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  #1  
Old 10-11-2010, 02:40 PM
Paralegal USA Paralegal USA is offline
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Default Unconstitutional Sentencing Enhancements – Important Information

Beginning with Apprendi v. New Jersey, the U.S. Supreme Court held that the Sixth Amendment right to a jury trial, incorporated against the states through the Fourteenth Amendment, prohibited judges from enhancing criminal sentences beyond statutory maximums based on facts other than prior convictions must be decided by the jury upon proof beyond a reasonable doubt, unless admitted to by the defendant The high Court’s subsequent decisions inRing v. Arizona and Blakely v. Washington held similarly.

Earlier this year the Second Circuit Court of Appeals decided Besser v. Walsh in which it held that the State of New York’s persistent felony offender statute was unconstitutional in that it allowed a judge to consider, in addition to prior felony convictions, “the history and character of the defendant and the nature of his criminal conduct” when determining whether “extended incarceration and life-time supervision will best serve the public interest.”

Several other states I am aware of also allow a judge, as opposed to a jury, to consider factors other than prior criminal history when determining whether or not to impose a sentence that exceeds the statutory maximum prescribed for the offense committed. The recent Besser decision has breathed new life into the Apprendi/Ring/Blakely rulings. In fact, post-conviction attorneys in several states are now taking cases challenging their respective states’ enhanced sentencing laws.

If your state allows a judge to consider anything other than prior criminal convictions in the course of imposing enhanced sentence, encouraged would be to retain knowledgeable counsel for purposes of attacking your loved one’s sentence.
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  #2  
Old 10-12-2010, 05:22 PM
LAKitty65 LAKitty65 is offline
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I agree with you on these cases. But, as I understand there are only two states in this nation that allow these cases when it comes to appealing "sentencing." I live in Oregon and I do not believe they acknowledge these case on appeals - or take them into consideration at sentencing.

We need to keep fighting it - I agree.

My daughter took a HUGE upward departure on her sentence - out of fear of going to trial. No priors, straight A college student, worked, etc. Good kid. She should never have been charged with anything BUT the charge should have held 3 years "release" - the judge and the DA gave her 70 months. She got royally screwed!!!

I think every state should start challenging sentences per these cases that you have sited.

It's just sick and disgusting what they "system" is doing to our youth.
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  #3  
Old 10-12-2010, 09:01 PM
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My brother was given a lifetime of SR for a possession of cp felony conviction. Are you saying he could get this changed w a post conviction attorney?
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  #4  
Old 10-12-2010, 09:25 PM
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No. Sex offender registration is not part of the criminal sentence, it is an administrative or civil consequence of the conviction. Therefore, these cases that are being discussed do not apply to sex offender registration.

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My brother was given a lifetime of SR for a possession of cp felony conviction. Are you saying he could get this changed w a post conviction attorney?
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  #5  
Old 10-17-2010, 05:13 AM
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Default Colorado Lawyer question..

Im new to prison talk so not sure if this will be posted correctly or to the right person @ Colorado Lawyer.

My BF is @ Wasco in CA. He was sentenced to 13 yrs to life. The thing is, he has a prior the judge used to extend his sentence..however, the prior was not proven and the PROSECUTOR only used 3 elements to his prior instead of 9, the judged agreed and added on 5 yrs. He has served now 17 yrs in Mar.

For a little history, he was my high school sweetheart..and his younger brother found me after 22 yrs.. so ur relationship just pick up from where it left off. Its very unfortunate to me he is there.

Lastly, to his case..he was charged with ATTEMPT and ROBBERY. but when a GSR was taken for gun powered..it was positive in the small of his left palm. He is RIGHT HANDED. This can not be possible he shot anyone. He did however take the gun from the shooter after being forced to go with the shooter by gun point. Is there a chance for his case.. 1) to get the priors dropped and 2) released. Parole Board hearing is in Mar 2011. HELP!!!
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  #6  
Old 10-23-2010, 04:02 PM
Paralegal USA Paralegal USA is offline
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Default Besser v. Walsh overturned under Portalatin v. Graham

Recent decision attached to Post #15 at http://www.prisontalk.com/forums/sho...d.php?t=474234
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  #7  
Old 01-22-2011, 12:30 AM
ash99 ash99 is offline
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Default what does it mean?

