State v. Virgo
In State v. Virgo, 190 Ariz. 349, 353-54, 947 P.2d 923, 927-28 (App. 1997) the Court vacated the defendant's sentence for possession of over four pounds of marijuana because, even though the parties had stipulated that the marijuana seized from his car had weighed thirty-five pounds and the court had accepted that stipulation, the jury had not been asked to and had not specifically found the weight of the drugs.
Reducing the offense from a class four to a class six felony and remanding the case for resentencing, the court reasoned that, "because a jury has the power to return a 'not guilty' verdict despite the facts, a judge may not rely on a stipulated fact as conclusively proven unless a jury finds it proven--no matter how uncontroverted the evidence." Id. at 354, 947 P.2d at 928.
The court concluded:
We hold a jury must actually find a defendant guilty of an element before a judge may use that element to increase the sentence or classification of offense.
The right to a jury trial prevents a sentencing judge from increasing the classification of an offense based on a finding not explicitly adopted by the jury in its verdict. Id.