Tennessee Supreme Court denies rehearing in Gomez (but legislative fix still in works)!

As detailed here, last month 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.   Yet, despite the fact that every litigant involved in the case, including the Tennessee Attorney General, petitioned for rehearing in Gomez (see details here and here), today the Tennessee Supreme Court stuck to its guns and denied rehearing.

In its order rejecting rehearing, which can be downloaded below, a majority of the Tennessee Supreme Court asserts:

We remain convinced that Blakely must be read in light of Booker.... The Court harmonized the Federal Sentencing Guidelines with the Sixth Amendment by applying in Booker a remedy which created a discretionary sentencing scheme. We are not persuaded that the differences between the [Tennessee] Reform Act and the post-Booker Federal Sentencing Guidelines are constitutionally significant. If the Sixth Amendment countenances a sentencing scheme that permits judges to find facts relevant to sentencing and affords judges discretion to select a sentence anywhere within a statutory range, even in the absence of enhancing facts, we are unable to conclude that the Sixth Amendment forbids a sentencing scheme in which a state legislature limits judicial discretion by designating the presumptive sentence that must be imposed when a judge finds no enhancement or mitigating factors.

Of course, at issue in Blakely was Washington's sentencing scheme which limited "judicial discretion by designating the presumptive [sentencing range from which a sentence] must be imposed when a judge finds no enhancement or mitigating factors," and that scheme was found to violate the Sixth Amendment when a judge finds facts to go above that presumptive range.  In other words, unless Booker essentially overruled a key tenet of Blakely (and footnote 8 which speaks directly to this matter), Gomez still stands on very shaky ground (as detailed more fully here).

Interestingly, David Raybin, who has been integrally involved in many Tennessee Blakely developments, detailed in an e-mail to me that there is even more to the Tennessee Blakely story because of legislative developments:

The Tennessee Senate and House passed the Task Force-recommended-Booker-style, Blakely fix legislation today and it is on its way to the Governor's desk. Given that the legislation was proposed by the Governor's office, it should be signed by Memorial Day. It takes effect immediately upon the Governor's signature. I have drafted an article on the new legislation for the Tennessee Bar Association Journal [which can be downloaded below].

On the same day that the fix passed the legislature, the Tennessee Supreme Court releases its order on the collective petitions to rehear filled by all parties and the Amicus (whom I represent).  As for the Opinion itself, my first comment was: "res ipsa loquitur" (And for those who are not up on their Latin: "the thing speaks for itself"). I suggest that the old Tennessee pre-fix statute will not survive first contact with a federal court.  More to the point: who will defend it, given that even the Attorney General believes it is flawed. Astounding.

Download gomez_petition_to_rehear_denied_51805.pdf

Download draft_raybin_2005_blakelyfix_tba_article.pdf