor, although not
so minor as to constitute a defense to prosecution.
5. Any other factor that is relevant to the defendant's character or background or
to the nature or circumstances of the crime and that the court finds to be mitigating.
If the trier of fact finds at least one aggravating circumstance, the trial court may
find by a preponderance of the evidence additional aggravating circumstances. In
determining what sentence to impose, the court shall take into account the amount of
aggravating circumstances and whether the amount of mitigating circumstances is
sufficiently substantial to call for the lesser term. If the trier of fact finds
aggravating circumstances and the court does not find any mitigating circumstances, the
court shall impose an aggravated sentence.
E. The court in imposing a sentence shall consider the evidence and opinions
presented by the victim or the victim's immediate family at any aggravation or mitigation
proceeding or in the presentence report.
F. Nothing in this section affects any provision of law that imposes the death
penalty, that expressly provides for imprisonment for life or that authorizes or
restricts the granting of probation and suspending the execution of sentence.
G. Notwithstanding any other provision of this title, if a person is convicted of
any class 6 felony not involving the intentional or knowing infliction of serious
physical injury or the discharge, use or threatening exhibition of a deadly weapon or
dangerous instrument and if the court, having regard to the nature and circumstances of
the crime and to the history and character of the defendant, is of the opinion that it
would be unduly harsh to sentence the defendant for a felony, the court may enter
judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may
place the defendant on probation in accordance with chapter 9 of this title and refrain
from designating the offense as a felony or misdemeanor until the probation is
terminated. The offense shall be treated as a felony for all purposes until such time as
the court may actually enter an order designating the offense a misdemeanor. This
subsection does not apply to any person who stands convicted of a class 6 felony and who
has previously been convicted of two or more felonies. If a crime or public offense is
punishable in the discretion of the court by a sentence as a class 6 felony or a class 1
misdemeanor, the offense shall be deemed a misdemeanor if the prosecuting attorney:
1. Files an information in superior court designating the offense as a misdemeanor.
2. Files a complaint in justice court or municipal court designating the offense as
a misdemeanor within the jurisdiction of the respective court.
3. Files a complaint, with the consent of the defendant, before or during the
preliminary hearing amending the complaint to charge a misdemeanor.
H. For the purposes of this section, "trier of fact" means a jury, unless the
defendant and the state waive a jury in which case the trier of fact means the court.
13-703.01 Sentences of death, life imprisonment or natural life; imposition; sentencing proceedings; definitions
(L05, Ch. 325, sec. 4. Conditionally Eff.)
A. If the state has filed a notice of intent to seek the death penalty and the
defendant is convicted of first degree murder, the trier of fact at the sentencing
proceeding shall determine whether to impose a sentence of death in accordance with the
procedures provided in this section. If the trier of fact determines that a sentence of
death is not appropriate, or if the state has not filed a notice of intent to seek the
death penalty, and the defendant is convicted of first degree murder, the court shall
determine whether to impose a sentence of life or natural life.
B. Before trial, the prosecution shall notice one or more of the aggravating
circumstances under section 13-703, subsection F.
C. If the trier of fact finds the defendant guilty of first degree murder, the
trier of fact shall then immediately determine whether one or more alleged aggravating
circumstances have been proven. This proceeding is the aggravation phase of the
sentencing proceeding.
D. If the trier of fact finds that one or more of the alleged aggravating
circumstances have been proven, the trier of fact shall then immediately determine
whether the death penalty should be imposed. This proceeding is the penalty phase of the
sentencing proceeding.
E. At the aggravation phase, the trier of fact shall make a special finding on
whether each alleged aggravating circumstance has been proven based on the evidence that
was presented at the trial or at the aggravation phase. If the trier of fact is a jury, a
unanimous verdict is required to find that the aggravating circumstance has been proven.
If the trier of fact unanimously finds that an aggravating circumstance has not been
proven, the defendant is entitled to a special finding that the aggravating circumstance
has not been proven. If the trier of fact unanimously finds no aggravating circumstances,
the court shall then determine whether to impose a sentence of life or natural life on
the defendant.
F. The penalty phase shall be held immediately after the trier of fact finds at the
aggravation phase that one or more of the aggravating circumstances under section 13-703,
subsection F have been proven. A finding by the trier of fact that any of the remaining
aggravating circumstances alleged has not been proven or the inability of the trier of
fact to agree on the issue of whether any of the remaining aggravating circumstances
alleged has been proven shall not prevent the holding of the penalty phase.
G. At the penalty phase, the defendant and the state may present any evidence that
is relevant to the determination of whether there is mitigation that is sufficiently
substantial to call for leniency. In order for the trier of fact to make this
determination, the state may present any evidence that demonstrates that the defendant
should not be shown leniency.
