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July 15, 2004

Coast to Coast Blakely developments in the states

In addition to the decision by the California Supreme Court to tackle Blakely in a pending appeal, Blakely issues are start to crop up in other state appellate decisions around the country. Here are two interesting examples.

Florida: In the (hard to follow) case of Sigler v. Florida, 2004 Fla. App. LEXIS 10485 (4th Dist. July 14, 2004), a Florida intermediate appellate court explained that, before Apprendi and Blakely, the "Florida Supreme Court [had] construed [Florida code] section 924.34 to authorize appellate judges to make a finding of guilt as to each element of permissive lesser included offenses in place of a jury determination. See I.T. v. State, 694 So. 2d 720 (Fla. 1997)." The Sigler court then explains its view that:

[T]hese later decisions [of Apprendi and Blakely] make it clear beyond any doubt that section 924.34 as interpreted in I.T. is contrary to the Sixth Amendment when the previous jury determination cannot be deemed to have necessarily found defendant guilty as to every element of the permissive lesser included offense. That means that as for this circumstance we are expressly holding the statute invalid under the United States Constitution.
In other words, the Sigler court is finding a Sixth Amendment limit on appellate judge fact-finding as well as sentencing judge fact-finding.

Tennessee: Meanwhile, in Tennessee v. Fuller, 2004 Tenn. Crim. App. LEXIS 626 (July 13, 2004), the court frankly asserts that the "United States Supreme Court's recent opinion in Blakely v. Washington, 2004 U.S. LEXIS 4573 (2004), calls into question the continuing validity of our current sentencing scheme." Though the Fuller court then avoids finding a Blakely problem in the case at hand, it still seems noteworthy that the Tennessee courts already see problems with its sentencing schemes in light of Blakely.

July 15, 2004 at 12:39 AM | Permalink


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The Florida case touches (albeit obliquely) on an aspect of the Sixth Amendment right that I think remains open after Apprendi and Blakely: does a system where the trial judge has vast discretion to sentence within the statutory minimum and maximum but appellate courts are not required to give much (or any) deference to sentences outside of "nonbinding" guidelines violate the 6th Amendment? I am inclined to think that such a system violates the spirit of the right but that, as a matter of prediction, the Court would likely uphold such a scheme. If such a scheme has even a fair chance of passing constiutional muster, I'd be surprised if it doesn't get serious consideration when Congress and/or the Commission get around to fixing the federal system.

Posted by: Andy | Jul 15, 2004 8:38:23 AM

check out the fulsome, self-important Sr. Judge Milton I. Shadur, northern district of illinois, eastern division, rejecting retroactive application of Blakely, Andrew Traeger case; reported in the Chicago Daily Law Bulletin, July 13.

Posted by: brenda | Jul 15, 2004 8:47:34 PM

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Posted by: laptop battery | Oct 14, 2008 5:22:55 AM

I am inclined to think that such a system violates the spirit of the right but that, as a matter of prediction, the Court would likely uphold such a scheme.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 12:16:01 AM

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