State v. Diaz , 142 Ariz. 119 ( 1984 )

142 Ariz. 119 (1984) 688 P.2d 1011

STATE of Arizona, Appellee,
v.
Louis Martinez DIAZ, Appellant.

No. 6303-PR.

Supreme Court of Arizona, En Banc.

October 3, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Greg A. McCarthy, Phoenix, for appellee.

Charles L. Weninger, Tucson, for appellant.

HOLOHAN, Chief Justice.

The defendant Louis Martinez Diaz was tried and convicted of two counts charging burglary in the second degree with a prior conviction. The trial court sentenced him to prison for 7.5 years on each count with the sentences to be served concurrently. The sentence on each count was enhanced by reason of the conviction on the other count.

On appeal, the Court of Appeals affirmed the convictions but reduced the sentence on one of the counts to 5 years. State v. Louis Martinez Diaz, 142 Ariz. 136, 688 P.2d 1028 (App. 1984). The defendant and the state filed for review. We denied the defendant's petition for review and granted that of the state. The issue presented for review by the state was:

"When a defendant is charged with two offenses occurring on separate occasions but consolidated for trial, and each offense is alleged to be a prior of the other pursuant to Ariz. Rev. Stat. Ann. § 13-604(H), and the defendant is convicted of both offenses, must the trial court treat each conviction as a subsequent one for sentencing purposes?"

The Court of Appeals answered the above question by holding that only one of the two convictions could be considered a prior. We agree with the decision and reasoning of the Court of Appeals; therefore, the opinion of the Court of Appeals is approved and adopted by this court. Any suggestion to the contrary in State v. Rybolt, 133 Ariz. 276, 650 P.2d 1258 (App. 1982), is overruled.

The judgments of conviction are affirmed, and the sentences as modified by the Court of Appeals are affirmed.

GORDON, V.C.J., and HAYS, CAMERON and FELDMAN, JJ., concur.