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May 26, 2005

Interesting Blakely developments from Indiana, Minnesota and Oregon

With new Booker data and the prospect of the federal plain error issue going up to the Supreme Court, it is easy to forget about all the Blakely excitement in the states.   But this week alone there has already been notable Blakely developments in at least three states:

From Indiana, we get a fascinating ruling in Williams v. Indiana, No. 49S02-0505-CR-242 (Ind. May 25, 2005) (available here), in which the Indiana Supreme Court uses its "review and revise" power to essentially circumvent a Blakely problem.  The sentence below involved a Blakely-problematic enhancements on two counts of conviction, but the Indiana Supreme Court decided it could lawfully impose the same sentence by instead ordering consecutive sentences (which, in Smylie, this same court concluded raised no Blakely concerns).  This Williams decision is thus a remarkable study in form over substance (and I will be eager to see what Michael Ausbrook over at INCourts thinks of this one).

From Minnesota, I have news from an always helpful North Star State correspondent that the state legislature passed legislation to "Blakely-ize" the Minneosta guidelines (following, I believe, the recommendations of the Minnesota Sentencing Guidelines Commission).  The full bill is here, though it takes a sharp eye to see the key jury trial provisions.

From Oregon, I have news from an always helpful Beaver State correspondent that the Oregon Supreme Court issued some orders today with Blakely implications.   As detailed toward the end of this list of actions, the court (1) issued "alternative writs of mandamus" in two cases, State v. Upton, S52316, and State v. Sawatzky, S52332, to explore whether a trial court has authority to empanel a sentencing jury, or else to submit certain facts to the jury in the guilt phase, where those facts are necessary to establish the basis for an upward departure, and (2) granted the State's petition for review in State v. Gornick, S52252, A121042, in which the court will explore "plain error" concepts in deciding how to address a Blakely issue not raised below.

May 26, 2005 at 10:29 PM | Permalink


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