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October 20, 2004

Covering Blakely in the states

As suggested here, the number of state rulings on Blakely continues to grow. In just two days this week, there has already been nearly a dozen Blakely decisions, and the pace of the rulings now entails that I cannot hope to provide comprehensive coverage of all the state court action. (Amazingly, the First District Appellate Project seems to be keeping up with all the Blakely court action in California here.)

I will try to continue to spotlight state cases of particular importance or interest, and I encourage readers to help me find this cases. I have recently found two such noteworthy state cases decided late last week: State ex rel. Smith v. Conn, 2004 Ariz. App. LEXIS 149 (Ariz. App. Oct. 14, 2004) and State v. White, 2004 Tenn. Crim. App. LEXIS 901 (Tenn. Crim. App. Oct. 15, 2004).

In Conn, the state prevailed on a challenge to a trial court's order denying the state's motion to add an allegation of aggravating factors to the indictment and request for jury trial. The court explained:

We disagree with the trial court's conclusion that A.R.S. § 13-702(B) is invalid after Blakely. That A.R.S. § 13-702(B) requires a trial judge to find aggravating factors does not mean that, post-Blakely, juries cannot do so without a legislative change to the statute.

There is nothing in the plain language of A.R.S. § 13-702(B) that prohibits a trial court from submitting aggravating factors to the jury. Moreover, nothing in A.R.S. § 13-702(B) prevents a jury from finding aggravating factors. Once a jury finds an aggravating factor, Blakely is satisfied, and A.R.S. § 13-702(B) allows a trial judge to impose an aggravated sentence after consideration of the factors enumerated in A.R.S. § 13-702.

In White, the court addressed a range of Blakely issues under Tennessee law (which itself triggered a partial dissent). But most intriguing were these comments about Blakely and restitution:

Our final inquiry is whether any order of restitution in this case is subject to the dictates of the recent United States Supreme Court's decision in Blakely .... The Blakely Court did not speak in narrow terms that targeted merely the length of an accused's sentence; rather, the Court spoke in broader terms of the power to punish....

Existing Tennessee case law expressly recognizes, "The purpose of restitution is not only to compensate the victim but also to punish and rehabilitate the guilty." Restitution has also been described as "an important tool in the punishment of criminals. " More particularly, restitution has been regarded as "a part of the sentencing scheme and in the nature of a penalty for crime," which is not affected by the victim releasing the offender from civil liability.

Tennessee's view of restitution ostensibly conflicts with the prevailing view in two federal circuits, ... but it is consistent with the approach taken in two other federal circuits.... Regardless whether restitution qualifies as punishment, however, we believe that a judicial finding of an amount of restitution does not run afoul of the Due Process or Sixth Amendment guarantees as interpreted in Blakely. Blakely and its progenitor, Apprendi v. New Jersey, 530 U.S. 466 (2000), specifically targeted increased penalties for crimes beyond the prescribed statutory maximum without submission to a jury or admission by a defendant. Neither Code section 40-20-116 nor section 40-35-304 embraces a "statutory maximum" that could be increased by a given finding; that is to say, neither statute specifies a maximum amount of restitution that may be ordered. Accordingly, nothing in Blakely appears to reach our restitution scheme or the particular restitution order entered in this case.

October 20, 2004 at 02:23 AM | Permalink


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