Results 1 to 6 of 6

Thread: When is a felon not a felon?

  1. #1
    Campaign Veteran skidmark's Avatar
    Join Date
    Jan 2007
    Location
    North Chesterfield VA
    Posts
    10,682

    When is a felon not a felon?

    4th Circuit Court of Appeals changes its mind on the definition after having case remanded back to them by SCOTUS.

    A chink in the armor of the absolutists?

    stay safe.

    http://armsandthelaw.com/


    When is a felon not a felon?

    Posted by David Hardy 15 August 2012 09:31 AM
    Story here, and the ruling upon which it is based, here.
    As I read it: here in AZ, the legislature completely rewrote the criminal code in the 1970s, classifying felonies into six classes, and then with sentencing provisions specifying the presumptive, minimum, and maximum sentences for each class, plus aggravating factors. North Carolina took an approach much like the Federal one: leave the offenses with the traditional "shall be sentenced to five to ten years" clauses, then impose a general sentencing provision, i.e., crimes carrying a sentence of 5-10 years will in fact be sentenced in this manner for first offense, and that for second offense.
    In this case, the defendant had been convicted of small-time marijuana trafficking, first offense. The North Carolina statute on the offense said it was punishable by up to five years' imprisonment. But the general sentencing provisions said that would carry a sentence of more than a year only if the State pleads and proves aggravating conditions and a certain criminal history, which the State did not.
    Simmons was later caught possessing a firearm. So was his past conviction for a crime punishable by more than a year's imprisonment, the Gun Control Act definition of a felon, or was it not? The Fourth Circuit initially ruled that it was -- the only test was whether the specific criminal statute said more than a year, in fact, if it allowed more than a year for the most aggravated form of violation. The Supreme Court remanded, and the Fourth Circuit reconsidered and held that it was not a conviction punishable by more than a year's imprisonment.
    Permalink prohibitted persons Comments (0)
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

  2. #2
    Regular Member
    Join Date
    Aug 2007
    Location
    Granite State of Mind
    Posts
    4,510
    Remember when a man in California was sentenced to life in prison for stealing a candy bar? It was his third strike.

    Under the 4th's previous rulings, anyone stealing a candy bar would be a felon, because someone else might be able to receive life in prison for the same charge.

  3. #3
    Campaign Veteran skidmark's Avatar
    Join Date
    Jan 2007
    Location
    North Chesterfield VA
    Posts
    10,682
    Quote Originally Posted by KBCraig View Post
    Remember when a man in California was sentenced to life in prison for stealing a candy bar? It was his third strike.

    Under the 4th's previous rulings, anyone stealing a candy bar would be a felon, because someone else might be able to receive life in prison for the same charge.
    BZZZZZZZZZZZZZZZZZZZT! Wrong answer.

    The guy in California was sent up for having committed his third crime and thereby earned a "special enhancement" reserved only for those who accumulated three strikes. Most folks found guilty of stealing a candybar in California are convicted of a misdemeanor. The three-strikes law was an attempt to get those who just would not stop committing crimes off the streets - after accumulating two felony convictions in any lifetime the next conviction for any crime (spitting on the sidewalk, voting for Obama, etc.) moved you from having your wrist slapped to never having to worry again about where you next meal was coming from.

    What the 4th Circuit decision does is force the gooberment to actually live by their words. Codify a system of stair-stepped penalties under some umbrella indeterminate sentence structure means, apparently, that the penalty is only what the stair-step says and not what the umbrella says.

    leave the offenses with the traditional "shall be sentenced to five to ten years" clauses, then impose a general sentencing provision, i.e., crimes carrying a sentence of 5-10 years will in fact be sentenced in this manner for first offense, and that for second offense.
    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

  4. #4
    Regular Member
    Join Date
    Aug 2007
    Location
    Granite State of Mind
    Posts
    4,510
    Quote Originally Posted by skidmark View Post
    BZZZZZZZZZZZZZZZZZZZT! Wrong answer.

    The guy in California was sent up for having committed his third crime and thereby earned a "special enhancement" reserved only for those who accumulated three strikes. Most folks found guilty of stealing a candybar in California are convicted of a misdemeanor.
    "BZZZZZZZZZZZZZZZZZZZT! Wrong answer." right back atcha.

    Wikipedia isn't a source, but it's a great collection of sources, and I don't hesitate to quote Wikipedia's summary here:

    Some unusual scenarios have arisen, particularly in California the state punishes shoplifting and similar crimes involving under $950 in property as felony petty theft if the person who committed the crime has three prior convictions for any form of theft, including robbery or burglary and have served time in jail or prison for that offense. As a result, some defendants have been given sentences of 25 years to life in prison for such crimes as shoplifting golf clubs (Gary Ewing, previous strikes for burglary and robbery with a knife), or, along with a violent assault, a slice of pepperoni pizza from a group of children (Jerry Dewayne Williams, previous convictions for robbery and attempted robbery, sentence later reduced to six years).[10] In Rummel v. Estelle (1980), the Supreme Court upheld life with possible parole for a third-strike fraud felony in Texas, which arose from a refusal to repay $120.75 paid for air conditioning repair that was subsequently considered unsatisfactory.[11] Rummel was released a few months later, after pleading guilty.[12]
    In California, first and second strikes are counted by individual charges, rather than individual cases, so a defendant may have been charged and convicted of "first and second strikes", potentially many more than two such strikes, arising from a single case, even one that was disposed of prior to the passage of the law. Convictions from all 50 states and the federal courts at any point in the defendant's past, as well as juvenile offenses if the defendant was age 16 or older that would otherwise be sealed can be counted (although once a juvenile record is sealed, it cannot be "unsealed"; it does not exist any longer and there is no longer any record to be used as a prior conviction), regardless of the date of offense or conviction or whether the conviction was the result of a plea bargain. It is up to the prosecutor's discretion how many charges to levy against a defendant for a single criminal event.[13]
    http://en.wikipedia.org/wiki/Three_s..._in_California

  5. #5
    Campaign Veteran skidmark's Avatar
    Join Date
    Jan 2007
    Location
    North Chesterfield VA
    Posts
    10,682
    We seem to be saying te same thing in different ways. Stealing a candybar is a misdemeanor unless it is enhanced to a 3rd-strike offense which is then defined as a felony. Only folks with 2 previous strikes can have what is ordinarily a misdemeanor offense enhanced to a felony offense.

    This all is taking us off the focus of what the court case means. Apparently nobody else cares one way or another. Perhaps it is best if we stop here. Let me say "Thank you for playing. We have some lovely parting gifts for you which Johnny will now describe."

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

  6. #6
    Banned
    Join Date
    Jan 2012
    Location
    earth's crust
    Posts
    17,838
    Quote Originally Posted by KBCraig View Post
    Remember when a man in California was sentenced to life in prison for stealing a candy bar? It was his third strike.

    Under the 4th's previous rulings, anyone stealing a candy bar would be a felon, because someone else might be able to receive life in prison for the same charge.
    100,000 dollar bar ...

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •