State v. McNair

FELDMAN, Justice,

specially concurring.

I concur with all aspects of the opinion except the discussion of the constitutionality of A.R.S. § 13-604.01. My views on that issue are set forth in my dissent in State v. Garcia, 141 Ariz. 97, 685 P.2d 734 (1984). I adhere to the position that the legislature may not, consistent with the constitution, deprive trial court judges of discretion to weigh the facts of the individual offense and offender in order to set appropriate punishment within the range specified by the legislature. The legislature may require enhancement of punishment, but not prescribe one specific punishment to apply to all offenses and offenders who fall within the ambit of the statute.

Because I see no reasonable possibility that this offender would have received less than a life sentence for this offense, I concur in the result as well as in all other parts of the opinion.