September 11, 2006
Colorado Supreme Court says Blakely not retroactive
As noted here, the one major lower court ruling that Blakely was to apply retroactively to Apprendi came from the Colorado Court of Appeals in People v. Johnson, No. 03CA2339 (Col. App. Apr. 7, 2005). Today, the Colorado Supreme Court reversed the Court of Appeals' Johnson opinion in and ruled that Blakely is not to be applied retroactively. The opinion, available here, has this official summary:
The Supreme Court granted certiorari to review the court of appeals' holding that the rule in Blakely v. Washington, 542 U.S. 296 (2004), applies retroactively to cases that were pending on direct review when the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000). The court of appeals vacated Respondent Robin Johnson's sentence because Johnson's case was pending when Apprendi was decided.
The Supreme Court reverses the court of appeals, holding that Blakely announced a new constitutional rule of criminal procedure that does not fall under the exception to the general rule of nonretroactivity of new procedural rules. Therefore, the Blakely rule only applies to cases that were pending on direct review at the time that Blakely was decided. Respondent Johnson's conviction was final when Blakely was announced and consequently Johnson is not entitled to the benefit of the Blakely rule.
Of course, the US Supreme Court is due to hear this exact issue this coming Term in Burton v. Waddington. The posts below provide lots of background on Burton:
September 11, 2006 at 12:30 PM | Permalink
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Since there is no longer a split of authority, shouldn't the Supreme Court simply "dismiss as improvidently granted"?
Posted by: Kent Scheidegger | Sep 11, 2006 6:19:49 PM
Not if they think everyone has it wrong, Kent.... Indeed, arguably they would not have granted cert. if they did not think everyone had it wrong.
Posted by: Doug B. | Sep 11, 2006 6:24:01 PM
It only takes 4 to grant, 5 to reverse.
Posted by: Kent Scheidegger | Sep 11, 2006 6:48:42 PM
The "split of authority" thing was always sort of bogus. The split was everyone in the world vs. an unpublished intermeditate state court of appeals. I doubt that the "split" was what caused the court to grant cert.
Posted by: Ron | Sep 12, 2006 11:11:10 AM