Blakely and its application in Indiana just keeps on surprising. One of last week's cases, Morrison v. State, Court of Appeals No. 49A02-0403-CR-216 (Ind. Ct. App. March 31, 2005), makes the following startling maneuver: 1) it sua sponte vacates two of four convictions on state double jeopardy grounds; and then 2) affirms the sentences on the other two convictions over a Blakely challenge, because the facts supporting the enhancement to one of the sentences were (only arguably) elements of the two vacated convictions and therefore proven to a jury beyond a reasonable doubt.
My immediate reaction to this maneuver is that is at least contrary to the well-established rule, relied upon all the time, that when a conviction is reversed on appeal, the parties are restored to the position they occupied before the judgment. E.g., Gibson v. State, 661 N.E. 865, 867 (Ind. Ct. App. 1996) ("[T]he effect of a reversal of a judgment is to vacate and nullify the judgment, which restores the parties to the position they held before judgment." (Citation omitted).) To me, that means there are no jury findings from the vacated ("nullified") convictions on which the Court of Appeals may properly rely to affirm the enhanced sentence.
I will note that in Gibson, the application of this well-established rule benefited the State.
Blakely just keeps on doing damage as this state's appellate judging corps seeks new and ever more ingenious ways to avoid its requirements--when it wants to. It has almost driven me to wish that the Supreme Court had said in Smylie that Blakely does not apply to Indiana sentencing. Almost.
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