My b/f has a few past convictions for pcs and did time and completed his parole successfully.
Now he was arrested and charged with another pcs and also a firearm by a felon. what does all these charges and convictions on his record mean for his freedom?
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Old 01-25-2011, 04:12 PM
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true, iv hv questions as well for tx law & how this will effect him. has prior from the 80's, new charge 2010, felony. DA already has enhanced charge, what can we do. how will this law help him.
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  #9  
Old 05-02-2011, 01:24 PM
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Quote:
Originally Posted by ash99 View Post
My b/f has a few past convictions for pcs and did time and completed his parole successfully.
Now he was arrested and charged with another pcs and also a firearm by a felon. what does all these charges and convictions on his record mean for his freedom?
My Fiancée had the same sort of issue. His sentence was only 3 years 8 months.... but he got a 10 year enhancement for felon with a weapon.... even tho he never used it!

Thank God he is on 50%... 5 down and a little less than 2 to go, but would be nice to have him home sooner!
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Old 05-31-2011, 12:05 AM
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Just to note the enhancement was for the weapon and the fact that he had a prior...non violent mind you offense.
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  #11  
Old 06-06-2011, 10:18 PM
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Hello...) I just wanted to know is anyone familiar with doing a 440.10? I have been looking for an atty...way too expensive...only need help with the actual paperwork...any suggestions would be so appreciated!
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Old 11-24-2011, 01:14 AM
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Quote:
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Hello...) I just wanted to know is anyone familiar with doing a 440.10? I have been looking for an atty...way too expensive...only need help with the actual paperwork...any suggestions would be so appreciated!
Good place to start would be in your local law library at the courthouse or law school. There is a reference book for forms and law called "Trawicks". Also most law librarys these days have online help thru something called "West Law". It's fairly easy to use and could point you in the right direction, site statutes or use a law dictionary. Hope this helps. I'm just the average Joe like you.
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  #13  
Old 11-25-2011, 05:52 AM
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I hope this turns out to help some inmates in California where we have three strikes,enhancements galore and once in prison,the issue of so many people now being validated as gang members or associates and maxing out in shu.
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  #14  
Old 12-06-2011, 12:25 AM
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Default Consecative vs. Concurrent ?????

