The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court. <

Willie Earl Luton v. State of Florida

SC06-1800

PLEAS RISE,,
>> GOOD MORNING GOOD MORNING.
SUPREME COURT, PLEASE BE SEAT$$
SEATED.,,
GOOD MORNING THE NEXT CASE ON
OUR CALENDAR THIS MORNING IS
LUTON LUTOP VERSUS STATE OF IN
ORDER.
>> THAT YOU YOUR HONOR MAIRPT
ANTHONY PLUSTO ON BEHALF OF
WILLIE LUTON RULE 3.8 --
MOTION CAN BE USED TO CORRECT
ANY TYPE OF SENTENCING ERROR.
THOSE ARE THE WORDS OF THIS
COURT.
WORDS OF THIS COURT, IN THE IN
AN CREATED THAT RULE, AND OVER
THE YEARS, THE EIGHT YEARS,
SINCE YOUR HONOR -- THIS RULE
WHOSE NEVER BEEN AMENDED IN
ANY WAY TO RESTRICT THE TYPE
OF SENTENCING ERRORS THAT CAN
BE CONSIDERED.
>> BUT DO YOU AGREE, THAT AT
THE TIME WE CAME UP WITH THE
RULE WE WERE REALLY THINKING
OF ERRORS, THAT OCCURRED IN
THE SENTENCING PROCESS,
BECAUSE THOSE WERE THE ONES
THAT WERE REALLY BOTHERSOME
FOR THE APPELLATE COURT.
>> I THINK THAT WAS CERTAINLY
A KEY CONSIDERATION, BUT THIS
COURT TOOK PAINS TO TALK ABOUT
HOW DIFFERENT ERRORS HAD BEEN
TREATED DIFFERENTLY, AND THEN
CAME TO THE CONCLUSION THAT WE
ARE DOING THIS TO PRESERVE ANY
TYPE OF SENTENCING ERROR, AND
ELSEWHERE IN THE APPROXIMATE
POSITIVE.
>> DID HAVE TO DO WITH
ANYTHING THAT OCCURRED DURING
THE TRIAL PROCEED WHEN WE
REVIEWED ALL THOSE ERRORS?
>> WELL, I DON'T KNOW THAT IT
OCCURRED DURING THE TRIAL
PROCESS, BUT I SUBMIT TO YOU,
THAT WHAT HAPPENED HERE DIDN'T
OCCUR DURING THE TRIAL PROCESS
EITHER.
>> BUT YOU ARE ASKING FOR
SOMETHING THAT WOULD SAY THAT
SOMETHING THAT A -- A FINDING
THAT NEEDED TO BE MADE DURING
THE GUILT CAUSE OF THE CASE.
>> I'M SORRY THAT WHAT NEEDS.
>> DURING THE THAT IS THAT
THERE NEEDED TO BE A JURY
FINDING OF SOMETHING DURING
THE GUILT PHASE THAT AFFECTED
THE SENTENCE.
>> NOT NECESSARILY, IT COULD
HAVE BEEN DONE THAT WAY OR IT
CONBE DECENT BIFURCATED
PROCEDURE SIMILAR TO CAPITAL
CASE THE IT PROCEDURE STATE
SUGGESTION IN BRIEF THE TO ME
THAT IS AN IMPORTANT POINTED
THAT YOU ARE MAKING, BECAUSE
WE HAD A CASE,$$ --
>> GEL INDEZ, THE DEFENSE
ATTORNEY IN THAT CASE SAID
DOUBLE JEOPARDY WOULD PROHIBIT
A JURY FROM NOW BEING
IMPANELED$$
IMPANELED, BECAUSE THE JURY
HAD ALREADY DETERMINED, GUILT,
NOW, I DISAGREE WITH THAT,
BECAUSE THE ARGUMENT WAS THAT
THE JURY HAD NOT DETERMINED
THAT SENTENCING ISSUE, AND
THEREFORE DOUBLE JEOPARDY
COULD NOT APPLY.
BUT YOU CONCEDE THAT A
POSTCONVICTION JURY O "-- JURY
SENTENCING JURY COULD BE
ENPANELED TO DETERMINE THOSE
SENTENCING ISSUES.
>> I WOULD AGREE, THAT IT
COULD BE IMPANELED FOR THE
VERY REASONS THAT IS IN YOUR O
CONCURRING OPINION I WOULD
ALSO POINT OUT IT DOESN'T
NECESSARILY HAVE TO BE UNDER
THE FACTS OF THIS CASE, AND
UNDER THE FACTS OF THIS ISSUE.
FOR TWO REASONS, FIRST OF ALL,
YOU CAN TAKE THE SAME JURY AND
THEN JUST MOVP TO A SECOND
PHASE, LIKE YOU DO IN A
CAPITAL CASE, THAT IS NUMBER
ONE, NUMBER TWO, DEPENDING ON
HOW THIS COURT DEALS WITH THE
MERITS OF THIS CLAIM, AND I'M
GOING TO OF COURSE TAKE THE
POSITION THAT ALL THE FACTORS
YOU -- REQUIRED IN HABITUAL
VIOLENT OFFENDER STATUE HAVE
TO BE PROVEN TO JURY ONE
STANDS OUT THE LENGTH OF TIME,
IF YOU FIND IT IS JUST THE
LENGTH OF TIME, BETWEEN THE
PRIOR CONVICTION, AND THE
CURRENT CONVICTION, THAT COULD
BE DONE BY CHECKOFF BOX ON THE
VERDICT TOMORROW.
-- FORM.
>> WHERE DOES THE HARMLESS
ERROR, ISSUE COME INTO PLAY,
BECAUSE WE ALSO HELD THAT IF
BLAKELY ERROR CAN BE HARMLESS,
SO IF THAT IS THE CASE, WHY
COULD YOU RAISE IT ON A 3800
B, UNTIL THE THIRD DCWHATEVER
DCA TERMS THAT -- DETERMINED
THE ERROR WAS HARM FULL THAT
IT NOW WOULD REQUIRE, A JURY
SENTENCING$$
SENTENCING?
>> WELL, I WOULD SUGGEST, THAT
IN ORDER TO REACH THE QUESTION
OF HARMLESS ERROR INHERENT IN
HARMLESS ERROR IS THAT THERE
IS ERROR.
IT IS A TYPE OF ERROR.
THEREFORE$$
THEREFORE, IN ORDINARY TO GET
TO THAT POINT YOU HAVE TO
CONCLUDE FIRST OF ALL THAT IT
HAS BEEN PRESERVED, AND SECOND
OF ALL THAT IT IS ERROR, SO IF
WE GET TO THE POINT HARMLESS
ERROR, THEN WE HAVE ALREADY
ESTABLISHED THOSE TWO, AND
INHERENT IN BLASHING THOSE
THAT IT WAS PROPERLY HE
PRESERVEED IN 3.800 MOTION.
>> ASSUME FOR THE MOMENT COULD
YOU RAISE IT ON 3800 BMOTION
WOULD YOU FILE THAT MOTION
BEFORE THE JUDGE -- CORRECT.
>> COULD THE JUDGE DEN --
DETERMINE WELL YES WERE YOU
ENTITLED TO THIS, BUT I FIND
IT HARMLESS, BECAUSE THE
EVIDENCE WAS OVERWHELMING A
JURY WOULD HAVE FOUND THAT --
>> WELL, I THINK, UNDER THIS $$
COURT'S IN ANY GEL INZEZ AND
SUPREME COURT OPINION.
>> -- RIGHT, I THINK, CLEARLY,
THERE IS THE CONCEPT OF
HARMLESS ERROR RECOGNIZED, I
WOULD SUBMIT, HOWEVER, THAT
EVEN AT THAT STAGE, WE WOULD
HAVE TO TRANSFER THE STANDARD
TO THAT THE $$STATE'S BURDEN
PROVING IT IS HARMLESS BEYOND
A REASONABLE DOUBT OF COURSE
IF THE TRIAL JUDGE MADE THAT
FINDING THAT WOULD BE SUBJECT
TO REVIEW ON APPEAL.
