13-703. Repetitive offenders;
sentencing
A. A person shall be sentenced as a category one repetitive offender if the person
is convicted of two felony offenses that were not committed on the same occasion but that
either are consolidated for trial purposes or are not historical prior felony
convictions.
B. A person shall be sentenced as a category two repetitive offender if the person
either:
1. Is convicted of three or more felony offenses that were not committed on the
same occasion but that either are consolidated for trial purposes or are not historical
prior felony convictions.
2. Except as provided in section 13-704 or 13-705, is at least eighteen years of
age or has been tried as an adult and stands convicted of a felony and has one historical
prior felony conviction.
C. Except as provided in section 13-704 or 13-705, a person shall be sentenced as a
category three repetitive offender if the person is at least eighteen years of age or has
been tried as an adult and stands convicted of a felony and has two or more historical
prior felony convictions.
D. The presumptive term set by this section may be aggravated or mitigated within
the range under this section pursuant to section 13-701, subsections C, D and E.
E. If a person is sentenced as a category one repetitive offender pursuant to
subsection A of this section and if at least two aggravating circumstances listed in
section 13-701, subsection D apply or at least two mitigating circumstances listed in
section 13-701, subsection E apply, the court may impose a mitigated or aggravated
sentence pursuant to subsection H of this section.
F. If a person is sentenced as a category two repetitive offender pursuant to
subsection B, paragraph 2 of this section and if at least two aggravating circumstances
listed in section 13-701, subsection D apply or at least two mitigating circumstances
listed in section 13-701, subsection E apply, the court may impose a mitigated or
aggravated sentence pursuant to subsection I of this section.
G. If a person is sentenced as a category three repetitive offender pursuant to
subsection C of this section and at least two aggravating circumstances listed in section
13-701, subsection D or at least two mitigating circumstances listed in section 13-701,
subsection E apply, the court may impose a mitigated or aggravated sentence pursuant to
subsection J of this section.
H. A category one repetitive offender shall be sentenced within the following
ranges:
Felony Mitigated Minimum Presumptive Maximum Aggravated
Class 2 3 years 4 years 5 years 10 years 12.5 years
Class 3 1.8 years 2.5 years 3.5 years 7 years 8.75 years
Class 4 1.1 years 1.5 years 2.5 years 3 years 3.75 years
Class 5 .5 years .75 years 1.5 years 2 years 2.5 years
Class 6 .3 years .5 years 1 year 1.5 years 1.8 years
I. A category two repetitive offender shall be sentenced within the following
ranges:
Felony Mitigated Minimum Presumptive Maximum Aggravated
Class 2 4.5 years 6 years 9.25 years 18.5 years 23.1 years
Class 3 3.3 years 4.5 years 6.5 years 13 years 16.25 years
Class 4 2.25 years 3 years 4.5 years 6 years 7.5 years
Class 5 1 year 1.5 years 2.25 years 3 years 3.75 years
Class 6 .75 years 1 year 1.75 years 2.25 years 2.75 years
J. A category three repetitive offender shall be sentenced within the following
ranges:
Felony Mitigated Minimum Presumptive Maximum Aggravated
Class 2 10.5 years 14 years 15.75 years 28 years 35 years
Class 3 7.5 years 10 years 11.25 years 20 years 25 years
Class 4 6 years 8 years 10 years 12 years 15 years
Class 5 3 years 4 years 5 years 6 years 7.5 years
Class 6 2.25 years 3 years 3.75 years 4.5 years 5.75 years
K. The aggravated or mitigated term imposed pursuant to subsection H, I or J of
this section may be imposed only if at least two of the aggravating circumstances are
found beyond a reasonable doubt to be true by the trier of fact or are admitted by the
defendant, except that an aggravating circumstance under section 13-701, subsection D,
paragraph 11 shall be found to be true by the court, or in mitigation of the crime are
found to be true by the court, on any evidence or information introduced or submitted to
the court or the trier of fact before sentencing or any evidence presented at trial, and
factual findings and reasons in support of these findings are set forth on the record at
the time of sentencing.
L. Convictions for two or more offenses committed on the same occasion shall be
counted as only one conviction for the purposes of subsection B, paragraph 2 and
subsection C of this section.
M. For the purposes of subsection B, paragraph 2 and subsection C of this section,
a person who has been convicted in any court outside the jurisdiction of this state of an
offense that if committed in this state would be punishable as a felony is subject to
this section. A person who has been convicted as an adult of an offense punishable as a
felony under the provisions of any prior code in this state is subject to this section.
N. The penalties prescribed by this section shall be substituted for the penalties
otherwise authorized by law if an allegation of prior conviction is charged in the
indictment or information and admitted or found by the court. The release provisions
prescribed by this section shall not be substituted for any penalties required by the
substantive offense or a provision of law that specifies a later release or completion of
the sentence imposed before release. The court shall allow the allegation of a prior
conviction at any time before the date the case is actually tried unless the allegation
is filed fewer than twenty days before the case is actually tried and the court finds on
the record that the person was in fact prejudiced by the untimely filing and states the
reasons for these findings. If the allegation of a prior conviction is filed, the state
must make available to the person a copy of any material or information obtained
concerning the prior conviction. The charge of previous conviction shall not be read to
the jury. For the purposes of this subsection, "substantive offense" means the felony
offense that the trier of fact found beyond a reasonable doubt the person committed.
Substantive offense does not include allegations that, if proven, would enhance the
sentence of imprisonment or fine to which the person otherwise would be subject.
O. A person who is sentenced pursuant to this section is not eligible for
suspension of sentence, probation, pardon or release from confinement on any basis,
except as specifically authorized by section 31-233, subsection A or B, until the
sentence imposed by the court has been served, the person is eligible for release
pursuant to section 41-1604.07 or the sentence is commuted.
P. The court shall inform all of the parties before sentencing occurs of its intent
to impose an aggravated or mitigated sentence pursuant to subsection H, I or J of this
section. If the court fails to inform the parties, a party waives its right to be
informed unless the party timely objects at the time of sentencing.
Q. The court in imposing a sentence shall consider the evidence and opinions
presented by the victim or the victim's immediate family at any aggravation or mitigation
proceeding or in the presentence report.
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