Another Misdemeanor-Felony Proportionality Argument
by: Ryan • January 18, 2011 • no comments
Following up on both Rankin's original post and my additional observations, I wanted to share a memorandum that should be filed when the state seeks to revoke a misdemeanor probation and give the defendant more than 60 days in custody.
While this memo is limited to situations where the defendant has not been convicted of a new offense, I assume revocation maximums come up fairly frequently around the state, especially in probations that have onerous requirements which the defendant simply is incapable of complying with. Hard for me to say, since it's very rare that I represent someone on a misdemeanor probation violation.
The state will argue that the proportionality clause is not violated because the felony revocation will have a post-prison supervision tail that the misdemeanor revocation would not. This argument has already been rejected by the COA. See this footnote from the memo: "The Koch court also expressly rejected the idea that the period of post-prison supervision imposed on the greater offense should be considered in determining if there is a proportionality problem. Koch at 230. Thus, any argument that a 60-day sentence on a felony revocation should be considered greater - due to a year of post-prison supervision - than a one-year misdemeanor revocation sentence would be without support."
Here is the memo. [Misdemeanor probation revocation proportionality].
Mootness is a problem with direct appeal, so you might have to go directly to the Supremes, which is hopefully an exciting prospect, as overworked as you probably are.