H. The trier of fact shall determine unanimously whether death is the appropriate
sentence. If the trier of fact is a jury and the jury unanimously determines that the
death penalty is not appropriate, the court shall determine whether to impose a sentence
of life or natural life.
I. If the trier of fact at any prior phase of the trial is the same trier of fact
at the subsequent phase, any evidence that was presented at any prior phase of the trial
shall be deemed admitted as evidence at any subsequent phase of the trial.
J. At the aggravation phase, if the trier of fact is a jury, the jury is unable to
reach a verdict on any of the alleged aggravating circumstances and the jury has not
found that at least one of the alleged aggravating circumstances has been proven, the
court shall dismiss the jury and shall impanel a new jury. The new jury shall not retry
the issue of the defendant's guilt or the issue regarding any of the aggravating
circumstances that the first jury found not proved by unanimous verdict. If the new jury
is unable to reach a unanimous verdict, the court shall impose a sentence of life or
natural life on the defendant.
K. At the penalty phase, if the trier of fact is a jury and the jury is unable to
reach a verdict, the court shall dismiss the jury and shall impanel a new jury. The new
jury shall not retry the issue of the defendant's guilt or the issue regarding any of the
aggravating circumstances that the first jury found by unanimous verdict to be proved or
not proved. If the new jury is unable to reach a unanimous verdict, the court shall
impose a sentence of life or natural life on the defendant.
L. If the jury that rendered a verdict of guilty is not the jury first impaneled
for the aggravation phase, the jury impaneled in the aggravation phase shall not retry
the issue of the defendant's guilt. If the jury impaneled in the aggravation phase is
unable to reach a verdict on any of the alleged aggravating circumstances and the jury
has not found that at least one of the alleged aggravating circumstances has been proven,
the court shall dismiss the jury and shall impanel a new jury. The new jury shall not
retry the issue of the defendant's guilt or the issue regarding any of the aggravating
circumstances that the first jury found not proved by unanimous verdict. If the new jury
is unable to reach a unanimous verdict, the court shall impose a sentence of life or
natural life on the defendant.
M. Alternate jurors who are impaneled for the trial in a case in which the offense
is punishable by death shall not be excused from the case until the completion of the
sentencing proceeding.
N. If the sentence of a person who was sentenced to death is overturned, the person
shall be resentenced pursuant to this section by a jury that is specifically impaneled
for this purpose as if the original sentencing had not occurred.
O. In any case that requires sentencing or resentencing in which the defendant has
been convicted of an offense that is punishable by death and in which the trier of fact
was a judge or a jury that has since been discharged, the defendant shall be sentenced or
resentenced pursuant to this section by a jury that is specifically impaneled for this
purpose.
P. The trier of fact shall make all factual determinations required by this section
or the Constitution of the United States or this state to impose a death sentence. If the
defendant bears the burden of proof, the issue shall be determined in the penalty phase.
If the state bears the burden of proof, the issue shall be determined in the aggravation
phase.
Q. If the death penalty was not alleged or was alleged but not imposed, the court
shall determine whether to impose a sentence of life or natural life. In determining
whether to impose a sentence of life or natural life, the court:
1. May consider any evidence introduced before sentencing or at any other
sentencing proceeding.
2. Shall consider the aggravating and mitigating circumstances listed in section
13-702 and any statement made by a victim.
R. Subject to the provisions of section 13-703, subsection B, a victim has the
right to be present at the aggravation phase and to present any information that is
relevant to the proceeding. A victim has the right to be present at the penalty phase.
At the penalty phase, the victim has the right to be heard pursuant to section 13-4426.
S. For the purposes of this section:
1. "Trier of fact" means a jury unless the defendant and the state waive a jury, in
which case the trier of fact shall be the court.
2. "Victim" means the murdered person's spouse, parent, child, grandparent or
sibling, any other person related to the murdered person by consanguinity or affinity to
the second degree or any other lawful representative of the murdered person, except if
the spouse, parent, child, grandparent, sibling, other person related to the murdered
person by consanguinity or affinity to the second degree or other lawful representative
is in custody for an offense or is the accused. 13-703.01 Sentences of death, life imprisonment or natural life; imposition; sentencing proceedings; definitions
(L05, Ch. 325, sec. 3)
A. If the state has filed a notice of intent to seek the death penalty and the
defendant is convicted of first degree murder, the trier of fact at the sentencing
proceeding shall determine whether to impose a sentence of death in accordance with the
procedures provided in this section. If the trier of fact determines that a sentence of
death is not appropriate, or if the state has not filed a notice of intent to seek the
death penalty, and the defendant is convicted of first degree murder, the court shall
determine whether to impose a sentence of life or natural life.