>> I WOULD LIKE TO GO BACK TO
YOUR NOTION, THAT THE JURY
COULD HAVE MADE THESE KINDS OF
FINDINGS$$
FINDINGS, THAT YOU THINK
SHOULD BE MADE, BY A JURY, IN
THE GUILT PHASE IF WE ASSUME
THAT THE THERE IS NO EVIDENCE
SUBMITTED ABOUT THE $$
DEFENDANT'S PRIOR HISTORY,CH
THAT CERTAINLY IN ORDER TO
HAVE A CHECKOFF BOX, AS TO
WHETHER OR NOT THAT PRIOR
CONVICTION OCCURRED, WITHIN
FIVE$$
FIVE YEARS, OF THIS THIS
POSSIBLE NEW CONVICTION, THE
JURY WOULD HAVE TO KNOW THAT
THERE WAS A PRIOR CONVICTION.
WOULD THEY NOT?
>> NO THEY WOULD NOT.
AND IF I DIDN'T MAKE MY
POSITION CLEAR, LET ME LET ME
BACKTRACK A LITTLE BIT.
I'M NOT SAKE THAT ALL OF THE
FACTORS COULD BE DONE DURING
THE GUILT PHASE FOR INSTANCE
THE LACK OF PARDON, THE FACT
THAT IT HASN'T BEEN SET ASIDE
THAT COULD NOT BE DONE IN THE
GUILT PHASE BECAUSE THAT
INHERENTLY INFORMS THEM OF THE
CONVICTION$$
CONVICTION.
BUT, THE FIVE YEARS.
>> WHY, WHY -- A LACK OF A
PARDON$$
PARDON, I MEAN THAT IS SUCH A
STATIC CONDITION, AS OPPOSED
TO TO SAY IN WHAT IS IT AP$$
APPRENDE WHEN OR NOT REPAIR$$
REPAIRSHAL ANIMUS THAT LED TO
THIS CRIME IS, MEAN THAT IS A
SORT OF FACT, THAT -- IT IS
NOT JUST THERE, SO THERE IS
SOMETHING FOR A TRIER OF FACT
TO MAKE A DETERMINATION, OF.
WHERE$$
WHEREAS, WHETHER OR NOT, THIS
CONVICTION OCCURRED ON A
CERTAIN DATE, ACCORDING TO THE
RECORDS$$
RECORDS, IS NOT SOMETHING THAT
EITHER DID OR DIDN'T, SO I'M
HAVING A HARD TIME EVEN
FOLLOWING YOUR ARGUMENT THAT
THESE ARE THE KINDS OF FACTS
THAT NEED TO BE DETERMINED BY
A JURY.
>> OKAY.
>> BECAUSE THERE REALLY --
THERE OR THEY ARE NOT THERE
>> I THINK THE FACTS FALL IN
MY MINDP THEY FALL O O INTO
TWO DIFFERENT CATEGORIES, ONE
IS THE LACK OF -- LACK OF A
PARDON LACK OF A CONVICTION,
LACK OF A -- OVER TURNING OF
THE CONVICTION, THAT SHOULD BE
LOOKED AT IN ONE CATEGORY.
THE AMOUNT OF TIME, SHOULD BE
WELCOMED AT IN ANOTHER
CATEGORY.
SO, SINCE YOU ARE --
>> WHY?
>> BECAUSE -- THE LACK OF
PARDON$$
PARDON, AND THE LACK OF OVER
TURNING$$
TURNING, ARE MATTERS THAT
RELATE TO THE PRIOR CONVICTION$$
CONVICTION.
AND THE CASES THE STATE CITES
TALK ABOUT SITUATIONS WHERE
THEY ARE DIRECTLY DERIVERTIVE
FROM THAT CAN VICKION OR IN --
INTIMATELY RELATED THOSE
ARE --
>> YOU ARE PLEADING THAT THOSE
O DO NOT HAVE TO BE OH --
>> I'M NOT CONCEDING IT I'M
SAYING THE STATE HAS MUCH
STRONGER ARGUMENT AS TO THOSE
I'M SAYING THE U.S. SUPREME
COURT 1240$$SHOULD BE TAKEN AT FACE
WHEN IT SAYS FACT OF
CONVICTION BUT THAT
APPROXIMATE THE STATES
ARGUMENT THAT THESE THINGS
FALL IN SORT OF A PER NUMRA OF
THAT CONVICTION A MUCHL
STRONGER ARGUMENT THAN THEIR
ARGUMENT AS TO LENGTH OF TIME,
AND HERE IS WHY.
THE LENGTH OF TIME, REQUIRES
PROOF TWO OF THINGS, IT
REQUIRES PROOF THAT THE PRIOR
CONVICTION OR DATE OF RELEASE
OCCURRED ON SUCH AND SUCH A
DATE, BUT IT ALSO REQUIRES,
PROOF THAT THIS CRIME, THE NEW
CRIME, OCCURRED ON A CERTAIN
DATE, AND THE PROOF
NECESSARILY TO ESTABLISH THAT
SECOND PART OF IT,
INDEPENDENCE STRICT MATTERS
RELATING TO THE NEW OFFICE IT
HE'S OFFENSE NO RELATION TO
OLD OFFENSE.
>> THAT IS NOT INHERENT --
>> I THINK WE ARING ASKING THE
SAME QUESTIONS ISN'T THAT
SOMETHING THE JURY DETERMINED
IN THIS CASE?
>> NO.
DID NOT.
THINKS SOMETHING I'M SAYING
THAT THIS ASPECT OF IT COULD
BE DETERMINED BY A CHECKOFF
BOX, IT WAS NOT DETERMINED IN
THIS CASE, BECAUSE THE JURY
WAS NOT INSTRUCTED, AS TO THE
DATE OF THE CRIME, THE VERDICT
FORM DID NOT CONTAIN ANYTHING
REFERRING TO THE DATE OF -- OF
THE CRIME, AND --
>> BUT THE INFORMATION DID DID
IT NOT?
>> WELL, THE INFORMATION --
HASN'T$$
HASN'T.
>> WAS THE INFORMATION SENT
BACK WITH THE JURY.
>> WELL.
>> -- MAY WHATEVER THE DATE
WAS --
>> THE INFORMATION SAID ON OR
ABOUT.
>> RIGHT
>> DID NOT SPECIFY A SPECIFIC
DATE.
I TRIED TO DETERMINE FROM THE
RECORD WHETHER THE INFORMATION
WENT BACK TO THE JURY AND HAVE
BEEN UNABLE TO SEE AN
INDICATION FOR CERTAIN ONE WAY
OR THE OTHER.
I BELIEVE IT IS LIKELY THAT IT
DID NOT, BECAUSE THE
INFORMATION THIS CASE WAS
TRIED ON CONTAINED FOUR COUNTS$$
COUNTS, THE STATE DID NOT
PROCEED ON TWO OF THOSE
COUNTS.
SO THEY CERTAINLY WOULDN'T
HAVE SENT THAT INFORMATION
BACK IF THERE WAS SOME SORT OF
A REDACTED INFORMATION I WOULD
ASSUME THERE O WOULD HAVE BEEN
DISCUSSION OF THAT.
>> THE TESTIMONY IN THE
ARGUMENT OF COUNSEL IN WHAT
ANY DISPUTE ON THE DATE.
>> THERE WAS NO DISPUTE THAT I
REMEMBER --
>> PART OF THE ELEMENT THAT
THE STATE HAS TO PROOF IF IT
IS IN THE INFORMATION THAT THE
CRIME OCCURRED OH, ON SUCH AND
ZAICHT JURY MAY NOT HAVE TO
MAKE INDEPENDENT FINDING BUTH
PART -- OF.
>> THAT IS KEY, BECAUSE WHAT
BLAKELY TALKS ABOUT IT MUST BE
DECIDED BY A JURY SO HE.
>> IS THIS A 6TH AMENDMENT
RIGHT?$$
RIGHT$$
THAT YOU ARE ALINGING?
.
>> WELL, IT IS -- PARTLY 6TH
AMENDMENT PARTLY DO YOU
PROCESS PARTLY JUST.
