When is a felon not a felon?
Posted by David Hardy · 15 August 2012 09:31 AM
, 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.
· prohibitted persons
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