B. Before trial, the prosecution shall notice one or more of the aggravating
circumstances under section 13-703, subsection F.
C. If the trier of fact finds the defendant guilty of first degree murder, the
trier of fact shall then immediately determine whether one or more alleged aggravating
circumstances have been proven. This proceeding is the aggravation phase of the
sentencing proceeding.
D. If the trier of fact finds that one or more of the alleged aggravating
circumstances have been proven, the trier of fact shall then immediately determine
whether the death penalty should be imposed. This proceeding is the penalty phase of the
sentencing proceeding.
E. At the aggravation phase, the trier of fact shall make a special finding on
whether each alleged aggravating circumstance has been proven based on the evidence that
was presented at the trial or at the aggravation phase. If the trier of fact is a jury, a
unanimous verdict is required to find that the aggravating circumstance has been proven.
If the trier of fact unanimously finds that an aggravating circumstance has not been
proven, the defendant is entitled to a special finding that the aggravating circumstance
has not been proven. If the trier of fact unanimously finds no aggravating circumstances,
the court shall then determine whether to impose a sentence of life or natural life on
the defendant.
F. The penalty phase shall be held immediately after the trier of fact finds at the
aggravation phase that one or more of the aggravating circumstances under section 13-703,
subsection F have been proven. A finding by the trier of fact that any of the remaining
aggravating circumstances alleged has not been proven or the inability of the trier of
fact to agree on the issue of whether any of the remaining aggravating circumstances
alleged has been proven shall not prevent the holding of the penalty phase.
G. At the penalty phase, the defendant and the state may present any evidence that
is relevant to the determination of whether there is mitigation that is sufficiently
substantial to call for leniency. In order for the trier of fact to make this
determination, the state may present any evidence that demonstrates that the defendant
should not be shown leniency.
H. The trier of fact shall determine unanimously whether death is the appropriate
sentence. If the trier of fact is a jury and the jury unanimously determines that the
death penalty is not appropriate, the court shall determine whether to impose a sentence
of life or natural life.
I. If the trier of fact at any prior phase of the trial is the same trier of fact
at the subsequent phase, any evidence that was presented at any prior phase of the trial
shall be deemed admitted as evidence at any subsequent phase of the trial.
J. At the aggravation phase, if the trier of fact is a jury, the jury is unable to
reach a verdict on any of the alleged aggravating circumstances and the jury has not
found that at least one of the alleged aggravating circumstances has been proven, the
court shall dismiss the jury and shall impanel a new jury. The new jury shall not retry
the issue of the defendant's guilt or the issue regarding any of the aggravating
circumstances that the first jury found not proved by unanimous verdict. If the new jury
is unable to reach a unanimous verdict, the court shall impose a sentence of life or
natural life on the defendant.
K. At the penalty phase, if the trier of fact is a jury and the jury is unable to
reach a verdict, the court shall dismiss the jury and shall impanel a new jury. The new
jury shall not retry the issue of the defendant's guilt or the issue regarding any of the
aggravating circumstances that the first jury found by unanimous verdict to be proved or
not proved. If the new jury is unable to reach a unanimous verdict, the court shall
impose a sentence of life or natural life on the defendant.
L. If the jury that rendered a verdict of guilty is not the jury first impaneled
for the aggravation phase, the jury impaneled in the aggravation phase shall not retry
the issue of the defendant's guilt. If the jury impaneled in the aggravation phase is
unable to reach a verdict on any of the alleged aggravating circumstances and the jury
has not found that at least one of the alleged aggravating circumstances has been proven,
the court shall dismiss the jury and shall impanel a new jury. The new jury shall not
retry the issue of the defendant's guilt or the issue regarding any of the aggravating
circumstances that the first jury found not proved by unanimous verdict. If the new jury
is unable to reach a unanimous verdict, the court shall impose a sentence of life or
natural life on the defendant.
M. Alternate jurors who are impaneled for the trial in a case in which the offense
is punishable by death shall not be excused from the case until the completion of the
sentencing proceeding.
N. If the sentence of a person who was sentenced to death is overturned, the person
shall be resentenced pursuant to this section by a jury that is specifically impaneled
for this purpose as if the original sentencing had not occurred.
O. In any case that requires sentencing or resentencing in which the defendant has
been convicted of an offense that is punishable by death and in which the trier of fact
was a judge or a jury that has since been discharged, the defendant shall be sentenced or
resentenced pursuant to this section by a jury that is specifically impaneled for this
purpose.
