State v. Ewell

¶1(dissenting in part):

¶2I concur in the result the main opinion reaches on the juror issue. I respectfully dissent, however, from the reversal of the trial court’s application of the firearm enhancement statute, Utah Code Ann. § 76-3-203(4) (1990).

¶3Defendant was charged, in one information, with one count of aggravated robbery. In a second unrelated information, he was charged with one count of aggravated robbery, one count of theft, and one count of theft by deception. The first case was tried to a jury on December 12-13, 1991. The jury found defendant guilty as charged. Defendant later pleaded guilty to one count of aggravated robbery in the other information. The counts of theft and theft by deception were dismissed.

¶4On February 28, 1992, the court sentenced defendant. First, the court sentenced and convicted defendant on the jury verdict. Next, the court sentenced and convicted defendant on the guilty plea. Finally, the court determined that it was required to impose the penalty enhancement under section 76-3-203(4), and sentenced defendant to an additional five years.

¶5Section 76-3-203(4) states, in relevant part:

A person who has been convicted of a felony may be sentenced to imprisonment for an indeterminate term as follows:

*1365(4) Any person who has been sentenced to a term of imprisonment for a felony in which a firearm was used ... and is convicted of another felony when a firearm was used ... shall, in addition to any other sentence imposed, be sentenced for an indeterminate term to be not less then five nor more then ten years to run consecutively and not concurrently.

¶6(Emphasis added.) In reversing the enhancement imposed under this statute, my colleagues erroneously hold that a conviction precedes a sentence.

¶7A “conviction” is referred to in our rules as a “judgment of conviction” and includes “the plea or verdict, if any, and the sentence.” Utah R.Crim.P. 22(c) (1993).1See also State v. Duncan, 812 P.2d 60, 62 (Utah App.) (“ ‘conviction’ refers to the final judgment entered on the plea or verdict of guilty”), cert. denied 826 P.2d 651 (Utah 1991).2 Thus, under our rules, it is not possible to be convicted without first being sentenced. The sentence is part of the conviction.

¶8Under section 76-3-203(4), all that is required for enhancement is that a person must have been sentenced for a felony involving a firearm, and then be convicted of another felony also involving a firearm.3 The State correctly asserts that “defendant was not convicted of either crime until he received his sentence.”

¶9Defendant was sentenced and convicted of two separate unrelated crimes on the same day. At the time defendant was sentenced and convicted on the guilty plea, he had already been sentenced and convicted on the jury verdict. It does not make any analytical or logical difference that he was sentenced for the previous crime only moments before. The fact remains that he was “sentenced” for a crime involving a firearm and then “convicted” for a second crime involving a firearm. Thus, the trial court was correct in its assessment that defendant’s sentence should be enhanced pursuant to section 76-3-203(4).

¶10The trial court did err, however, in imposing the enhancement for a fixed five-year term. As conceded by the State, section 76-3-203(4) actually provides that the enhancement for a subsequent conviction shall be “for an indeterminate term to be not less than five nor more than ten years[.]” Therefore, while the trial court properly determined that defendant’s sentence should be enhanced, it erred in not sentencing defendant to an indeterminate term.

¶11I would therefore uphold the trial court’s application of section 76-3-203(4), and correct the enhancement of defendant’s sentence to provide for an indeterminate term.