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Case Update

The Columbus Seven had a quiet week going into Memorial Day, and will probably have a quiet one coming out of it, too.  Things pick up after that, with oral arguments starting on September 14.  The court has some interesting stuff on tap, including a bizarre disciplinary proceeding and cases on restitution and whether a judge has to advise a witness of her 5th Amendment privilege before testifying, but most eyes will be fixed on the arguments on the 15th, when State v. Hodge -- whether Oregon v. Ice overruled State v. Foster regarding consecutive sentencing -- comes up.

And, of course, we're just four weeks away from the beginning of SCOTUS's 2010 term, with arguments scheduled for the week beginning October 4th.  Again, the big one there will be the following day, when the Court takes up Michigan v. Bryant, concerning the scope of the "ongoing emergency" standard for determining whether a victim's statement is testimonial under Crawford v. Washington and Davis v. Washington.  I'll have more on that next week, knowing that my anticipation is matched only by yours.

On to the courts of appeals...

Criminal.  Failure to inform defendant of mandatory fine does not render guilty plea involuntary, says 1st District, where record does not show that but for error, defendant would not have pled guilty (and see Tip of the Day below)... 6th District upholds trial court's allowance of detective's testimony as "gang expert" as to why witnesses would not want to testify... 8th District says if police have reasonable suspicion that occupant of vehicle is armed, they have right to search those areas of passenger compartment that could contain a weapon...  Hearsay exception for statements of co-conspirators applies to both indicted and unindicted co-conspirators, 1st District rules... Sexual battery (victim's ability to appraise or control conduct substantially impaired) is a lesser included offense of rape (victim's ability to resist or consent substantially impaired), says 8th District...  10th District grants rare reversal of denial of motion to withdraw plea; excellent discussion of subject... 12th District says reversal not required where juror was not a US citizen, improperly seating juror not structural error... Officer's actions in parking behind defendant did not amount to detention, says 9th District...

Civil.  Builder files suit individually, court dismissed with prejudice because claim is actually on behalf of an LLC, LLC files suit, court dismisses on basis of res judicata; 2nd District holds that doctrine shouldn't be applied where it would "defeat the ends of justice"... Cases you won't see in the 8th District:  5th District upholds grant of summary judgment, says homeowners could not have reasonably known of danger of plaintiff falling through hay drop...

Tip for the day.  Did you know that if a defendant is facing a mandatory fine in a drug case, it is error for the trial court not to impose the fine, unless (1) the defendant files an affidavit with the court prior to sentencing (formally files it with the clerk's office; just handing it to the judge isn't good enough) that the defendant is indigent and unable to pay the mandatory fine, and (2) the court determines that the offender is in fact an indigent person and is unable to pay the mandatory fine.  I didn't, either.  But that's what the Supreme Court said in State v. GibsonIn fact, the 1st District has held that the failure to impose the mandatory fine if the defendant doesn't meet those requirements renders the sentence void.  Which of course renders the conviction void.

In Federal cases, a large factor in determining the sentence is the defendant's "criminal history category."  A cottage industry has arisen among people defending Federal criminal cases to dig through a client's prior convictions to determine whether PRC was properly imposed, whether there was a Baker violation (no final order because the conviction and sentence weren't in the same entry), and the like, because if it wasn't, you've got a void conviction which can't be used to enhance your client's criminal history.  Well, you've now got one more.

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