People v. Meyerowitz

MR. CHIEF JUSTICE UNDERWOOD, dissenting:

I do not agree that McCabe’s retroactive effect must be so far extended as to require a refund of the fines and costs paid by these defendants.

As I understand the majority opinion, it relies principally upon Coin and Currency, Marchetti and Grosso in concluding that completely retroactive application of McCabe is required. I find that conclusion surprising since those decisions of the United States Supreme Court dealt with cases in which the conduct of the defendants could not, constitutionally, be punished at all, whereas McCabe involved admittedly punishable conduct, only the penalty for which was constitutionally impermissible. That there is a difference, and that such difference is significant in determining whether and to what extent retroactive effect will be accorded a decision, is evident throughout the several opinions in Coin and Currency.

While the majority cites our decisions in Hudson, Sarelli and Pullum as authority for the result reached, Hudson and Pullum involved defendants whose convictions were on direct appeal — only Sarelli, in my judgment, compels a conclusion that the judgments of conviction here must be vacated and probation terminated. That action imposes no substantial burden upon any governmental entity or agency. But refunding fines and costs will involve burdens the extent of which is uncertain for, if they must be refunded here where they were paid as a result of negotiated guilty pleas, they must also, I assume, be refunded in every other case, whether the judgments resulted from pleas or otherwise, and without limitation as to time or amounts. To this I cannot agree, for I am aware of no constitutional requirement necessitating such a result, and I find the arguments therefor unpersuasive.

I would affirm the judgment of the appellate court in No. 46588, and reverse the judgment of the appellate court in No. 46933 insofar as it reversed the judgment of the circuit court of Jackson County.