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February 13, 2008

Oregon AG seeks cert on Blakely's applicability

As detailed in this post, a few months ago the Oregon Supreme Court held in State v. Ice, No. S52248 (Ore. Oct. 11, 2007) (available here), that the "federal constitution requires that a jury, rather than a judge, find the facts that Oregon law requires be present before a judge can impose consecutive sentences."  The Attorney General of Oregon does not agree and is now seeking Supreme Court review of this question:

Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), is violated by the imposition of consecutive sentences based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.

Oregon's petition for cert with this question can be downloaded below, and here are part of the "reasons for granting" section of the petition:

This Court should grant the petition for writ of certiorari and review this case for two reasons. First, the Oregon Supreme Court opinion deepens the significant split among the state courts that have considered this recurring issue of federal constitutional law....

Second, the Oregon Supreme Court’s holding is an unwarranted extension of Apprendi and Blakely beyond what this Court’s reasoning supports.  This Court has explained the Apprendi rule as a non-subjective means for determining the elements of an offense.  By extending the jury-trial requirement to establishing how otherwise-lawful sentences are served, the Oregon Supreme Court has gone well beyond the due-process concerns that require states to prove each element of an offense to a jury beyond a reasonable doubt.

Download ice_pet. for Cert.pdf

February 13, 2008 at 05:37 PM | Permalink

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