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Case Update

Here's an interesting twist to my post last week about standards of review:  what about a writ of habeas corpus to an appeals court challenging a trial court's setting of bond?  That arose last week in Ahmad v. Plummer, where Ahmad had filed a habeas corpus petition with the 1st District arguing that his bond was excessive.  That court had said that although it might have given a lower bond, the trial court didn't abuse its discretion in setting it at $3 million. 

Wait a minute, said Ahmad in his appeal to the Supreme Court:  how can a court use an appellate standard of review, and an extremely deferential one at that, in an original action?  Turns out that habeas is a hybrid action:  the appellate court considers the matter de novo, but some weight has to be given to the trial court's action.  And since Ahmad "is recorded on multiple audio recordings making arrangements to hire a hit-man to kill his ex-wife," he'll be staying right where he is for now, unless he hits the lottery.

The only other news out of Columbus was the denial of a motion to reconsider or clarify in State v. Bodyke (discussed most recently here)Justices Cupp and O'Donnell dissented, arguing that the court should at least clarify that Bodyke doesn't apply "to cases in which there is no prior court order classifying the defendant into a sex-offender category that existed under Megan's Law."  That's a logical position:  Bodyke held that reclassification was a violation of separation of powers because it involved the executive branch changing a judicial order, but if there's no judicial order to begin with, there's no separation of powers problem.  The other five justices might have felt that this was so logical a position that clarification wasn't needed. 

In the courts of appeals...

Criminal.  Statement to jailhouse informant by co-defendant admitting shooting is admissible against defendant, says 1st District; not hearsay because rule excludes from definition statement made by co-conspirator... Handcuffing suspect does not necessarily turn detention into an arrest, says 2nd District; officer must have intent to arrest, rather than intent to simply preserve status quo until backup arrives for further investigation... Even though jury acquitted defendant of drunk driving, it could have found that defendant's alcohol consumption was sufficient evidence to establish recklessness for aggravated vehicular homicide, says 10th District... 8th District holds that with dismissal of indictment with prejudice requires finding that "defendant has been denied a constitutional or statutory right, the violation of which would, in itself, bar prosecution"... 2nd District rules that while state violated plea bargain by essentially recommending life sentence without parole in child-rape case, counsel's failure to object requires plain error review, and defendant can't show that judge wouldn't have imposed life without parole sentence anyway... 3rd District says that in sentencing defendant to community control sanctions, judge must notify offender of specific term which will be imposed for violation; "the maximum," "6-12 months," or "up to 12 months" is not sufficient... 12th District permits amendment of indictment to allege crime was 3rd degree felony; indictment included all of proper elements, but included typo that crime was 4th degree felony...

Civil.  In contrast to ruling last week by 3rd District that allowance of late answer without a showing of excusable neglect is abuse of discretion, 8th District allows late answer simply upon claim that defendant had only recently obtained counsel, says that when party answers out of rule but before default, default should not be granted if answer is "good in form and substance"... 10th District reverses and remands case where parties had stipulated that findings of fact by magistrate would not be subject to objection in trial court, but could be appealed to court of appeals; courts will not enforce stipulation which runs "directly contrary to the clear import of a rule of civil procedure"... Warning to appellate counsel:  if you order only the part of the transcript where error supposedly occurs, you run risk of appellate court deciding that entire record is necessary to determine prejudice, as 9th District did here... Discovery sanctions only apply to specific instances enumerated in CivR 37(A)(4), do not apply to attorney fees incurred in obtaining order for physical or mental exam under CivR 35(A), says 12th District...

Bullshit traffic stop(s) of the week.®  In State v. Habel, the police stop the defendant for riding her bicycle on the sidewalk and, when she can't provide identification, place her in the police cruiser.  Of course, before they do that, they have to pat her down, and somehow the search for weapons produces a single gel capsule containing heroin.  The judge throws it all out, and the 2nd District affirms, finding that "given the facts of this case, for a non-arrestable offense it does not appear that there was any justification, other than mere convenience, to frisk Habel before placing her in the cruiser to verify her identity."  But in State v. Lovins, the 2nd District upholds a patdown which followed with a stop for jaywalking.  Case also involved seizure of single gel capsule containing heroin.

Now that's harmless error.  In State v. Kline, the defendant argued that the trial court erred in believing that it had to impose life sentences without parole consecutively.


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