P. The trier of fact shall make all factual determinations required by this section
or the Constitution of the United States or this state to impose a death sentence. If the
defendant bears the burden of proof, the issue shall be determined in the penalty phase.
If the state bears the burden of proof, the issue shall be determined in the aggravation
phase.
Q. If the death penalty was not alleged or was alleged but not imposed, the court
shall determine whether to impose a sentence of life or natural life. In determining
whether to impose a sentence of life or natural life, the court:
1. May consider any evidence introduced before sentencing or at any other
sentencing proceeding.
2. Shall consider the aggravating and mitigating circumstances listed in section
13-702 and any statement made by a victim.
R. Subject to the provisions of section 13-703, subsection B, a victim has the
right to be present at the aggravation phase and to present any information that is
relevant to the proceeding. A victim has the right to be present and to present
information at the penalty phase. At the penalty phase, the victim may present
information about the murdered person and the impact of the murder on the victim and
other family members and may submit a victim impact statement in any format to the trier
of fact.
S. For the purposes of this section:
1. "Trier of fact" means a jury unless the defendant and the state waive a jury, in
which case the trier of fact shall be the court.
2. "Victim" means the murdered person's spouse, parent, child, grandparent or
sibling, any other person related to the murdered person by consanguinity or affinity to
the second degree or any other lawful representative of the murdered person, except if
the spouse, parent, child, grandparent, sibling, other person related to the murdered
person by consanguinity or affinity to the second degree or other lawful representative
is in custody for an offense or is the accused. 13-703.02 Mental evaluations of capital defendants; hearing; appeal; prospective application; definitions A. In any case in which the state files a notice of intent to seek the death penalty, a person who is found to have mental retardation pursuant to this section shall not be sentenced to death but shall be sentenced to life or natural life. B. If the state files a notice of intent to seek the death penalty, the court shall appoint a prescreening psychological expert in order to determine the defendant's intelligence quotient using current community, nationally and culturally accepted intelligence testing procedures. The prescreening psychological expert shall submit a written report of the intelligence quotient determination to the court within ten days of the testing of the defendant. C. If the prescreening psychological expert determines that the defendant's intelligence quotient is higher than seventy-five, the notice of intent to seek the death penalty shall not be dismissed on the ground that the defendant has mental retardation. If the prescreening psychological expert determines that the defendant's intelligence quotient is higher than seventy-five, the report shall be sealed by the court and be available only to the defendant. The report shall be released on the motion of any party if the defendant introduces the report in the present case or is convicted of an offense in the present case and the sentence is final. A prescreening determination that the defendant's intelligence quotient is higher than seventy-five does not prevent the defendant from introducing evidence of the defendant's mental retardation or diminished mental capacity as a mitigating factor at the penalty phase of the sentencing proceeding. D. If the prescreening psychological expert determines that the defendant's intelligence quotient is seventy-five or less, the trial court shall appoint one or more additional psychological experts to independently determine whether the defendant has mental retardation. If the prescreening psychological expert determines that the defendant's intelligence quotient is seventy-five or less, the trial court, within ten days of receiving the written report, shall order the state and the defendant to each nominate three psychological experts, or jointly nominate a single psychological expert. The trial court shall appoint one psychological expert nominated by the state and one psychological expert nominated by the defendant, or a single psychological expert jointly nominated by the state and the defendant, none of whom made the prescreening determination of the defendant's intelligence quotient. The trial court, in its discretion, may appoint an additional psychological expert who was neither nominated by the state nor the defendant, and who did not make the prescreening determination of the defendant's intelligence quotient. Within forty-five days after the trial court orders the state and the defendant to nominate psychological experts, or on the appointment of such experts, whichever is later, the state and the defendant shall provide to the psychological experts and the court any available records that may be relevant to the defendant's mental retardation status. The court may extend the deadline for providing records on good cause shown by the state or defendant. E. Not less than twenty days after receipt of the records provided pursuant to subsection D of this section, or twenty days after the expiration of the deadline for providing the records, whichever is later, each psychological expert shall examine the defendant using current community, nationally and culturally accepted physical, developmental, psychological and intelligence testing procedures, for the purpose of determining whether the defendant has mental retardation. Within fifteen days of examining the defendant, each psychological expert shall submit a written report to the trial court that includes the expert's opinion as to whether the defendant has mental retardation. F. If the scores on all the tests for intelligence quotient administered to the defendant are above seventy, the