>> --
>> BECAUSE, DID IT ATTACH AT
THE TIME THE RIGHT TO JURY
TRIAL ATTACHED AT THE
BEGINNING WHAT I WANT YOU TO
SPEAK TO IS PREFERRINGS ISSUE
IF THIS -- PRESERVATION IF 6TH
AMENDMENT RIGHT YOU HAD RIGHT
TO JURY DIDN'T RAISE UNTIL
AFTER THE JURY WAS CHARGED IS
IT NOT WAIVE WAIVED.
>> I SUGGEST NOT99WAIVED FOR A
COUPLE REASONS FIRST OF ALL
THE BORNS CASE OUT OF MINIMUM
SOUGHT HE MINNESOTA I CITE IN
REPLY BRIEF THEY TALKED ABOUT
THE FACT THAT THE NEEDS TO BE
A WAIVER ON THE RECORD, OF THE
RIGHT TO A JURY TRIAL BUT
SENDING OF ALL, EVEN IF WE PUT
THAT ASIDE, IT IS PRESERVED BY
THE 3800 MOTION, THAT IS THE
PROCEDURE THIS COURT ADOPTEDED
TO PRFSH SENTENCING ERRORS
THROUGHOUT THE THE FOR YOU
AMENDMENTS CASES THIS COURT
SAID REPEATEDLY THE PRIME
REASON WE ARE DOING THIS IS TO
GIVE THE DEFENSE A CHANCE TO
PRESERVE UNPRESERVED ERROR.
>> ISN'T IT TRUE EVEN UNDER
BLAKELY OTHER CASES IN FLORIDA
THE JUDGE DOES SENTENCING, BUT
IF THE JUDGE IS GOING TO RELY
ON A FACT THAT UNDER BLAKE IT
NEEDS TO BE BOUND BY THE JURY
THAT JURY NEEDS TO MAKE THAT
FINDING THE JURY IS NOT
PARTICIPATING IN SENTENCING IT
IS THE JUDGE THAT DOES THE
SENTENCING$$
SENTENCING.
.
>> THAT IS CORRECT.
>> IS THAT NOT CORRECT?
>> THE JUDGE US THE ONE THAT
IMPOSED SENTENCE HE IS, YES.
>> LET'S GO TO -- THE HARMLESS
ERROR BECAUSE I THINK, EVEN
THOUGH FRANKLY, 3800 B IS NOT
INTENDED TO DEAL WITH THIS,
THIS APPRENDI ISSUE JUST -- I
BELIEVE WAS NOT ON A RADAR
SCREEN BUT LET'S ASSUME THAT
OF YOU -- YOU HAVE GOT A GOOD
ARGUMENT THAT IT SAYS ANY
SENTENCING ERROR.
I'M IN TERMS OF THIS HARMLESS
ERROR NOT ONLY TO ME, DOES IT
FLOW FROM THE PRIOR CONVICTION$$
CONVICTION, BUT THERE IS NO
DISPUTE AS TO THE DATE THAT
THIS INCIDENT OCCURRED, SO
AREN'T WE REALLY AS FAR AS
HARMLESS ERROR ISN'T THAT YOUR
WEAKEST LINK IN THIS, IN OTHER
WORDS$$
WORDS, YOU CAN GET THROUGH THE
FIRST AND SECOND HOOPS, AND
MAYBE THAT IS YOU KNOW, THAT
IS SOMEWHAT SIGNIFICANT BUT
THEN, WE REALLY GOT TO LOOK
AND SAY, ARE WE SERIOUSLY
TALKING ABOUT HAVING A JURY
EMBEANEM PANELED TO DECIDED
THE ISSUE OF THE DATE THE
OFFENSE OCCURRED?
IS THAT WHAT YOU ARE ASKING?
>> THAT IS CORRECT, THAT WHAT
IS I'M ASKING.
>> AND YOU ARE SAYING, "YOUR
COURT APPOINTED IN THIS --
>> I'M FARMED OUT FROM THE
PUBLIC $$
PUBLIC DEFENDER'S OFFICE.
>> THAT THAT IS IN GOOD FAITH
THERE IS A DISPUTE AS TO THE
DATE THAT THE INCIDENT
OCCURRED$$
OCCURRED?
>> I DON'T THINK THERE IS
ANYTHING IN THE RECORD THAT
MAY DISPUTE WHEN THE INCIDENT
OCCURS I THINK THERE IS
SOMETHING THAT GIVES US REASON
AS TO HOW THE JURY MAY HAVE
INTERPRETED WHAT THE FIVE YEAR
PROVISION --
>> SO MAYBE IF THERE REALIZE
IS AN ISSUE ABOUT THAT, THEN
MAYBE TRIAL COUNSEL WAS
INEFFECTIVE FOR NOT ARGUING
THAT TO THE JUDGE, BECAUSE
THAT IS CLEARLY AFTER --
ASCERTAINABLE$$
ASCERTAINABLE, UNLIKE
SOMETHING IS JOIST JUSTICE
SAID COULD BE VARIABLE LIKE A
RACIALLY ANIMUS NATURE OF THE
CRIME, BUT, WHY WASN'T THAT
THEN RAISED TO THE JUDGE?
>> WELL, THE -- DATES, ON
WHICH VARIOUS THINGS OCCURRED
ARE GENERALLY GOING TO BE
REASONBLY ASCERTAINABLE I WILL
GRANT YOU, THAT ALTHOUGH EVENT
-- EVEN THAT IS NOT
NECESSARILY THE CASE, BECAUSE
I CAN POINT OUT TO YOU FOR
INSTANCE, IN THE $$CLERK'S
RECORD THAT WAS SENT UP HERE
WITH THIS CASE THEY HAVE THE
WRONG FILING DATES FOR ALL OF
THE BRIEFS IN THE THIRD
DISTRICT SO IF YOU LOOK AT
THAT IT DOESN'T NECESSARILY
MEAN THAT THAT IS THE CASE.
BUT, WHAT I'M POINTING OUT IN
THE HARMLESS ERROR ARGUMENT,
IN RESPONSE TO THE $$STATE'S
HARMLESS ERROR ARGUMENT FIRST
OF ALL I SUBMIT THE STATE
WAIVED THAT THEY NEVER RAISED
IT IN DISTRICT COURT THEREFORE
SHOULDN'T BE BROUGHT UP AS NEW
ISSUE HERE AT THIS POINT BUT
INDEPENDENT OF THAT, IF YOU
LOOK AT THE STATUTE, THE
STATUTE IS SUSCEPTIBLE TO TWO
DIFFERENT INTERPRETATIONS AS
TO WHEN THAT FIVE YEAR
PROVISION MIGHT KICK IN.
THE STATUTE.
REFERS TO IT BEING THAT THE
MUST BE WITHIN FIEFRN YEARS OF
THE DATE OF CONVICTION, FIVE
YEARS -- OF THE LAST
ENUMERATED FELONY, OR FIVE
YEARS OF HIS RELEASE FROM A
SENTENCE IMPOSED AS THE A
RESULT OF PRIOR -- CONVICTION.
>> I DON'T WANT TO QUIBBLE BUT
IF THAT IS THE CASE YOU CAN
BRING THAT UP AS A SENTENCING
ERROR, AND -- IN 3800 THEN YOU
SHOULDN'T HAVE WOULDN'T KWAFL
FOR THIS STATUS -- THAT IS NOT
ANYTHING WE NEED TO HE IMPANEL
A JURY.
>> REMIND YOU YOU ARE WELL
INTO YOUR REBUTTAL SO IF YOU
WANT TO ANSWER AND SAVE
SOMETIME YOU NEED TO --
>> THANK YOU I WILL.
>> I WILL, THE POINT I'M
MAKING WITH THIS THAT IS
BECAUSE THAT COULD BE
INTERPRETED TWO DIFFERENT WAYS
IF THIS WENT BEFORE A JURY WE
DON'T KNOW WHICH WAY JURY
WOULD WHEN INTERPRETED IT
COULD HAVE INTERPPRITED
FIVERABLE TO MR. LUTON
THEREFORE THE STATE HAS NOT
MET BURDEN SHOWING BEYOND A
REASONABLE DOUBT THIS HARMLESS$$
HARMLESS.
