An element of an offense cannot be used to elevate the sentence
The Fourth District Court of Appeals for Gallia County says that a trial judge abuses his discretion when he considers an improper sentencing factor in sentencing a defendant. The Court of Appeals reversed the sentence of a man convicted of aggravated robbery because the judge used the fact that a deadly weapon was used as a factor justifying a stiffer sentence for aggravated robbery. But to charge aggravated robbery as this defendant was charged, there had to be a deadly weapon. So the judge abused his discretion in enhancing the sentence based on the deadly weapon which was an element of the offense for which the defendant was convicted. Read the decision in State v. Sims, 2012-Ohio-238, here.
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