notice of intent to seek the death penalty shall not be dismissed on the ground that the defendant has mental retardation. This does not preclude the defendant from introducing evidence of the defendant's mental retardation or diminished mental capacity as a mitigating factor at the penalty phase of the sentencing proceeding. G. No less than thirty days after the psychological experts' reports are submitted to the court and before trial, the trial court shall hold a hearing to determine if the defendant has mental retardation. At the hearing, the defendant has the burden of proving mental retardation by clear and convincing evidence. A determination by the trial court that the defendant's intelligence quotient is sixty-five or lower establishes a rebuttable presumption that the defendant has mental retardation. Nothing in this subsection shall preclude a defendant with an intelligence quotient of seventy or below from proving mental retardation by clear and convincing evidence. H. If the trial court finds that the defendant has mental retardation, the trial court shall dismiss the intent to seek the death penalty, shall not impose a sentence of death on the defendant if the defendant is convicted of first degree murder and shall dismiss one of the attorneys appointed under rule 6.2, ARIZONA rules of criminal procedure unless the court finds that there is good cause to retain both attorneys. If the trial court finds that the defendant does not have mental retardation, the court's finding does not prevent the defendant from introducing evidence of the defendant's mental retardation or diminished mental capacity as a mitigating factor at the penalty phase of the sentencing proceeding. I. Within ten days after the trial court makes a finding on mental retardation, the state or the defendant may file a petition for special action with the ARIZONA court of appeals pursuant to the rules of procedure for special actions. The filing of the petition for special action is governed by the rules of procedure for special actions, except that the court of appeals shall exercise jurisdiction and decide the merits of the claims raised. J. This section applies to all capital sentencing proceedings. K. For the purposes of this section, unless the context otherwise requires: 1. "Adaptive behavior" means the effectiveness or degree to which the defendant meets the standards of personal independence and social responsibility expected of the defendant's age and cultural group. 2. "Mental retardation" means a condition based on a mental deficit that involves significantly subaverage general intellectual functioning, existing concurrently with significant impairment in adaptive behavior, where the onset of the foregoing conditions occurred before the defendant reached the age of eighteen. 3. "Prescreening psychological expert" or "psychological expert" means a psychologist licensed pursuant to title 32, chapter 19.1 with at least two years' experience in the testing, evaluation and diagnosis of mental retardation. 4. "Significantly subaverage general intellectual functioning" means a full scale intelligence quotient of seventy or lower. The court in determining the intelligence quotient shall take into account the margin of error for the test administered. 13-703.03 Capital defendant prescreening evaluation for competency and sanity
A. If the state files a notice of intent to seek the death penalty, unless the
defendant objects, the court shall appoint a psychologist or psychiatrist licensed
pursuant to title 32, chapter 13, 17 or 19.1 to conduct a prescreening evaluation to
determine if reasonable grounds exist to conduct another examination to determine the
following:
1. The defendant's competency to stand trial.
2. Whether the defendant was sane at the time the defendant allegedly committed the
offense.
B. The court may appoint separate psychological experts to conduct each of the
evaluations ordered pursuant to subsection A.
C. The court shall seal any psychological expert's report pursuant to this section,
and the report shall only be available to the defendant. The report shall be released on
the motion of any party if the defendant introduces the report in the present case,
raises a mental health defense at trial or sentencing or is convicted of an offense in
the present case and the sentence is final.
D. If the prescreening evaluation indicates that reasonable grounds exist to
conduct another examination as prescribed by subsection A, the court shall treat the
prescreening evaluation as a preliminary examination pursuant to rule 11.2(c) of the
ARIZONA rules of criminal procedure and shall proceed in accordance with rule 11 of the
ARIZONA rules of criminal procedure. 13-703.04 Death sentences; supreme court review
A. The supreme court shall review all death sentences. On review, the supreme
court shall independently review the trial court's findings of aggravation and mitigation
and the propriety of the death sentence.
B. If the supreme court determines that an error was made regarding a finding of
aggravation or mitigation, the supreme court shall independently determine if the
mitigation the supreme court finds is sufficiently substantial to warrant leniency in
light of the existing aggravation. If the supreme court finds that the mitigation is not
sufficiently substantial to warrant leniency, the supreme court shall affirm the death
sentence. If the supreme court finds that the mitigation is sufficiently substantial to
warrant leniency, the supreme court shall impose a life sentence pursuant to section
13-703, subsection A.
C. The independent review required by subsection A does not preclude the supreme
court from remanding a case for further action if the trial court erroneously excluded
evidence or if the appellate record does not adequately reflect the evidence presented.
13-703.05 Death sentences; supreme court review
A. The supreme court shall review all death sentences to determine whether the
trier of fact abused its discretion in finding aggravating circumstances and imposing a
sentence of death.