>> BUT, DOESN'T THAT STATUTE
REALLY MEAN EITHER/OR, OR YOU
HAVE, WHAT DOES THAT STATUTE$$
STATUTE --
>> I THINK, THAT IS SOMETHING
THAT HASN'T BEEN DETERMINED,
AND SINCE IT HASN'T BEEN
DETERMINED, WE ARE GOING TO
ASSUME I THINK THAT A JURY
INSTRUCTION WOULD TRACK THE
STATUTORY LANGUAGE AND WHAT
I'M SAYING IS THERE IS ROOM
FOR THE JURY TO HAVE INTERPRET$$
INTERPRETED EITHER WAY AND AS
LONG AS THAT --
>> BUT REAL PROBLEM I HAVE
WITH THIS ARGUMENT IS THAT WE
ARE GOING TO END UP IF WE
ACCEPT YOUR ARGUMENT, WE ARE
GOING TO END UP WITH ALL KINDS
OF -- ADDITIONAL JURY
DETERMINATIONS OF A MYRIAD OF
THINGS THAT JUST -- GOING TO
BOG THE SYSTEM DOWN.
>> YOUR HONOR THE ANSWER TO
THAT IS VERY SIMPLE, ALL THE
POLICY REASONS THE STATE
ASSERT$$
ASSERTED, AND PRESUMABLY THAT
IS WHAT THE THIRD DISTRICT
MEANT WHEN THEY SAID LOMG$$
LOMGICALLY BECAUSE THEY DIDN'T
REALLY EXPLAIN THEIR REASONING$$
REASONING, THOSE MAY BE
REASONS TO CHANGE THE RULE,
BUT THE FACT IS THE RULE SAID
WHAT IT SAID, AT THE TIME THIS
OCCURRED$$
OCCURRED, MR. LUTON COMPLIED
WITH THE RULE, AND, THEREFORE,
HE IS IN COMPLIANCE SHOULD NOT
BE PENALIZED.
>> WHI WHICH RULE.
>> RULE 3800B.
AND IF IT NEEDS TO BE CHANGED,
AND ZWRIS PARIENTE.
>> I'M THINKING MORE MERITS
THESE KINDS OF ISSUES WHETHER
OR NOT EVERY LITTLE THING,
NEEDS TO GO BEFORE A JURY,
WHEN THOSE FACTS, ARE READILY
ASCERTAINABLE ON THE RECORD,
WITHOUT THESE KINDS OF JURY
DETERMINATIONS$$
DETERMINATIONS, AND I JUST
DON'T SEE -- WANTING TO
IMPANEL JURIES TO MAKE THOSE
KINDS OF FINDINGS.
>> FIRST OF ALL, I THINK IT I
CLEAR FROM BLAKELY BOOKER AP$$
APRENDI ET AL EVERYTHING
EXCEPT FACT OF PRIOR
CONVICTION DOES HAVE TO GO TO
JURY I THINK THE ISSUE IN THIS
CASE WHAT IS EMCOMPASSED BY
TERM FACT OF A PRIOR
CONVICTION$$
CONVICTION.
>> THAT'S CORRECT.
>> SO I THINK THAT UNDER FACTS
OF THIS CASE CERTAINLY THE
TIME LINE IS NOT-ENCOMPASSED
BY THAT BECAUSE IT IS BASED
SOLELY ON THE FACTS RELATING
TO SECOND OR NOT SOLELY BUT
ONE OF THE TWO KEY AS PENTHS
BASE THE ENDS FACTS OF THE
SECOND CONVICTION NOT THE
FIRST ONE.
>> MAY IT PLEASE THE COURT.
>> PULL MICROPHONE DOWN,
PLEASE.
>> LINDA KATZ OF THE ATTORNEY
GENERAL'S OFFICE, HERE ON
BEHALF OF THE STATE OF IN
ORDER, THE RESPONDENT IN THIS
ACTION$$
ACTION.
FIRST WE LOOK AT PRESERVATION,
IN TERMS OF PRESERVATION AS
THE STATE RAISED IN ITS
RESPONSE WHEN ASKED TO DO SO,
BY THE THIRD DISTRICT COURT OF
APPEAL UPON REHEARING, APRENDI
WAS THE APPROPRIATELY CLAIM TO
HAVE BEEN MADE TO PRESERVE
THIS ISSUE, FOR PIPELINE.
BLAKELY HAS TO DO WITH
SENTENCING GUIDELINES, THIS
DEFENDANT WAS COMMITTED WHO IS
FENCE AT TIME WHEN THE
CRIMINAL PUN MEANT CODE WAS IN
EFFECT.
AT THAT POINT, APRENDI DEALT
WITH STATUTORY MAXIMUMS.
>> DIDN'T THE THIRD DISTRICT
IN THIS CASE, TELL THE
DEFENDANT, TO FILE THIS AND SO
ARE WE HERE ON SOMETHING THAT
REALLY US THE LAW OF THE CASE
HERE -- BECAUSE THEY HAD TOO
MANY HIM TO -- THEY TOLL HIM
TO FILE THE -- EIGHT -- 3800B
TYPE MOTION.
>> THEY DID NOT TELL HIM, WHAT
HAPPENED PROCEDURALLY WAS THAT
BLAKELY CAME OUT A DAY AFTER
THE DEFENDANT HAD FILED HIS
BRIEF IN THE THIRD DISTRICT
COURT OF APPEAL, NOW, THIS IS
NOT THE POINT THAT I WANT TO
FOCUS ON BUT IN TERMS OF
TIMELINESS THE STATE DOES
QUESTION WHETHER OR NOT THE
DISTRICT COURT CREATED A LEGAL
FICTION BY ALLOWING THE
DEFENDANT TO WITHDRAW HIS
BRIEF, SO THAT HE COULD FILE
HIS 3.800 B2 BUT THE DEFENDANT
SOUGHT TO FILE THAT IN LIGHT
OF BLAKELY IN TERMS OF
PRESERVATION BLAKELY WAS THE
WRONG CLAIM YOU HAVE TO MAKE A
SPECIFIC CLAIM IF YOU WANT TO
REVIEW A CLAIM I WANT HAS TO
BE ON THE SAME THING YOU
OBJECTED TO BELOW.
>> YOU ARE SAYING BECAUSE HE
OBJECTED ON BASIS OF APRENDI
INSTEAD OF BLAININGLY FLOO
REVERSE HE OBJECTED, ON BLAKE$$
BLAKELY, HOWEVER, APRENDI. WAS
IN EXISTENCE.
>> IT DID IT CLARIFIED IT WILL
BUT IT DEALT WITH GUIDELINES,
AND THIS CASE, THAT WAS NOT A
HABITUAL SENTENCING GUYS WOULD
NOT HAVE BEEN A GUIDELINES CAN
CASE THE GUIDELINES NO LONGER
EXIST$$
EXISTED, WHAT I'M SUGGESTING.
>> ARE YOU SAYING, IN THIS
3800B THE LAWYER -- IF THE
LAWYER DIDN'T RAISE THE --
PRRENDI INSTEAD OF BLAKELY.
>> CORRECT.
>> AREN'T WE REALLY AGAIN NOW,
SO ARE YOU AGREEING, THOUGH,
THAT IF HE HAD SAID, APRENDI
IN 3800B, THAT THAT BY ITS --
PLAIN LANGUAGE WOULD APPLY TO
PRESERVE THE ERROR.
>> NO WERE A -- WHAT I'M
SAYING 3.800 VEHICLE, HE SAID
HE ONLY RAISES 3.800 BECAUSE
BLAKELY WAS ISSUED THE DAY
AFTER, HOWEVER, WHAT WE ARE
SAYING IS APRENDSHI HAVE BEEN
RAISE NEED TRIAL COURT, FOR
PRESERVATION ISSUES, AS YOU
SUGGESTED$$
SUGGESTED, EARLIER.
>> APRENDI HAD BEEN --
>> IT WAS IN ISSUED IN 2000.
>> SO WAS THAT EVER -- RELIED
ON TO ASK THE JURY TO MAKE
THESE DETERMINATIONS.
