Monday, March 21, 2005

Blakely GVR's: Only one so far.

Doug Berman at Sentencing Law & Policy has this post today about Booker GVR's--cases in which the U.S. Supreme Court has granted certiorari, vacated, and remanded in light of Booker. More than 500 of them. (It would be interesting to see which, if any, of the interesting federal waiver / forfeiture decisions are among the lot, especially from the Fifth and Eleventh Circuits. That might provide some real information about the Supreme Court's views on the forfeiture of Booker / Blakely claims, possibly with implications for state forfeiture analysis. The vote lines might be interesting too.)

The Booker GVR's made me wonder about Blakely GVR's from state decisions. The first, of course, was Dilts v. Oregon, issued just a few days after Blakely, in which, on remand, the Oregon Supreme Court produced what I think is the best state court opinion on Blakely to date.

A Lexis search has produced only Dilts as a GVR from Blakely. Of course Dilts, like Blakely, raised an Apprendi objection in the trial court. There were not many cases pre-Blakely involving Apprendi objections, is my guess. And now, to get a Blakely GVR probably will take a case erroneously refusing to apply Blakely to a state sentencing scheme. And that kind of case will take a while to get out of the state courts.

Because Blakely did not address consecutive sentences, I'll bet that a state consecutive sentencing decision will get plenary consideration and not just GVR treatment. Smylie would be a good candidate among, I am sure, many. (When will the California Supreme Court speak in Towne and Black?)

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