B. If the supreme court determines that an error occurred in the sentencing
proceedings, the supreme court shall determine whether the error was harmless beyond a
reasonable doubt. If the supreme court cannot determine whether the error was harmless
beyond a reasonable doubt, the supreme court shall remand the case for a new sentencing
proceeding.
13-703 Sentence of death or life imprisonment; aggravating and mitigating circumstances; definition
A. If the state has filed a notice of intent to seek the death penalty and the
defendant is convicted of first degree murder as defined in section 13-1105, the
defendant shall be sentenced to death or imprisonment in the custody of the state
department of corrections for life or natural life as determined and in accordance with
the procedures provided in section 13-703.01. A defendant who is sentenced to natural
life is not eligible for commutation, parole, work furlough, work release or release from
confinement on any basis. If the defendant is sentenced to life, the defendant shall not
be released on any basis until the completion of the service of twenty-five calendar
years if the murdered person was fifteen or more years of age and thirty-five years if
the murdered person was under fifteen years of age or was an unborn child. In this
section, for purposes of punishment an unborn child shall be treated like a minor who is
under twelve years of age.
B. At the aggravation phase of the sentencing proceeding that is held pursuant to
section 13-703.01, the admissibility of information relevant to any of the aggravating
circumstances set forth in subsection F of this section shall be governed by the rules of
evidence applicable to criminal trials. The burden of establishing the existence of any
of the aggravating circumstances set forth in subsection F of this section is on the
prosecution. The prosecution must prove the existence of the aggravating circumstances
beyond a reasonable doubt.
C. At the penalty phase of the sentencing proceeding that is held pursuant to
section 13-703.01, the prosecution or the defendant may present any information that is
relevant to any of the mitigating circumstances included in subsection G of this section,
regardless of its admissibility under the rules governing admission of evidence at
criminal trials. The burden of establishing the existence of the mitigating
circumstances included in subsection G of this section is on the defendant. The defendant
must prove the existence of the mitigating circumstances by a preponderance of the
evidence. If the trier of fact is a jury, the jurors do not have to agree unanimously
that a mitigating circumstance has been proven to exist. Each juror may consider any
mitigating circumstance found by that juror in determining the appropriate penalty.
D. Evidence that is admitted at the trial and that relates to any aggravating or
mitigating circumstances shall be deemed admitted as evidence at a sentencing proceeding
if the trier of fact considering that evidence is the same trier of fact that determined
the defendant's guilt. The prosecution and the defendant shall be permitted to rebut any
information received at the aggravation or penalty phase of the sentencing proceeding and
shall be given fair opportunity to present argument as to whether the information is
sufficient to establish the existence of any of the circumstances included in subsections
F and G of this section.
E. In determining whether to impose a sentence of death or life imprisonment, the
trier of fact shall take into account the aggravating and mitigating circumstances that
have been proven. The trier of fact shall impose a sentence of death if the trier of fact
finds one or more of the aggravating circumstances enumerated in subsection F of this
section and then determines that there are no mitigating circumstances sufficiently
substantial to call for leniency.
F. The trier of fact shall consider the following aggravating circumstances in
determining whether to impose a sentence of death:
1. The 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.
2. The defendant has been or was previously convicted of a serious offense, whether
preparatory or completed. Convictions for serious offenses committed on the same occasion
as the homicide, or not committed on the same occasion but consolidated for trial with
the homicide, shall be treated as a serious offense under this paragraph.
3. In the commission of the offense the defendant knowingly created a grave risk of
death to another person or persons in addition to the person murdered during the
commission of the offense.
4. The defendant procured the commission of the offense by payment, or promise of
payment, of anything of pecuniary value.
5. The defendant committed the offense as consideration for the receipt, or in
expectation of the receipt, of anything of pecuniary value.
6. The defendant committed the offense in an especially heinous, cruel or depraved
manner.
7. The defendant committed the offense while:
(a) In the custody of or on authorized or unauthorized release from the state
department of corrections, a law enforcement agency or a county or city jail.
(b) On probation for a felony offense.
8. The defendant has been convicted of one or more other homicides, as defined in
section 13-1101, that were committed during the commission of the offense.
9. The defendant was an adult at the time the offense was committed or was tried as
an adult and the murdered person was under fifteen years of age, was an unborn child in
the womb at any stage of its development or was seventy years of age or older.
10. The murdered person was an on duty peace officer who was killed in the course of
performing the officer's official duties and the defendant knew, or should have known,
that the murdered person was a peace officer.
