holding that an error under Blakely, 542 U.S. 296, 124 S.Ct. 2531, was structural and could never be harmless
How later courts described this case
- holding that an error under Blakely, 542 U.S. 296, 124 S.Ct. 2531, was structural and could never be harmless
- holding that to create a means for the jury, on remand, to decide aggravating sentencing factors "out of whole cloth would be to usurp the power of the legislature”
- holding that a procedure to impanel juries to find aggravating factors would usurp the power of the legislature
- stating that, when “determining] the amount of restitution, the trial court can either rely on a defendant’s acknowledgment or it can determine the amount by a preponderance of evidence”
Written by the judges who cited it.
Later courts went against this
Abrogated by Washington v. Recuenco, 548 U.S. 212 (2006)
Assigning the fact-finding role to the jury would be a procedural, as opposed to a substantive, change that would not expand the scope of criminal liability, increase punishment, or alter any evidentiary burdens to Jess’s detriment, see Rubino, 845 F.2d at 1274, but, rather, would “simply chang[e] the course to a result,” id. See Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 2549, 2553, 165 L.Ed.2d 466 (2006)…
The opinion
¶ 82 (concurring) — Had the defense in Daniel Hughes’ case challenged the credentials of the State’s expert witness at the restitution hearing, cross-examined, or introduced its own evidence on restitution, I think this case might well present a restitution issue worthy of consideration. However, on this record I must concur with the majority’s disposition.
Sanders, J.
Reconsideration denied July 26, 2005.