Monday, August 09, 2004

Calling All Michiganders

The Michigan Supreme Court has already said that Blakely does not affect the state’s guidelines. Not all the judges in Michigan agree, however (And it's not the first time either). Take a look at this footnote from People v. Ellis, 2004 Mich. App. LEXIS 2065(No. 246709) (Mich. Ct. App., Aug. 3, 2004)(per curiam):

n25 MCL 777.36(2)(a). We note that MCL 777.36(2)(a) appears on its face to be in opposition to the recent United States Supreme Court decision of Blakely v Washington, US ; S. Ct. ; L. Ed. 2d ; 72 USLW 4546 (June 24, 2004), as the statute explicitly allows a sentencing court to consider factors not before the jury. However, a majority of the Michigan Supreme Court recently decided that Blakely does not apply to Michigan's indeterminate sentencing guidelines in which the maximum sentence is set by law. People v Claypool, Mich. ; N.W.2d (Docket No. 122696, decided July 22, 2004), slip op at 17, n 14 (Justices Cavanagh, Weaver and Young concurred with Justices Taylor and Markman, writing for the Court, that Blakely is inapplicable in Michigan).

Here’s the Michigan statute the footnote refers to:

§ 777.36. Intent to kill or injure another individual.

Sec. 36. (1) Offense variable 6 is the offender's intent to kill or injure another individual. Score offense variable 6 by determining which of the following apply and by assigning the number of points attributable to the one that has the highest number of points:

(a) The offender had premeditated intent to kill or the killing was committed while committing or attempting to commit arson, criminal sexual conduct in the first or third degree, child abuse in the first degree, a major controlled substance offense, robbery, breaking and entering of a dwelling, home invasion in the first or second degree, larceny of any kind,extortion, or kidnapping or the killing was the murder of a peace officer or a corrections officer..... 50 points

(b) The offender had unpremeditated intent to kill, the intent to do great bodily harm, or created a very high risk of death or great bodily harm knowing that death or great bodily harm was the probable result........................ 25 points

(c) The offender had intent to injure or the killing was committed in an extreme emotional state caused by an adequate provocation and before a reasonable amount of time elapsed for the offender to calm or there was gross negligence amounting to an unreasonable disregard for life........... 10 points

(d) The offender had no intent to kill or injure. 0 points

(2) All of the following apply to scoring offense variable 6.

(a) The sentencing judge shall score this variable consistent with a jury verdict unless the judge has information that was not presented to the jury.

(b) Score 10 points if a killing is intentional within the definition of second degree murder or voluntary manslaughter, but the death occurred in a combative situation or in response to victimization of the offender by the decedent.

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