11. The defendant committed the offense with the intent to promote, further or
assist the objectives of a criminal street gang or criminal syndicate or to join a
criminal street gang or criminal syndicate.
12. The defendant committed the offense to prevent a person's cooperation with an
official law enforcement investigation, to prevent a person's testimony in a court
proceeding, in retaliation for a person's cooperation with an official law enforcement
investigation or in retaliation for a person's testimony in a court proceeding.
13. The offense was committed in a cold, calculated manner without pretense of moral
or legal justification.
14. The defendant used a remote stun gun or an authorized remote stun gun in the
commission of the offense. For the purposes of this paragraph:
(a) "Authorized remote stun gun" means a remote stun gun that has all of the
following:
(i) An electrical discharge that is less than one hundred thousand volts and less
than nine joules of energy per pulse.
(ii) A serial or identification number on all projectiles that are discharged from
the remote stun gun.
(iii) An identification and tracking system that, on deployment of remote
electrodes, disperses coded material that is traceable to the purchaser through records
that are kept by the manufacturer on all remote stun guns and all individual cartridges
sold.
(iv) A training program that is offered by the manufacturer.
(b) "Remote stun gun" means an electronic device that emits an electrical charge
and that is designed and primarily employed to incapacitate a person or animal either
through contact with electrodes on the device itself or remotely through wired probes
that are attached to the device or through a spark, plasma, ionization or other
conductive means emitting from the device.
G. The trier of fact shall consider as mitigating circumstances any factors
proffered by the defendant or the state that are relevant in determining whether to
impose a sentence less than death, including any aspect of the defendant's character,
propensities or record and any of the circumstances of the offense, including but not
limited to the following:
1. The defendant's capacity to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of law was significantly impaired, but not so
impaired as to constitute a defense to prosecution.
2. The defendant was under unusual and substantial duress, although not such as to
constitute a defense to prosecution.
3. The defendant was legally accountable for the conduct of another under the
provisions of section 13-303, but his participation was relatively minor, although not so
minor as to constitute a defense to prosecution.
4. The defendant could not reasonably have foreseen that his conduct in the course
of the commission of the offense for which the defendant was convicted would cause, or
would create a grave risk of causing, death to another person.
5. The defendant's age.
H. For purposes of determining whether a conviction of any dangerous crime against
children is a serious offense pursuant to this section, an unborn child shall be treated
like a minor who is under twelve years of age.
I. For the purposes of this section, "serious offense" means any of the following
offenses if committed in this state or any offense committed outside this state that if
committed in this state would constitute one of the following offenses:
1. First degree murder.
2. Second degree murder.
3. Manslaughter.
4. Aggravated assault resulting in serious physical injury or committed by the use,
threatened use or exhibition of a deadly weapon or dangerous instrument.
5. Sexual assault.
6. Any dangerous crime against children.
7. Arson of an occupied structure.
8. Robbery.
9. Burglary in the first degree.
10. Kidnapping.
11. Sexual conduct with a minor under fifteen years of age.
12. Burglary in the second degree.
13. Terrorism.
13-704 Method of infliction of sentence of death; identity of executioners; license suspension
A. The penalty of death shall be inflicted by an intravenous injection of a
substance or substances in a lethal quantity sufficient to cause death, under the
supervision of the state department of corrections.
B. A defendant who is sentenced to death for an offense committed before November
23, 1992 shall choose either lethal injection or lethal gas at least twenty days before
the execution date. If the defendant fails to choose either lethal injection or lethal
gas, the penalty of death shall be inflicted by lethal injection.
C. The identity of executioners and other persons who participate or perform
ancillary functions in an execution and any information contained in records that would
identify those persons is confidential and is not subject to disclosure pursuant to title
39, chapter 1, article 2.
D. If a person who participates or performs ancillary functions in an execution is
licensed by a board, the licensing board shall not suspend or revoke the person's license
as a result of the person's participation in an execution.
13-705 Persons present at execution of sentence of death; limitation
The director of the state department of corrections or the director's designee shall
be present at the execution of all death sentences and shall invite the attorney general
and at least twelve reputable citizens of the director's selection to be present at the
execution. The director shall, at the request of the defendant, permit clergymen, not
exceeding two, whom the defendant names and any persons, relatives or friends, not
exceeding five, to be present at the execution. The director may invite peace officers
as the director deems expedient to witness the execution. No persons other than those
set forth in this section shall be present at the execution nor shall any minor be
allowed to witness the execution.
