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August 1, 2007

Michigan Supreme Court finds ways to keep dodging Blakely

I have been remiss in not previously noting two major Michigan Supreme Court rulings on Blakely from late last week (with thanks a number of readers for the head's up).  Here are cites/links to the two big rulings:

As one reader noted to me, "each runs over 80 pages, including dissenting opinion."  A quick scan lead me to the conclusion that a majority of the Michigan Supreme Court (like many justices on other state supreme courts) remain eager to keep Blakely from upsetting the current state sentencing apple cart.  It remains to be seen whether federal judges considering these matters in habeas cases will share this instinct.

I highly encourage readers with knowledge of Michigan law and practice to help me understand who is getting the best of the arguments in these cases.

August 1, 2007 at 05:12 PM | Permalink


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I am told that many appellate prosecutors in Michigan feel that the Michigan sentencing guidelines cannot withstand scrutiny under Blakely in the federal courts. The ultimate underlying rationale for holding Blakely inapplicable to the Michigan guidelines seems to be that Michigan is an indeterminate-sentencing state. The guidelines prescribe whether the defendant goes to prison or not, and, if imprisoned, require the judge to pick a minimum within the prescribed guideline range. The inmate cannot be paroled until serving that minimum. If not paroled then, the inmate continues to serve the sentence until later paroled, or until serving the maximum sentence. If sentenced as a first offender, that maximum is fixed by statute, and cannot be altered by the judge. If convicted as an habitual offender, with one or more prior felony convictions, the judge can fix the maximum, within an increased range, at a longer term than that fixed by statute for first offenders. For example, someone convicted, as a first offender, of breaking and entering a dwelling with intent to commit larceny, a 15-year felony, might have a minimum guideline range of 12-24 months, with prison a possible sentence, but not required. If sent to prison, the sentence might be two to 15 years, but the minimum could not be longer than two years. The anti-Blakely theory is that, as the maximum is fixed by law, Blakely is not implicated. I think that's nonsense, but I've been making, and losing, the argument that Blakely applies to the Michigan guidelines since July, 2004, and made, and lost, similar arguments on the basis of Apprendi since it was decided.

Posted by: Greg Jones | Aug 2, 2007 11:18:33 AM

GPS tracking systems are only a small part of what it takes to keep our children safe from sexual predators. First of all, legislators need to ensure that these sex offenders cannot reside anywhere near children. Police need to spend less time hiding with their radar guns to give speeding tickets and more time monitoring areas where sex offenders reside. GPS tracking bracelets are a must! The people monitoring GPS trackers most be competent and knowledgeable.

Cutting funds to monitor sex offenders can in now way help our children

Posted by: jordan shoes 1 | Nov 29, 2010 3:07:43 AM

Mr. Jones...in my case, MSC#134774, COA#278462, i argued that the court violated Blakely when i received a 15-48 month prison sentence when my guidelines were scored 0-9 months, which calls for a determinate jail sentence...to no avail and no leave granted. I ended up doing 44 months on the porn charge, but the judge's substantial and compelling reasons to send me to prison were not found by a jury, nor admitted by me. He decided on his own determination that i committed numerous crimes against a person in a cyberstalking allegation, unrelated to the porn charge. The porn charge dealt with ONE video originating from the internet and I recently affirmed the female in the video was 18 years old at the time it was recorded.

Posted by: Rob | Jun 5, 2012 7:16:43 PM

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