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8th District Roundup

Thirty-three decisions last week, over two-thirds criminal, and good lawyering abounds.

Take a look at State v. Weinstein, for example, where the 60-year-old defendant is stopped while driving around one of the local suburb's premier drug marts.  He consents to a search of his car, and the police find 30 Percocet pills in an unmarked bottle, $13,000 in his pocket, and .1 gram of marijuana.  He's charged with drug abuse in municipal court and pleads guilty.  A month later he's indicted for second-degree felony drug trafficking.  The 8th District affirms dismissal of that charge on double jeopardy grounds, quoting the entire transcript of the muni plea, and noting that nobody said a word about marijuana; the only reference to drugs was the defense attorney's stating that his client had a prescription for Percocet (although he didn't produce any evidence of this).  Oh, and did I mention that the lawyer also talked the muni judge into returning the $13,000?  Which means that the forfeiture specifications in the felony case go bye-bye, too.  That also means the attorney got paid, which is even better lawyering.

Then there's State v. Jones, where Jones had been involved in controlled buy of a kilo of coke.  In return for his testimony, the state dropped the 1st degree felony possession charge and major drug offender specification to a 4th degree preparation for sale and distribution.  Jones was given probation, which he promptly violated, and was sent off to do 17 months. 

All that was back in 2000.  In 2008, he filed a motion to withdraw the plea, noting that prep for sale isn't a lesser offense of possession.  It's not uncommon for a plea to be worked out where the defendant is pleading to something which actually isn't a lesser offense of what he's charged with, and there are some due process ramifications to that -- specifically, right to grand jury indictment and notice of the charges.  The courts have generally upheld this practice, so long as the court explains the nature of the offense he's pleading to, and the elements of that offense.  The court holds that the judge didn't do that here, and vacates the plea.

Why would a guy go back and vacate an 8-year-old plea that he'd already done the time on?  Turns out Jones has a federal case pending, and getting that plea vacated is going to be mighty helpful when it comes to calculating the criminal history that will affect his sentencing on that charge.

A few other decisions of note, one of which I'll discuss on Friday.  In State v. Carter, the defendant filed a motion claiming he was entitled to jail time credit for the period that he was at a residential facility.  The 8th reverses the denial of the motion, holding that the judge erred in not conducting a hearing to determine whether "restrictions on the participants [in the facililty] are so stringent as to constitute 'confinement' as contemplated by the legislature."  In State v. Cozart, the defendant argued his resisting arrest conviction should be reversed because the police lacked probable cause to arrest him; the court holds that he waived that issue by not filing a motion to suppress.  That's almost surely the wrong result; in fact, there's case law that a lawful arrest is an element that the state has to prove.  The court also held that the evidence clearly showed the cops did have probable cause, and it would have been better off to stick to that.

Last week I talked about how filing a civil suit waives the medical privilege only for those records that are causally or historically related to the claim.   In Wooten v. Westfield Ins., the insurance company proffered a medical authorization for plaintiff to sign, seeking all of her medical and pharmaceutical records for the past three years.  The court rules that a blanket authorization, limited only by time, was too broad, and the trial court should have held an in camera inspection to decide which records had to be turned over.   It further holds that the decision by the trial court on this question is reviewed de novo, not for abuse of discretion. 

The best part?  Westfield had asked the court to award sanctions for the appeal.  You know you've just been hammered when you asked the court to give you sanctions for the other side filing a frivolous appeal, and you lose the appeal.


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