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April 20, 2005

The Tennessee waltz regains its footing by grasping a pikestaff

As detailed here, last Friday the Tennessee Supreme Court in Gomez found Blakely inapplicable to Tennessee's sentencing scheme.  However, as detailed here, that ruling seemed to rest on a complete misunderstanding of Apprendi and Blakely.

Today I received from David Raybin, who has been integrally involved in many Tennessee Blakely developments, the following e-mail about Gomez and subsequent developments:

The Tennessee Waltz Regains its Footing by Grasping a Pikestaff

Until last week everyone assumed the Tennessee presumptive sentencing scheme violated Blakely, so much so that the governor appointed a commission which recommended a Booker-like advisory sentence fix.  Even the Attorney General agreed that the current law was flawed.  To the astonishment of all, the Tennessee Supreme Court upheld the constitutionality of the Tennessee sentencing guidelines in State v. Gomez. The majority of the Supreme Court held that, notwithstanding a mandatory, presumptive sentence the discretionary enhancement factors somehow made the statute "advisory" and thus allegedly constitutional.  To his credit the Attorney General filed an immediate petition to rehear saying "it is as plain as a pikestaff that a Tennessee judge has no authority to impose a sentence above the presumptive minimum -- the sentence authorized by the jury verdict alone -- unless an enhancement factor is found." The remainder of the petition [which can be downloaded below] attempts to convince the Court to reconsider the Sixth Amendment issue on now-familiar Blakely grounds.

I have been in contact with the defense attorneys who are also filing petitions to rehear but are adding arguments about the "plain error" issue because the Sixth Amendment issue was not raised at trial which occurred well before Blakely was decided.  I am drafting an Amicus petition for on behalf of the defense bar on both Sixth Amendment and "plain error" issues.

The jurisprudence of this affair is astounding; everyone is scratching their heads as to how the Tennessee Supreme Court could have missed the mark by so much given that it was the virtually unanimous view of the Bench and Bar that our statute was clearly unconstitutional.  Some lawyers scoffed that this ruling was an embarrassment the likes of which Tennessee had not seen since the Scopes monkey trial spectacle.  I pointed out to these wags that the Tennessee Supreme Court had saved the day in Scopes' case by holding that the Tennessee constitution provided that only a jury can impose a fine of more than $50. Since the judge imposed the fine (of $100) the conviction was found to be void, Scopes was free, his case was never retried, and the honor of our State restored. 

Gomez represents another sentencing question concerning the proper role of the jury and the judge.  The petitions to rehear will give the Tennessee Supreme Court the opportunity to "get it right" this time.  I am convinced they will reverse themselves given that the Attorney General stepped up again to point out the error of their ways which is as "plain as a pikestaff." A companion political issue concerns the still-pending legislative fix.  The jury is still out on that one given that the Tennessee Supreme Court said the Tennessee law is not broken.  The dance continues.  David Raybin

Download gomez_tenn_states_petition_to_rehear.pdf

UPDATE: Michael Ausbrook over at INCourts has this terrific post which develops a number of the story-lines which surround Gomez and Blakely developments in other states.  Michael's post rightly lauds the Tennessee AG for its willingness to concede Blakely's applicability Tennessee's sentencing system, and it also spotlights the loose language from Justice Stevens' opinion for the Court in Booker that is sowing confusion about Blakely's reach.

April 20, 2005 at 08:46 PM | Permalink


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