So what are the issues around criminal episodes that the appellate courts will eventually address?
by: Ryan • November 19, 2013 • no comments
My first 5 blogposts for this website's predecessor were all about criminal episodes. A few years later and we still have many of the same issues.
(1) Is a finding of separate criminal episodes a jury (Blakely) question? State v. Mallory seemed to answer, yes, sometimes, in an opinion from years ago, but it's never been cited since. In the right case, the issue could make a very big deal at sentencing, but the issue is only rarely preserved.
A related question is whether a finding of a "sufficient pause" is a Blakely question. A sufficient pause, as you know, is what can keep repeated incidents of the same crime during one criminal episode from merging.
(2) Are different pieces of contraband found during the same search all from one criminal episode, regardless of when they were obtained? The Supreme Court says yes, in State v. Boyd. The Court of Appeals says no, in Orchard v. Mills. This can make a big difference when your client is charged with ten counts of Felon in Possession (and the guns are stored in different locations in the house) or a hundred counts of Encouraging Child Sexual Abuse (the photos all downloaded on different days). Someday the OSC will have to tackle this conflict head on.
(3) If a indictment contains more than one count, and the counts involve different types of crime, must there be language in the indictment alleging the same criminal episode or a common scheme or plan in order to keep the indictment from being subject to a demurrer? This is one of the topics at the December 2013 OCDLA conference.
Those are the big 3. As always, I'm available to answer questions about any of those topics.
