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July 21, 2005

An overview of Blakely in the states

With the Roberts' nomination and new USSC Booker data providing so much quality blog copy, I have not recently given much attention to Blakely in the states.  But, as I detailed in posts here and here earlier this month, state Blakely developments continue to be dynamic.  And those interested in catching up on all the action should already have their calenders marked for next month's 2005 Conference of the National Association of Sentencing Commissions taking place in Washington DC on August 7-9.  As fully detailed in this schedule, there will be lots of state Blakely discussion throughout the conference (as well as some federal Booker talk, too).  You can register via this link.

My attention has returned to state Blakely stories in part because one of my crackerjack research assistants has recently assembled and organized many of my state Blakely posts in a series of Word documents.  Anyone interested in taking another look at the general story of Blakely in the states can download below a collection of posts that provide an overview of basic post-Blakely state legal developments.

Download slp_posts_with_blakely_in_the_states_overview.doc

July 21, 2005 at 09:04 AM | Permalink

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Blakely and Booker and the Florida Releasee Reoffender Act (mandatory maximum sentence if commit recent offense within 3 years of release from prison, or in prison, or on escape) Held did PRR Act and sentence thereto not violate Blakely/Booker. (Appeal to Florida Suprme Court pending(Discretionary review request pending)
Gurley v. State, 2005 WL 1751460 (Fla. 4th DCA July 27, 2005)Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
District Court of Appeal of Florida,
Fourth District.
Derrick D. GURLEY, Appellant,
v.
STATE of Florida, Appellee.
No. 4D04-2697.
July 27, 2005 .
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Stephen A. Rapp, Judge; L.T. Case No. 03CF009100A02.
Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L'Italien, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, Gross, J.
*1 After a jury trial, appellant Derrick Gurley was convicted of burglary of an occupied dwelling. The trial court sentenced him as a prison releasee reoffender pursuant to section 775.082(9), Florida Statutes (2004).
On appeal Gurley argues that his prison releasee reoffender sentence was improper under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), because it was a judge, and not a jury, who determined that his current conviction fell within three years of his release from prison.
In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The supreme court revisited Apprendi in Blakely and extended its application to sentencing guideline schemes which allow judges to sentence more severely based on facts that are a part of the criminal offense. For example, Blakely involved a defendant whose sentence was enhanced because he had acted with “deliberate cruelty” in committing the underlying crime.
Recidivist sentencing statutes based on a defendant's prior criminal record fall outside of Apprendi and Blakely. The Florida Supreme Court has held that Apprendi does not apply to prison releasee reoffender sentences. See McGregor v. State, 789 So.2d 976 (Fla.2001). We have held that Apprendi does not apply to recidivism statutes, so that a jury is not required to find the existence of predicate convictions beyond a reasonable doubt before a habitual felony offender sentence may be imposed. See McBride v. State, 884 So.2d 476, 477 (Fla. 4th DCA 2004); see also Frumenti v. State, 885 So.2d 924, 925 (Fla. 5th DCA 2004); United States v. Marseille, 377 F.3d 1249, 1257 n. 14 (11th Cir.2004). For the purpose of applying Apprendi and Blakely, the date of a defendant's release from prison under the prison releasee reoffender statute is analogous to the fact of a prior conviction under the habitual felony offender statute. For these rreasons, the conviction and sentence are affirmed.

STEVENSON, C.J., and SHAHOOD, J., concur.
Fla.App. 4 Dist.,2005.
Gurley v. State
--- So.2d ----, 2005 WL 1751460 (Fla.App. 4 Dist.)

Posted by: A.Calvello | Aug 1, 2005 4:55:55 PM

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