>> NEVER, AND --
>> -- THE POINT IS IF IT IS
SENTENCING ISSUE, ISN'T 3.800B
DESIGNED FOR SITUATIONS WHERE
THEY DIDN'T PRESERVE IT AT
TRIAL, NOW GET A CHANCE TO
PRESERVE IT BEFORE IT GOES UP
ON APPEAL.
>> JUSTICE CANTERO ABSOLUTELY
BUT THE QUESTION IS IF IT IS A
SENTENCING ISSUE.
AS JUSTICE PARIENTE SUGGESTED,
THIS HAPPENED IN CONNECTION
WITH THE GUILT PHASE PORTION
OF THE PRE-- PROCEEDING.
IT I AMPLICATES THAT JURY THAT
JURY WAS IN ESSENCE, IN EFFECT
DISCHARGED BY THE POINT LONG
GONE BY THE POINT THAT THIS
WAS RAISED.
THE PURPOSE OF CONTEMPORANEOUS
OBJECTION IS TO ALLOY THE
TRIAL COURT THE OPPORTUNITY TO
BE NOT FIVED OF THE ERROR AND
HOPEFULLY, RECTIFY IT.
>> IN THIS A HYBRID THAT WE
DIDN'T THINK ABOUT IT$$AT THE TIME
AND THE PROBLEM I HAVE WHETHER
THE AMEND IT SO MANY ASPECTS
OF THIS RULE PROBLEMATIC BUT I
THINK$$
THINK, THAT WE MAY BE STUCK
WITH WHAT THE LANGUAGE SAYS,
WHICH IS SENTENCING ERROR, AND
SENTENCE THAT IS BASED ON A
FACT THAT SHOULD HAVE BEEN
DETERMINED BY THE JURY I THINK
IS A STRETCH TO SAY IT IS NOT
A SENTENCING ERROR.
>> IT IS A HYBRID I THINK THAT
IS MORE ACCURATE, BUT BECAUSE.
>> AS OPPOSED TO LIKE VICTIM
INJURY POINTS ONLY COMES UP AT
THE ACTUAL SENTENCING -- IT IS
A DIFFERENT TYPE OF -- ERROR.
>> YOU WOULD AGREE THAT THIS
ONE THE JURY IF THIS WAS ALL
THOUSAND BE DETERMINED, BY THE
JURY$$
JURY, HABITUAL OFFENDER
STATUTES THAT O IS IT STATS
WOULD HAVE HAD TO BE DONE
SECOND FACE.
>> ABSOLUTELY BIFURCATEED IN
TERMS OF JUDICIAL ECONOMY I
KNOW JUSTICE CANTERO
CONSIDERED THE POSSIBLE
MECHANISM WHEREBY, A SECOND
JURY COULD BE IMPANELED, IT
WOULD BE -- THE MOST OPTIMUM
AND IDEAL FUNCTION IF WE COULD
IN FACT ANTICIPATE THIS, AND
HAVE THE SAME JURY BUT HAVE IT
BE BIFURCATED, IN SIMILAR WAY
AS A VERDICT FORM HAS A
CHECKOFF BOX, AFTER GUILT IS
DIRMD$$
DIRMD, YOU COULD CHECK OFF,
THESE FACTORS, HOWEVER -- THIS$$
THIS --
>> I SEE THAT THERE ARE
CERTAIN FACTORS CERTAIN FACTS
THE JURY WOULD NOT BE ABLE TO
HEAR, IN THE DPULT PHASE
PORTION.
>> ABSOLUTELY IT WOULD HAVE TO
BE AFTERWARDS, BECAUSE THERE
WOULD BE PREJUDICE TO THE
DEFENDANT IF IT WERE ANY OTHER
WAY.
HOWEVER$$
HOWEVER, WHOA WE HAVE --
HAVEN'T TOUCHED UPON WHAT THEY
OPPONENT HASN'T TOUCHED UPON
IS THE FACT THAT THERE IS A
VERY LONG CERTAIN HISTORY IN
THIS COURT THAT SAYS APRENDI
DOES NOT INCLUDE OR IMPLICATE
RECIDIVISM STATUTES BECAUSE IT
DOES NOT DEAL WITH THE OFFENSE
FOR WHICH THE DEFENDANT IS
BEING SENTENCED ON.
THIS HAS TO DEAL WITH THE
PRIOR CONVICTION.
AND THIS COURT HAS RECOGNIZED
THAT TIME AND TIME AGAIN,
IN --
>> AND YOUR OPINION HOW DO YOU
READY APRENDI WHEN IT SAYS
EXCEPT FOR THE FACT OF A PRIOR
CONVICTION WHY DID THE COURT
IN APRENDI ACCEPT THAT FACT
OUT OF EVERYTHING ELSE, THAT
HAS TO BE SUBMITTED TO A JURY?
WHAT WAS THE PURPOSE BEHIND
THAT EXCEPTION.
>> BECAUSE THE JURY THERE IS
TO DETERMINE THE GUILT OF THE
DEFENDANT FOR THAT PARTICULAR
OFFENSE AND IF SENTENCE FORDS
THAT PARTICULAR OFFENSE IF
GOING TO BE ENHANCED BASED ON
A FACT THAT INVOLVED THAT
OFFENSE, THEY SHOULD DETERMINE
IT.
IF IT.
>> WHAT ARE CASES THAT WE SAID
THAT THESE RECIDIVISM STATUTES$$
STATUTES, DO NOT IMPLICATE AP$$
APRENDSNOOI DENNIS VOLUMES
HABITUAL OFFENDER SENTENCING
ROBINSON McGREGOIRE BARNES AND
SMITH WHICH ARE INVOLVED --
THE P-R.R. ACT WHICH HAS THE
SIMILAR TIME TRAIM PRSAYS THE
PRIOR CONVICTION MUST HAVE
OCCURRED WITHIN THREE YEARS.
HERE IN HABITUALIZATION WE SAY
IT MUST HAVE OCCURRED WITHIN
FIVE YEARS.
>> THE -- SPECIFIC IN ISSUE
THOSE CASES LOW --.
>> THE TIMING THE COURT HAS
LOOKED AT IT AND THE COURT HAS
SAID, THIS CONSIDERATION IS
OUTSIDE THE MANDATE OF AP$$
APRENDI, AND BLAKELY -- WITH
-- AS WELL THE SAME PORTION,
THAT WE ARE DEALING WITH TODAY
HVFOH, APRENDI DOES NOT APPLY
TO RECIDIVISM THEREFORE THERE
CAN NO BE NO MERIT TO THIS
CASE I KNOW JUSTICE PRESENT
ANYWAY YOUR SPECIALLY
OCCURRING IN ANY EVANS WHICH
DEALT WITH APRENDI RING CLAIM
IN A CAPITAL CASE, YOU DID NOT
FEEL THAT THE PROCEDURAL SHSH
BE RAISED BECAUSE CLEARLY IT
WAS WITHOUT MERIT.
AND THIS CASE, IS IN THE SAME
POSTURE.
EVEN IF WE GET THROUGH THE
FIRST HOOP, OR THE FIRST
HURDLE$$
HURDLE, AS WAS REFERRED TO
BEFORE AND WE SAY THERE WAS
PRESERVATION$$
PRESERVATION, THERE CAN BE NO
MERIT$$
MERIT, IT HAS BEEN ESTABLISHED
BY THIS COURT, AND EVEN AS
JUSTICE QUINCE SAYS IF WE
LOOKED AT FROM IT A HARMLESS
POINT OF VIEW, ITP CERTAINLY
IS HARMLESS IT IS A STATIC
PROVABLE ISSUE I WOULD LIKE TO
PINT OUT THERE WAS A CASE OF
CALLAWAY OUT OF THE SECOND,
THAT SURVEYED CASES FROM THE
FEDERAL CIRCUIT COURT OF
APPEALS$$
APPEALS, AND THERE WAS ONE
PARTICULAR CASE, USC --
RODRIGUEZ WHICH WAS OUT OF THE
10th CIRCUIT THAT TALKED ABOUT
TIMING AND THEY SAID THAT THE
FACT OF THE DATE OF $$
DEFENDANT'S RELEASE FROM
CUSTODY WHICH WE ARE DEALING
WITH HERE, AND THE FACT THAT
THE DEFENDANT WAS ON
SUPERVISION DURING COMMISSION
OF THE OFFENSE, INSTANT
OFFENSE CALLS UNDER THE PRIOR
CONVICTION EXCEPTION, BECAUSE
THEY ARE SUBSIDIARY FINDINGS,
THAT ARE MERELY ASPECTS OF THE
DEFENDANT'S REINDIVIDUAL VICHT
O SE INDIVIDUAL VICHT
POTENTIAL EASILY VERIFIED
REQUIRED NOTHING MORE THAN
OFFICIAL RECORDS A CALENDAR
AND THE MOST SELF-EVIDENT
MALIGNANT MATKAL COMTAILGS.
