STATE v. MONTOYA

No. 1 CA-CR 01-0976.

65 P.3d 475 (2003)

204 Ariz. 526

STATE of Arizona, Appellee, v. Louie Ernesto MONTOYA, Appellant.

Court of Appeals of Arizona, Division 1, Department D.

April 1, 2003.


Attorney(s) appearing for the Case

Terry Goddard, Attorney General, By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Consuelo M. Ohanesian, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender, By Stephen R. Collins, Deputy Public Defender, Phoenix, Attorneys for Appellant.


OPINION

GARBARINO, Presiding Judge.

¶ 1 We hold that a defendant's sentence cannot be enhanced using elements identical with those required to obtain the defendant's conviction. Specifically, here, the defendant's sentence for participating in a criminal street gang was inappropriately enhanced on the basis that he had acted to promote or assist a criminal street gang.

¶ 2 The defendant appeals his sentence for participating in a criminal...

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