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December 28, 2004

More Blakely state reports

With many thanks to the many FOBs ("friends of blog") sending in reports, I can follow up this morning's state Blakely round-up with some additional interesting state reporting.  The states of note this afternoon are Minnesota, Ohio and Washington.

MINNESOTA: The news from comes in the form of two decisions from Minnesota Court of Appeals.  In State v. Hagen, C0-02-1318 (Minn. App. Dec. 28, 2004), the court clarifies that an "upward durational departure under the Minnesota Sentencing Guidelines may not be based on an "admission" by the defendant, under Blakely v. Washington, 124 S. Ct. 2531 (2004), unless the "admission" to an aggravating factor is accompanied by the defendant's waiver of his or her right to a jury trial on the aggravating factor."  In State v. Brooks, A03-2050 (Minn. App. Dec. 28, 2004), the court concluded that Blakely did "does not require that a jury find, or a defendant admit, the existence of a custody status point" because (according to the court) assignment of those points are like a prior conviction.

OHIO: The report here is a third-hand account from an Ohio lawyer "that Ohio Supreme Court Chief Justice Moyer, at a training for new judges, said that the Ohio Supreme Court was taking Blakely 'VERY seriously.'"  This is great news because, as noted in a number of previous posts (examples here and here and here and here), the story of Blakely in Ohio is very serious.

WASHINGTON: The report from Blakely's home state is that a group a committee of prosecutors and criminal defense lawyers have a proposal in the works for the Washington legislature when it reconvenes next month which would involve the "Blakely-ization" of Washington's guideline scheme by providing for aggravating facts, other than the fact of a prior conviction, to be placed before the jury.

December 28, 2004 at 06:42 PM | Permalink


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I have a nephew that is in prison for drugs.
He was given 14.5 years but he thinks if the
sentencing guidelines change(Blakely/Washington) in Circuit 5, he would be able to file a 2255
motion and get his time reduced.
Is this true and would you be able to keep
me informed of this here in Texas? I would
appreciate any help and so would he. He is
wanting to get his time behind him and start
over again. Thanks....

Posted by: F. Tatum | Dec 29, 2004 2:46:43 PM

I was convicted in Colorado in 1994 for DUI Vehicular Homicide which carried a 4-12 yr sentence range. Under the sentencing law is a clause which states if the judge finds any extraordinary mitigating or aggravating circumstanses he may go as low as 1/2 the minimum or as high as twice the maximum. My judge found since I had a driving while impaired 8yrs earlier & that the current offense also involved alcohol, those were extraordinary aggravating factors & gave me a 24yr prison sentence. I'm out on an ankle bracelet now after serving 12yrs w/ good time but still am serving this sentence. Do you think I have any legal arguement against my sentence under Blakely. I was convicted by a jury but the aggravating factors were never presented to the jury. Thanks for you time.

Posted by: JEFF MCKENZIE | Dec 30, 2004 9:45:44 PM

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