>> -- HAVE OTHER COURTS DECIDE
WHETHER RECIDIVIST STATUTES
FALL WITHIN THE P$$RENDI BLAKE$$
BLAKELY.
>> THERE HAS BEEN NO COURT
THAT HAS SAID, EVERY DISTRICT
COURT OF APPEAL OF THIS COURT
AS -- STATE FEDERAL AUTHORITY
AS WELL AS THIS COURT FOUND
THAT ANOTHER POINT I WOULD
LIKE TO POINT OUTGOING BACK TO
THE HARMLESS ERROR, ARGUMENT,
WHICH WAS RAISED DURING GIL
ENZEZ IS A FACT ADMITTED BY
DEFENDANT, AND AT THE
SENTENCING$$
SENTENCING, THE DEFENDANT
ACKNOWLEDGED THAT HE WAS ONLY
IN HIS ESTIMATION, 30 DAYS SHY
OF MAKING FOR IT THE FIVE
YEARS WITHOUT COMMITTING
ANOTHER OFFENSE.
TO -- DEFENSE COUNSEL
CAPITALIZE HANDS TO CONCEPTED
IT WAS ACTUALITIES 41 DAYS,
AND SAID, HE SHOULD BE
CONSIDERED FOR LENIENCY IN
SENTENCING$$
SENTENCING, BECAUSE HE ALMOST
MADE IT TO THE FIVE YEARS.
SO IT WAS ACKNOWLEDGED, THIS
IS A FACT THAT HAS BEEN
ACKNOWLEDGED$$!!!!!!!!!!!!
ACKNOWLEDGED, AND GL ENDEZ IN
MAJORITY OPINION SAID
ADMISSIONS DURING SENTENCING
CAN BE CONSIDERED AS AN
EXCEPTION TO APRENDSNOOI WERE
ANY OF THE FACTORS, THAT THE
DEFENDANT IS NOW CLAIMING, TO
HAVE BEEN FOUND BY THE JURY,
WERE ANY OF THOSE FACTORS
DISPUTED?
.
>> ABSOLUTELY NOT.
AND IN ALL THE PLEADINGS, IT
HAS NEVER BEEN DISPUTED THE
OENLT ARGUMENT TO SUGGEST,
THAT THERE IS POSSIBLY, A
REASON, WHY THIS SHOULD BE
CONSIDERED, BY A JURY, IS SOME
KIND OF INTERPRETATION OF THE
STATUTE.
HOWEVER!!$$!!!!!!!!!!!!
HOWEVER, FOR THE REASON WHY
THE DEFENSE ARGUES THE STATE
-- STATUTE IS HARD TO
UNDERSTAND, THAT IS WHY
775.084 ADMINISTRATES --
MANDATES THAT IT IS THE JUDGE
WHO SHOULD MAKE THOSE
DETERMINATIONS BECAUSE THE
JUDGE IS WELL AWARE OF THE
SENTENCING SCHEME TOP.
>> WHAT IS YOUR UNDERSTANDING
THAT THE DISTS ARGUING REGARD!!$$!!!!!!!!!!
REGARDING THE ASKING THE JURY
TO DO IS IT A LEGAL
INTERPRETATION OR A FACTUAL?
>> WELL, IN TERMS OF OUR
ARGUMENT IS THIS IS SENTENCING
ISSUE, PURELY LEGAL.
THE DEFENDANT IS TRYING TO
MAKE IT SOMETHING THAT SHOULD
BE FACTUALLY ESTABLISHED
BEYOND A REASONABLE DOUBT,
THIS IS A FACT WHICH AS
JUSTICE QUINCE SAID IS STATIC
IT EXISTS, AS YOU ALSO
SUGGESTED IN THE COURSE OF A
TRIAL, TYPICALLY, THE DATE IS
REFERRED TO WHEN THE WITNESSES
ARE TESTIFYING AND ON THE DATE
THIS HAPPENED THERE WAS NEVER
DISPUTE AS TO THAT.
>> THE FACTS ESTABLISHED --
>> WOULDN'T WE WANT TO FOR THE
FUTURE I'M CONCERNED YOU
MENTIONED McGREGOIRE ROBINSON
MED!!$$!!!!
MEDINAS, THAT WAS -- FOR THE
FUTURE -- TRIAL JUDGES
PROSECUTORS OUGHT TO ERR ON
THE SIDE UNLESS THE DEFENDANT
AGREES THAT PUT THINGS LIKE
THE DATE, IS AS MUCH AS THE
JURY CAN DETERMINE SO WE DON'T
HAVE TO KEEP ON LITIGATING
WELL SHE THIS FACT BE FOUND OR
NOT, WOULD YOU AGREE, AS FAR
AS THE FUTURE THAT THAT WOULD
BE A --
>> YES IT WOULD --
>> WE HAVE NO IDEA WHETHER
U.S. SUPREME COURT IS GOING TO
GO YOU KNOW, WITH APRENDI AND
BLAKE!!$$!!!!!!!!
BLAKELY.
>> BUT IN TERMS OF YOU KNOW IN
A PERFECT WORLD IT SHOULD BE
THAT WAY BUT BECAUSE THE STATE
MAINTAINS!!$$!!!!!!!!!!!!!!!!
MAINTAINS, IT WAS CLEARLY A --
ESTABLISHED BUT EVEN IF IT WAS
NOT ESTABLISHED, IT WAS NOT
OBJECTED TO.
>> -- RIGHT, SO I'M JUST
CONCERNED, THAT --
>> THAT WE DON'T WE CAN'T COME
UP WITH A RULE THAT SAYS IF
SOMETHING IS EASILY ASCERTAIN!!$$!!!!!!!!!!!!!!!!
ASCERTAINABLE!!$$!!!!!!!!!!!!!!!!!!!!!!!!
ASCERTAINABLE, IT IS NOT
SUBJECT TO A JURY FIND,
BECAUSE THAT IS NOT WHAT AP!!$$!!
APRENDI SAYS, WHAT WE ARE
TALKING ABOUT HERE IS TWO
THINGS, ONE DOES IT FLOW FROM
THE PRIOR CONVICTION, THAT IS
IS IT INHERENT, IN A PRIOR
CONVICTION!!$$!!!!!!!!!!!!!!!!!!
CONVICTION, AND TWO, IS IT'S
HARM!!$$!!!!!!
HARMLESS, BECAUSE!!$$!!!!!!!!!!!!THERE IS NO QUESTION
ABOUT THE DATES THAT SET FORTH
THE -- HIS QUALIFICATION FOR
THIS STATUS CORRECT?
>> IS THAT RIGHT.
>> YES.
>> THAT IS WHY WE ARE SAYING
IN THIS CASE --
>> ABSOLUTELY, THE STATE
MAINTAINS THAT THE ARGUMENT
SET FORTH BY THE DEFENDANT IS
IN CONTRAVENTION OF 757.84.
WE DON'T EVEN HAVE TO GO
THERE, TO SAY IS IT
QUESTIONABLE!!$$!!!!!!!!!!!!!!!!!!!!!!