My Husband was arrested by the state, shortly after he was picked up by the fed's. He got sentenced with by the feds first, then the state wanted him back, once he came back to the state he accepted a plea deal. his sentencing is February 3rd, 2011. Once he is sentenced will he go back to the feds??? And who has Jurisdiction over him?? Also the state said that they want the time consecutive, but for obvious reasons we are hoping its concurrent, how can we make sure we get concurrent? Does anyone have any experience in this dilema. please help.
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Old 12-12-2011, 06:52 AM
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I prevously worked on a case regarding a similar issue. (I am an attorney in St. Petersburg, Florida.) Any way, there are 2 issues -- i.e. having the sentences run concurrently and structuring the sentence in a manner where he will serve the state and federal sentences in the proper jurisdiction. The first matter is simple -- it is always best to have the sentences run concurrently (at the same time). The next matter is more difficult. (the Federal Bureau of Prisons) has specific rules that set forth the procedure for determing where an inmate will serve his prison sentences when he/she has been sentenced to prison in state court and federal court. I do not have the rules in front of me so I don't want to misadvise you about this. However, I can cite a Florida appellate case that addresses some of the problems that arise re. federal and state prison sentences. See Sadler v. State, DCA Case No. 5D08-331, 33 Fla. Law Weekly D1164 (Fla. 5th DCA April 25, 2008). You can google this case and locate it there. You can also locate it on the 5th District Court of Appeal's webite at flcourts.org
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Old 12-12-2011, 09:28 AM
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know what i got speek on this one if you want what should be called a unconstitutional sentence how bout life without mantory to be served out in solitary that should be out right a unconstitutional sentence but sadly it has ben done more then ones thats the part that should make you go shiver doun spine feeling and i not talking useing sams to do that but even if use sams that should never be aloud to be given that is what i call a cruel and unconstitutional sentence god help those who have ben given such a sentence now i may not be for the death pentaly but for meny death would be mercy if that sentence was what the judge was going to give you other wise let us not forget those who pray as i do may thare be light in the darknes of justice
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Old 12-20-2011, 10:52 PM
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I was sentenced in 1994 to 66 months in the state of oregon and have 180 months of post prison supervision. I am nearing the end of my court ordered 180 months of post prison supervision, and was informed that the board of parole has taken my earned good time and added it to my post prison supervision time. in a nut shell they are taking away whaat i have earned and keeping me in the system for a extra 19 months ?????????????????? Can anybody help enlighten me on the legality of this action from the board.???????????????
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Old 01-08-2012, 04:42 AM
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The 14th amendment clearly says based on facts not on previous convictions. The system is so corrupt. They're going against the constitution & the peoples amendments. We seriously need to do something against the court system.
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Old 02-22-2012, 03:19 PM
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i am looking for a attorney that specializes in LIFER WO/PAROLE..they already exhausted all appeals.. anyone please help!
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Old 01-01-2013, 05:50 PM
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Quote:
Originally Posted by Colorado_Lawyer View Post
No. Sex offender registration is not part of the criminal sentence, it is an administrative or civil consequence of the conviction. Therefore, these cases that are being discussed do not apply to sex offender registration.
In Michigan the laws may be different, but what if sex offender registration wasn't being implemented at the time a person is convicted of CSC3 and sentenced to 10 to 15 years?....The person does 9 of his 10 year minimum sentence and is paroled but is made to become part of the registry? Is that legal?
Also, this same person did a couple years prior to this sentence for another felony in a different state giving him two felonies on his record as of April, 2012 when (after being 100% offense free and a model citizen for just a couple months shy of 10 years) he was unintentionally late verifying his 3-years-unchanged-address for the first time ever since being paroled. He was late by only 17 days and went in to register on his own upon realizing his error. The court decided to go back to his two prior offenses that were almost twenty years old to convict him as a habitual offender for his failure to comply charge just so they could give him triple the sentence he would've gotten. Is it legal for the court to go back that far to include old offenses when a person works so hard to reform and his address hadn't even changed since he had verified it only 2 months before?

Last edited by CrazyGirl12; 01-01-2013 at 05:52 PM.. Reason: Realized Lawyer was from Colorado and laws may be different in Michigan
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Old 01-10-2013, 06:13 PM
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In Michigan, the judge also consider prior charges as being proof of crimes during sentencing. My son was charged with a crime that was thrown out by the judge, who stated very clearly that no crime was committed and no charges should have ever been filed. Imagine our surprise when the judge used that prior charge from an unrelated case to add time to his sentence, when per the other judge no crime had been committed!!!

MDOC and the parole board also treat the prior charge as a conviction. What the heck??? Apparently once you're convicted of something, they don't have to prove you guilty of other things to enhance the sentence.

So does this new Supreme Court decision apply to Michigan's sentencing guidelines?
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Old 01-25-2013, 11:07 AM
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Exclamation Un-Balanced sentencing

If the charge is reckless murder and the offender has no priors and the charge carries a sentence of 2 to 20 years, how does a person get 22 years and a Class A Felony? What can be done to correct this obvious wrong?
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Old 01-25-2013, 10:05 PM
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I don't understand how they can make an enhancement "using a computer" when it is a computer crime. Duh, that was the crime. Ridiculous. Also, they say if you don't plea, they can give 30 years. If you plea you can't appeal even if the judge makes mistakes at sentencing! Something has to change.
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Old 01-29-2013, 09:40 PM
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Quote:
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I don't understand how they can make an enhancement "using a computer" when it is a computer crime. Duh, that was the crime. Ridiculous. Also, they say if you don't plea, they can give 30 years. If you plea you can't appeal even if the judge makes mistakes at sentencing! Something has to change.
You are right: something has to change. You ask good questions and there are no good answers...YET. Someday, things will change but I'd bet that day is a long ways off. PM me if you ever just need to chat. I share your frustration.
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Old 04-03-2013, 02:02 AM
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Quote:
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My brother was given a lifetime of SR for a possession of cp felony conviction. Are you saying he could get this changed w a post conviction attorney?

what is apost conv.attny
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