13-706 Death warrant; return
A. After a conviction and sentence of death are affirmed and the first
post-conviction relief proceedings have concluded, the supreme court shall issue a
warrant of execution that authorizes the director of the state department of corrections
to carry out the execution thirty-five days after the supreme court's mandate or order
denying review or upon motion by the state. The supreme court shall grant subsequent
warrants of execution on a motion by the state. The time for execution shall be fixed
for thirty-five days after the state's motion is granted.
B. Upon the execution of a sentence of death, the director of the state department
of corrections shall make a return upon the death warrant to the court which pronounced
sentence and the supreme court, showing the time, mode and manner in which it was
executed.
13-707 Sentence of imprisonment for misdemeanor
A. A sentence of imprisonment for a misdemeanor shall be for a definite term to be
served other than a place within custody of the state department of corrections. The
court shall fix the term of imprisonment within the following maximum limitations:
1. For a class 1 misdemeanor, six months.
2. For a class 2 misdemeanor, four months.
3. For a class 3 misdemeanor, thirty days.
B. The court may, pursuant to this section, direct that the person sentenced shall
not be released on any basis until the sentence imposed by the court has been served.
13-708 Consecutive terms of imprisonment
Except as otherwise provided by statute, if multiple sentences of imprisonment are
imposed on a person at the same time, or when a person who is subject to any undischarged
term of imprisonment imposed at a previous time is sentenced to an additional term of
imprisonment, the sentence or sentences imposed by the court shall run consecutively
unless the court expressly directs otherwise, in which case the court shall set forth on
the record the reason for its sentence.
13-709 Calculation of terms of imprisonment
A. A sentence of imprisonment commences when sentence is imposed if the defendant
is in custody or surrenders into custody at that time. Otherwise it commences when the
defendant becomes actually in custody.
B. All time actually spent in custody pursuant to an offense until the prisoner is
sentenced to imprisonment for such offense shall be credited against the term of
imprisonment otherwise provided for by this chapter.
C. If a sentence of imprisonment is vacated and a new sentence is imposed on the
defendant for the same offense, the new sentence is calculated as if it had commenced at
the time the vacated sentence was imposed, and all time served under the vacated sentence
shall be credited against the new sentence.
D. If a person serving a sentence of imprisonment escapes from custody, the escape
interrupts the sentence. The interruption continues until the person is apprehended and
confined for the escape or is confined and subject to a detainer for the escape. Time
spent in actual custody prior to return under this subsection shall be credited against
the term authorized by law if custody rested on an arrest or surrender for the escape
itself, or if the custody arose from an arrest on another charge which culminated in a
dismissal or an acquittal, and the person was denied admission to bail pending
disposition of that charge because of a warrant lodged against such person arising from
the escape.
E. The sentencing court shall include the time of commencement of sentence under
subsection A and the computation of time credited against sentence under subsection B, C
or D, in the original or an amended commitment order, under procedures established by
rule of court.
13-710 Sentence for second degree murder
A. Except as provided in section 13-604, subsection S or section 13-604.01, a
person who stands convicted of second degree murder as defined by section 13-1104 shall
be sentenced to a presumptive term of sixteen calendar years. The presumptive term
imposed pursuant to this subsection may be mitigated or aggravated by up to six years
pursuant to the terms of section 13-702, subsections C and D.
B. Except as provided in section 13-604, subsection S or section 13-604.01, a
person who stands convicted of second degree murder as defined by section 13-1104 and who
has previously been convicted of second degree murder or a class 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 a
presumptive term of twenty calendar years. The presumptive term imposed pursuant to this
subsection may be mitigated or aggravated by up to five years pursuant to the terms of
section 13-702, subsections C and D.
13-711 Offenses involving domestic violence; sentencing
If a person is convicted of an offense involving domestic violence and the victim
was pregnant at the time of the commission of the offense, at the time of sentencing the
court shall take into consideration the fact that the victim was pregnant and may
increase the sentence.
13-712 Sentence for certain drug offenses
A. A person who stands convicted of a violation of section 13-3407, subsection A,
paragraph 2, 3, 4 or 7 involving methamphetamine shall be sentenced to a presumptive term
of ten calendar years. The presumptive term imposed pursuant to this subsection may be
mitigated or aggravated by up to five years pursuant to section 13-702, subsections C and
D.
B. A person who stands convicted of a violation of section 13-3407, subsection A,
paragraph 2, 3, 4 or 7 involving methamphetamine and who has previously been convicted of
a violation of section 13-3407, subsection A, paragraph 2, 3, 4 or 7 involving
methamphetamine or section 13-3407.01 shall be sentenced to a presumptive term of fifteen
calendar years. The presumptive term imposed pursuant to this subsection may be
mitigated or aggravated by up to five years pursuant to section 13-702, subsections C
and D.
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