Michael Allan Durosko v. Samuel A. Lewis Arizona Attorney General

Durosko appeals the denial of his petition for a writ of habeas corpus, claiming that his enhanced penalty was a violation of the prohibition against double jeopardy.

Durosko was convicted of two counts of armed robbery. The state sought sentence enhancements under two separate provisions of Arizona law. Both allegations were predicated on the same Texas conviction.

First, the state alleged, pursuant to Ariz. Rev.Stat.Ann. [hereinafter A.R.S.] § 13-604 (1978), that Durosko had a prior felony conviction. An allegation of a prior felony conviction under § 13-604 is tried to a jury and must be proved beyond a reasonable doubt. State v. Pennye, 102 Ariz. 207, 427 P.2d 525, 526 (1967). As applied to Durosko, the effect of § 13-604 would have been to preclude the reduction of his sentence through mitigation, increase the potential sentence which could be imposed, and set a minimum portion of the sentence imposed that must be served prior to eligibility for release.

The state also alleged, pursuant to A.R.S. § 13-604.01 (1982) (now § 13-604.02 (1985)) that Durosko committed the robberies while on release status from a prior felony conviction. At the time of Duros-ko’s sentencing, an…