Another possible Blakely front and great dicta

Though not formally a Blakely case, the South Carolina Supreme Court in a decision last week was apparently influenced by Blakely when considering an intricate issue of appellate procedure. In State v. Brown, 2004 WL 1948696 (S.C. Aug. 30, 2004), the Court was considering whether and when an appellate court, after reversing a conviction due to lack of evidence on one element of the offense, should be able to remand the case for entry of judgment and sentencing on a lesser included offense. The Brown court provides an extended and quite interesting discussion of the appropriateness of so-called "sentencing remands," and it notes along the way that "[n]umerous state and federal courts have approved of the practice of a sentencing remand in appropriate circumstances."

The court in Brown ultimately concludes that when a conviction is reversed due to insufficient evidence, a court should consider remanding a case for sentencing on a lesser included offense only in very limited circumstances, and along the way the court cites Apprendi, Ring, and Blakely in support of its ruling. In so doing, the court drops this choice footnote:

We recognize the vigorous debate, as expressed in Apprendi, Ring, and Blakely, between those justices who believe our people's traditional belief in right of trial by jury is in perilous decline due to the accelerating propensity of both state and federal legislatures to adopt 'sentencing factors' determined by judges that increase the punishment beyond what is authorized by the jury's verdict, Ring, 536 U.S. at 611- 612 (Scalia, J., concurring), and those who believe Apprendi and its progeny portend disastrous practical consequences for state and federal sentencing guideline schemes developed during the past two decades through the collective experience and wisdom of the judicial, legislative, and executive branches of government. Blakely, 124 S.Ct. at 2543-2561 (O'Connor, Kennedy, and Breyer, JJ., dissenting separately). The present view of the majority of the Supreme Court regarding the crucial role of the jury in determining facts relating to elements of the crime and facts which may result in increased punishment, other than the fact of a prior conviction, undoubtedly lends support to our resolution of this case.