(DOWNLOAD) "Royce T. Gilbreath v. State Alaska" by Court Of Appeals Of Alaska " Book PDF Kindle ePub Free
eBook details
- Title: Royce T. Gilbreath v. State Alaska
- Author : Court Of Appeals Of Alaska
- Release Date : January 26, 1983
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 58 KB
Description
BRYNER, Chief Judge. OPINION Royce Gilbreath pled nolo contendere to one count of misconduct involving weapons in the first degree, AS 11.61.200(a)(1). He was sentenced as a third felony offender under the presumptive sentencing statute; the prior convictions proven by the state were for assault with a dangerous weapon in 1976 and felon in possession of a weapon in 1978. Gilbreath was thus subject to the three-year presumptive term for this class C felony. AS 12.55.125(e)(2). Superior Court Judge Victor D. Carlson found two factors in aggravation pursuant to AS 12.55.155(c) and sentenced Gilbreath to five years' imprisonment with eighteen months suspended. Gilbreath challenges the sentence on a variety of grounds. We affirm. The first contention raised by Gilbreath on appeal is that he should not have been sentenced as a third offender, due to the fact that a prior conviction is a necessary element of misconduct involving weapons under AS 11.61.200(a)(1). 1 In Fry v. States, 655 P.2d 789 (Alaska App. 1983), we rejected the contention that use of the same conviction to prove this element of AS 11.61.200(a)(1) as well as to trigger application of presumptive sentencing is improper. Gilbreath's situation differs from that in Fry in that Gilbreath was sentenced as a third felony offender and one of his prior felonies was under the federal felon in possession statute, which, like AS 11.61.200(a)(1), requires a prior felony conviction. See 18 U.S.C. App. § 1202 (1968). We are not convinced, however, that these facts require a different analysis than that used in Fry. Indeed, Gilbreath argued at sentencing that he should be subject to presumptive sentencing as a second offender, apparently reasoning that one of his felony convictions should be used as the underlying felony for AS 11.61.200(a)(1) while the other could be used to trigger presumptive sentencing. This would make Gilbreath's argument identical to the one rejected in Fry. We therefore conclude that the trial court did not err in sentencing Gilbreath as a third felony offender. 655 P.2d at 792 & n.2.