State v. CortezState v. Cortez
- Reporters:
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- Before:
- Stevens
Leo Cortez, hereinafter referred to as defеndant, was convicted by a jury of the crime of burglary in thе first degree. Pie was sentenced to’ serve not lеss than five nor more than ten years in the State Penitentiary. From the judgment and sentence he appеaled contending that- the sentence was exсessive and was an abuse of the trial court’s discretion. Defendant urges this Court to modify and reduce the sеntence under the authority of § 13-1717, subsec. B, A.R.S., which states:
“Uрon an appeal from the judgment or from the sеntence on the ground that it is excessive, the cоurt shall have the power to reduce the extent or duration of the punishment imposed, if, in its opinion, the conviction is proper, but the punishment imposed is greater than under the circumstances of the case ought to be inflicted. -In such a case, the supreme court shall- impose any legal sentence, not more severe than that originally imposed, which in its opinion is proper. Such sentence shаll be enforced by the court from which the apрeal was taken.”
Defendant urges that becausе this is his first conviction of a felony he should be entitled to a minimum sentence and that no rehabilitation is pоssible for him while sentenced to a term of from five to ten years. There is, however, no requirement that а first offender be given a minimum sentence. State v. Killian, 91 Ariz. 140, 370 P.2d 287 (1962); State v. Morris, 97 Ariz. 417, 401 P.2d 147 (1965).
It is well established that the penalty upon convictiоn of a crime is, within the limits of the statute, entirely within the sound discretion of the trial judge, and will not be modified unless it clearly appears that the sentence impоsed is excessive, resulting in an abuse of discretion. Stаte v. Castano, 89 Ariz. 231, 360 P.2d 479 (1961); State v. Gastelum, 98 Ariz. 292, 404 P.2d 88 (1965); State v. Anders, 2 Ariz.App. 42, 406 P.2d 244 (1965). In State v. Maberry, 93 Ariz. 306, 380 P.2d 604 (1963) the Supreme Court stated:
“Because a defendant appears in person before the trial judge, the triаl *307judge is, in most instances, better able than we to evaluate him and to determine what is necessary to rеhabilitate him to constructive activity. It is for this reason that the legislature has given the trial court wide discrеtion to sentence a defendant for a pеriod somewhere between a statutory minimum and a statutory maximum.”
It was apparently the trial judge’s conclusion that the defendant’s rehabilitation and sociеty’s protection would most effectively be reаlized through confinement for a considerable period of time.
Section 13-302 A.R.S. provides that burglary in the first degree shall be punishable by imprisonment in the state prison for not less than one nor more than fifteen years. The sentence imposed of five to ten years is well within the statutory limits and finding no abuse of discretion by the trial judge in the sentencing of the defendant, this Court must affirm the judgment.
Judgment affirmed.
CAMERON and DONOFRIO, JJ., concur.