QUESTIONABLE, BECAUSE, THE
SENTENCING STATUTE REQUIRES
THESE FINDINGS, TO BE MADE BY
THE JUDGE, SO UNLESS WE ARE IN
FACT GOING TO FIND THAT THOSE
STATUTES ARE UNCONSTITUTIONAL
WHICH NOW IS A WHOLE ANOTHER
IRIT IS NOT SOMETHING THAT --
>> WE DON'T KNOW, BECAUSE
AGAIN I DON'T WANT TO BE HERE
IN A SITUATION WHERE SOMETHING
IS VERY EASY FOR THE JURY TO
DETERMINE OR STIPULATION, THAT
MAYBE THAT SOME OF OUR
STATUTES THAT SAY JUDGES ARE
MAKING FINDINGS HAVE TO BE
ALTERED IN LIGHT OF APRENDI
AND BLAKELY SO I WOULDN'T GO
AND SAY THE REASON THE JUDGE
HAS TO MAKE THIS DETERMINATION
IS BECAUSE THE STATUTE SAYS
SO.
BECAUSE THE SUBSTITUTE
PROBABLY DIDN'T CONTEMPLATE AP!!$$!!
APRENDI AND BLAKELY.
>> IT WOULD BE A GOOD THING
BUT THE STATE FEELS THAT IN
THE CURRENT LEGAL LANDSCAPE,
IT IS NOT NECESSARY, CERTAINLY
NOT IN THIS CASE, BUT IT WOULD
BE HELPFUL THE MORE SERENITY
WE HAVE -- CERTAINTY WE HAVE
IN TRIAL COURT CONVICTIONS IS
BETTER FOR EVERYBODY INVOLVED
IN THE JUDICIAL SYSTEM THERE
IS NO DOUBT ABOUT THAT.
HOWEVER IT IS NOT NECESSARY,
IN THIS CASE, THE STATE
MAINTAINS!!$$!!!!!!!!!!!!!!!!
MAINTAINS, CLEARLY --
>> AFTER THE STIPULATION, FROM
THE DEFENDANT, TO ALL OF THESE
FACTORS!!$$!!!!!!!!!!!!
FACTORS, IN ANY CASE, WHERE
THE STATE IS SEEKING HABITUAL
OFFENDER SENTENCING, WE WOULD
HAVE TO MAINTAIN THE JURY AND
HAVE THE JURY THEN MAKE THESE
DETERMINATIONS?
.
>> IF THERE WAS --
>> IF THE DEFENDANT DOES NOT
STIPULATE TO IT.
>> IF THERE WAS MERIT, IN A
HABITUALIZATION CASE IT IS
OUTSIDE AOF APRENDI SO I GO
BACK TO LACK OF MERIT ARGUMENT
IF IT WAS VICTIM INJURIES
POINTS WHICH DID IN FACT GO
BACK TO IT OFFICE FOR WHICH
THE -- OFFENSE FOR WHICH
DEFENDANT IS BEING TRIED THAT
IS DIFFERENT STORY, IN THIS
CASE THOUGH CLEARLY THESE ARE
NOT ISSUES, TO BE FOUND BY THE
JURY BECAUSE THEY DEAL WITH
PRIOR CONVICTIONS WHICH ARE
EXPRESS!!$$!!!!!!!!!!!!
EXPRESSLY, CLEARLY ESTABLISHED
EXCLUSIONS FROM APPRENDI AND
BLAKELY ONE THING THAT HE DOES
ARGUE, IS THAT THE PRESENT
CASE, WHAT YOU NEED FROM THE
PRESENT CASE IS WHEN THIS
PRESENT OFFENSE TOOK PLACE.
>> BUT THIS COURT HAS DECIDED
BOAT IN HABITUAL OFFENDER
STATUTES!!$$!!!!!!!!!!!!!!
STATUTES, AND IN PRSTATUTES,
THE -- ACT THAT IS, THAT THAT
TIMING, ELEMENT IS NOT SUBJECT
TO APPRENDI.
>> BASICALLY FOR THE REASON
THAT YOU PICKED UP ON EARLIER,
IT IS A FACT, IT IS BLIBD FOR
THE -- ESTABLISHED FOR THE
PURPOSE THAT IT NEEDS TO BE IT
DOES NOT GO BACK TO THE
OFFENSE FOR WHICH THE JURY IS
CONSIDERING!!$$!!!!!!!!!!!!!!!!!!!!
GUILT OR INNOCENCE.
>> RESPECTFULLY DISAGREE WITH
YOU BECAUSE THE CURRENT
OFFENSE, IS THE ONE THAT IS
GOING TO CAUSE HIM TO BE
HABITUALIZED!!$$!!!!!!!!!!!!!!!!!!!!!!
HABITUALIZED, SO IF IT IS THE
FACT OF THE PRIOR CONVICTION
THAT IS EXEMPTED, THEN
ANYTHING FLOWING FROM THE
PRIOR CONVICTION BUT THIS
CONVICTION WHICH IS GOING TO
QUALIFY HIM IF THE DATE OF THE
INCIDENT HERE YOU ARE SO CLOSE
TO IT, WAS REALLY IN DISPUTE,
I'M NOT SURE THAT YOU CAN
REALLY SAY THAT THAT WAS --
WOULD BE OUTSIDE APPREHEND
SNOOI IF IT WAS IN DISPUTE BUT
IN MOST TRIALS, AND NO TRIAL
IS PR, IN MOST -- IS PERFECT,
IN MOST TRIALS IN ORDER TO GET
A CONVICTION THESE BASIS
ELEMENTS HAVE BEEN ESTABLISHED!!$$!!!!!!!!!!!!!!!!!!!!
ESTABLISHED.
>> THAT IS DIFFERENCE WHETHER
APPRENDI APPLIES AND IS HARM!!$$!!!!!!
HARMLESS VERSUS DOESN'T SFLOOI
RIGHT BUT THE STATE WOULD
RESPECTFULLY GO BACK TO THE
PRIOR CASES WHERE THIS COURT
DECIDED THIS IS AN ISSUE, THAT
THAT "OUTSIDE APPRENDI BUT IN
LIGHT OF YOUR SUGGESTION, THAT
IF WE WANT TO MAKES -- MAKE
SURE THIS DOES NOT PRESENT
ITSELF PERHAPS A CHECKLIFT
WOULD BE SUGGESTED YOU KNOW IN
THE FUTURE.
HOWEVER!!$$!!!!!!!!!!!!
HOWEVER, THE STATE DOES
MAINTAIN THIS IS REALLY A
TECHNICAL MATTER THAT DOES NOT
NEED TO BRING IN A JURY.
IF A JURY WAS SOMETHING THAT A
DEFENDANT WAS ENTITLED TO, THE
STATE WOULD HAVE NO OBJECTION
TO GO THROUGH WHATEVER
PROCEDURES NECESSARY, TO HAVE
HIS RIGHTS HONORED, THIS DOES
NOT APPEAR TO BE ONE OF THOSE
SITUATIONS!!$$!!!!!!!!!!!!!!!!!!
SITUATIONS.
IF THE COURT HAS NO FURTHER
QUESTIONS, THE STATE WOULD
MAINTAIN THAT THE LOWER $$
COURT'S OPINION SHOULD BE
AFFIRMED!!$$!!!!!!!!!!!!!!
AFFIRMED, BOTH FOR LACK OF
PRESERVATION CERTAINLY FOR
LACK OF MERIT.
THANK YOU.
REBUTTAL!!$$!!!!!!!!!!!!!!
REBUTTAL.
>> THANK YOU YOUR HONOR.
>> FIRST OF ALL, AS FAR AS NOT
MENTIONS NOT ARGUING APPRENDI,
THREE OF THE FOUR QUOTED
PARAGRAPHS FROM BLAKELY IN THE
TRIAL COURT MOTION QUOTE
APPRENDI!!$$!!!!!!!!!!!!!!
APPRENDI.
SO I THINK IT IS CLEARLY
ENCOMPASSED BY IT I DON'T
THINK IT HAD TO BE BUT IT IS
CLEARLY ENCOMPASSED.
>> I GUESS THE POINT THAT
PROSECUTOR WAS MAKING IS THAT
APPRENDI HAD BEEN DECIDED WAY
BEFORE THE TRIAL HERE, SO IT
IS NOT THE FACT THAT YOU
DIDN'T FILE THE MOTION, AT
TRIAL BECAUSE BLAKELY HADN'T
BEEN DECIDED YET.
BECAUSE APPRENDI HAD BEEN
DECIDED, BUT IF YOU ARE
CORRECT, THAT THIS IS A
APPROPRIATELY -- APPROPRIATELY
UNDER 3800 B, THEN IT DOESN'T
MATTER BECAUSE YOU COULD
ASSERT IT AFTER TRIAL.
>> CORRECT AND ALSO I RECALL
YOUR $$HONOR'S ATTENTION TO THE
VERMENT AND INDIANA CASES
CITED IN MY REPLY BRIEF THE
SUPREME COURTS OF THOSE CASES
STATES BOTH DEALT WITH THIS
BOTH HELD BLAKELY WAS
SUFFICIENT CHANGE IN THE LAW
AND ONE CASE THEY SAID THAT
COUNSEL WAS NOT YEKT -- NOT
INEFFECTIVE NOT ARGUING
APPRENDI THE OTHER ONE ALLOW
ORDER I WOULD CITE TO YOU
THOSE CASES
>> WERE THE GUIDELINE STATES?
>> I DON'T KNOW THE ANSWER TO
THAT.
>> DOES IT MAKE DIFFERENCE?
>> YOU HAVE TO ADMIT BLAKELY
WAS A DPLIEN CASE.
>> BLAKEBLY WAS A GUIDELINES
CASE OBVIOUSLY.
>> THIS IS NOT A GUIDELINE
CASE DEALING WITH HERE THE
THAT IS CORRECT I DON'T KNOW
THE ANSWER AS TO --
>> LET ME CIRCLE BACK TO THE
VERY BEGINNING HERE, CAN YOU
GIVE ME, YOUR99WORKING
DEFINITION OF A SENTENCING
ERROR.
>> OKAY ACTUALLY, WHAT I CAN
DO IS GIVE YOU THE DEFINITION
THIS COURT REFERRED TO,$$!!!! IF I
CAN FIND I WANT HERE.
IF I CAN FIND IT HERE.
WHEN YOU ADOPTEDED RULE, 3800
B2, YOU REFERRED TO THE
PRESENTATION OF PRESENTED --
TO YOU AS DEFINING IT AS HARM
FULL ERROR ENTERED AS A RESULT
OF A SENTENCING PROCESS.$$!!!! THAT
IS WHAT IS IN YOUR OPINION.
AND I WOULD ALSO POINT OUT,
THAT SUBSEQUENT TO THE
ADOPTION OF THIS RULE THE
APPELLATE COURTS OF THIS STATE
HAVE REPEATEDLY CONSIDERED
THESE ISSUES, ON COMING UP ON
# 800 AND HAVE CONSIDERED THEM
TO BE PRESERVED SO THE
COURTS --
>> WHAT ISSUES ARE YOU.
>> BLAKE -- BLAKELY RESIDENCE
THEY HAVE CONSIDERED THEM
PROVEED IN THAT MATTER, THIS
CASE STANDS ALONE.
>> WHAT I'M CONCERNED ABOUT IS
THE WHAT JUSTICE PARIENTE
JUSTICE QUINCE -- WERE TALKING
-- HOW OPEN IS THE BARN?
WHEN YOU WHEN YOUR REFERRING
TO SENTENCING ISSUES?
DO WE GO BACK TO WHETHER THERE
WAS SOME HEARSAY QUESTION THAT
WAS BROUGHT IN, IN ORDER TO
AFFECT THE SENTENCE?
WELL I THINK IF YOU ARE
TALKING ABOUT MATTERS BEING
HEARD BEFORE A JURY, THAT
CERTAINLY EVIDENTIARY, MIGHT
COME UP DURING THAT I DON'T
KNOW HEARSAY WOULD -- I DON'T
KNOW HEARSAY WOULD BE ONE BUT
EVIDENTIARY ISSUES COULD
INDEED BE A FARC COULD RESULT
IN REVERSAL OF A SENTENCE
BASED ON THAT.
BUT IN TERMS OF HOW FAR WE ARE
HE OPENING THE DOOR, I DON'T
THINK WE ARE OPENING IT FAR IN
THIS CONTEXT, FOR A COUPLE OF
REASONS!!$$!!!!!!!!!!!!
REASONS, FIRST OF ALL THE VAST
MAJORITY OF THESE CASESE
POINTS GOING TO BE STIPULATED
TO IT IS VERY UNUSUAL, THAT
YOU ARE GOING TO HAVE A CASE
WHERE A DEFENDANT REQUIRES THE
STATE TO HOLD TO ITS BURDEN OF
PROOF!!$$!!!!!!!!
PROOF, SECOND OF ALL,
DEPENDING HOW YOUR HONORS
DECIDE MERITS AND I FREELY
CONCEDE STATE HAS MUCH
STRONGER ARGUMENT AS TO THE
PARDON AND AS TO THE LACK OF
REVERSAL THAN AS TO THE
PASSAGE OF TIME, IF YOUR
HONORS HOLD JUST THAT THE
PASSAGE OF TIME ENCOMPASSED
THAT IS SOMETHING THAT CAN BE
DONE YOU WITH A CHECK OFF BOX
FAIRLY EASY.
>> WHAT ABOUT THE CASES THAT
ROBINSON, McGREGOIRE HUE TODAY
ONNIS WHY AREN'T THOSE
APPLICABLE TO BE ABLE SAY
AAPPREHENDOE -- APPRENDI DIES
NIGHT PLY TO TRR, HFSC, THOSE.
>> HE FILL OF A ARE A LOT OF
NUMBERS OF KIDS A CITED BY
STATE CAME OUT PRIOR TO BLAKE!!$$!!!!!!!!
BLAKELY SECOND OF ALL, AS FAR.
>> CAME OUT PRIOR TO --
>> BLAKELY.
>> WERE WAS APPRENDI OUT WHEN
THOSE CASES WERE DECIDED.
>> WELL THEY SAY THAT APPRENDI
DOESN'T APPLY SO YES, IT WAS.
>> RIGHT.
SO I THINK THAT IS THAT IS ONE
ASPECT OF IT,SECOND I HAVEN'T
SEEN ANY OF THESE CASES, THAT
REALLY SPECIFICALLY ADDRESS
THE TIME LINE ISSUE, THE TIME
FRAME ISSUE, BECAUSE THAT IS
ONE WHERE CLEARLY, ONE OF THE
ELEMENTS THAT HAS TO BE PROVEN
THE DATE OF THE NEW OFFENSE
HAS NO RELATION TO THE PRIOR
OFFENSE AND I HAVEN'TS SEEN
ANY OF THESE CASES THAT
ADDRESS THAT THEY SWRAIK --
MAKE A BROAD GENERAL SWEEPING
PRONOUNCEMENT!!$$!!!!!!!!!!!!!!!!!!!!!!!!
PRONOUNCEMENT.
>> DID YOU BRING YOUR THOUGHTS
TO A CONCLUSION YOU ARE WELL
BEYOND YOUR TIME.
>> I WILL LAST THING I WILL
TOUCH ON JUSTICE CANTERO ASKED
THE QUESTION WHETHER WHAT IS
THE PURPOSE OF THE RULE AND I
THINK!!$$!!!!!!!!
THINK, WHERE THE STATE IS
GOING OFF ON TANGENT THEY ARE
SAYING IT IS EASY TO PROOF I
DON'T THINK THAT IS WHAT IT IS
ABOUT THERE'S LOTS OF THINGS
EASY TO PROOF MOST MURDER
CASES THE FACT THE $$VICTIM'S IS
DEAD TOEZ APPROVE YOU STILL
HAVE TO PROOF I IT, I THINK
I'M SPECULATE$$!!!!ING THE REASON
THEY DID THAT THE QUESTION OF
OF WHETHER THERE IS A
CONVICTION IS A QUESTION OF
LAW!!$$!!!!
LAW.
YOU HAVE GOT A NO CONTEST PLEA
A WITHHOLD OF ADJUDICATION IF
YOU HAVE GOT ALL THESE SORT OF
THING I THINK THEY ARE SAYING
WE'RE NOT GOING TO LEGALITY
JURIES DETERMINE THAT,ALL
THESE OTHER THINGS ARE ISSUES
OF FACT, AND THEREFORE THEY
HAVE TO BE PROVEN.
.
>> THANK YOU VERY MUCH WE WILL
TAKE THE CASE UNDER ADVISEMENT