Blog:Main/On Supervision at the Time of the Offense - Revision history

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Abassos@mpdlaw.com at 20:02, February 3, 2013

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Abassos@mpdlaw.com at 20:01, February 3, 2013

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The Oregon Supreme Court opinion in [/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors ''State v. Speedis''] eviscerated the primary legal challenge to the upward departure factor of "on supervision at the time of the offense." (But it's worth noting that some challenges to [/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors other non-enumerated factors remain].)

Still, this is one aggravating factor that shouldn't worry you. The threat of it really shouldn't be a reason to fold your cards and go home, especially if you've got a triable case.

Why? Because if you do court-appointed work, almost of your felony clients are on supervision when they commit a new crime. And that's the key to keeping your client from being upward departed.

As I've noted in my dwindling [[Blog:Main/objections_Upward_Departures|list of viable challenges]][http://mpdtrainer.wordpress.com/2010/12/19/objections-to-upward-departures/ ]to upward departure factors, the most important challenge isn't in dispute. Even assuming the state can prove that your client is on supervision, ORS 138.222(3)(b) requires the trial judge to give reasons for upward departure that are substantial and compelling. [http://scholar.google.com/scholar_case?case=14793830931348502728&q=wilson+1992&hl=en&as_sdt=400000000004 ''State v. Wilson''], 111 Or. App. 147, 826 P2d 1010 (1992) ("Under ORS 138.222(3)(b), we review whether the reasons given by the court are appropriate. That review is limited to whether the reasons are substantial and compelling.")

The ''Wilson'' Court explained that it would review the trial court's "explanation of why the circumstances are '''so exceptional''' that imposition of the presumptive sentence would not accomplish the purposes of the guidelines." [Emphasis added.]

Question: how is being "on supervision" an exceptional fact that merits an upward departure? When was the last time that someone who was, for example, a repeat property offender wasn't on supervision at the time of the newest crime? If 75% of REPO defendants were on supervision, that's not exceptional.

And the burden is on the state - and the judge - to show that the circumstances are - not just exceptional - ''so exceptional''.

And I think it's worth noting that the legislature made "on supervision" a reason to deny optional probation in some cases, but it didn't enumerate "on supervision" as a reason to upward depart. Okay, fine, the legal challenge to that particularly non-enumerated factor no longer exists, but the common sense rule would still work with most judges. Yes, the defendant has done this before, and not that long ago. But that's why he/she is going to prison. And it's not like the typical probation includes any meaningful supervision anymore. You can't betray the hard work of a probation officer you've never met.
{{wl-publish: 2011-08-09 21:00:00 -0700 | Ryan }}

← Older revision		Revision as of 19:06, August 9, 2013
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	And I think it's worth noting that the legislature made "on supervision" a reason to deny optional probation in some cases, but it didn't enumerate "on supervision" as a reason to upward depart. Okay, fine, the legal challenge to that particularly non-enumerated factor no longer exists, but the common sense rule would still work with most judges. Yes, the defendant has done this before, and not that long ago. But that's why he/she is going to prison. And it's not like the typical probation includes any meaningful supervision anymore. You can't betray the hard work of a probation officer you've never met.		And I think it's worth noting that the legislature made "on supervision" a reason to deny optional probation in some cases, but it didn't enumerate "on supervision" as a reason to upward depart. Okay, fine, the legal challenge to that particularly non-enumerated factor no longer exists, but the common sense rule would still work with most judges. Yes, the defendant has done this before, and not that long ago. But that's why he/she is going to prison. And it's not like the typical probation includes any meaningful supervision anymore. You can't betray the hard work of a probation officer you've never met.
−	{{wl-publish: 2011-08-09 21:00:00 -0700 \| Ryan }}	+	{{wl-publish: 2011-08-09 21:00:00 -0700 \| Ryan:Ryan Scott }}

@@ Line 5: / Line 5: @@
 Why? Because if you do court-appointed work, almost of your felony clients are on supervision when they commit a new crime. And that's the key to keeping your client from being upward departed.
-As I've noted in my dwindling [[Blog:Main/Objections_to_Upward_Departures |  list of viable challenges]][http://mpdtrainer.wordpress.com/2010/12/19/objections-to-upward-departures/  ]to upward departure factors, the most important challenge isn't in dispute. Even assuming the state can prove that your client is on supervision, ORS 138.222(3)(b) requires the trial judge to give reasons for upward departure that are substantial and compelling. [http://scholar.google.com/scholar_case?case=14793830931348502728&q=wilson+1992&hl=en&as_sdt=400000000004 ''State v. Wilson''], 111 Or. App. 147, 826 P2d 1010 (1992) ("Under ORS 138.222(3)(b), we review whether the reasons given by the court are appropriate. That review is limited to whether the reasons are substantial and compelling.")
+As I've noted in my dwindling [[Blog:Main/Objections_to_Upward_Departures |  list of viable challenges]] to upward departure factors, the most important challenge isn't in dispute. Even assuming the state can prove that your client is on supervision, ORS 138.222(3)(b) requires the trial judge to give reasons for upward departure that are substantial and compelling. [http://scholar.google.com/scholar_case?case=14793830931348502728&q=wilson+1992&hl=en&as_sdt=400000000004 ''State v. Wilson''], 111 Or. App. 147, 826 P2d 1010 (1992) ("Under ORS 138.222(3)(b), we review whether the reasons given by the court are appropriate. That review is limited to whether the reasons are substantial and compelling.")
 The ''Wilson'' Court explained that it would review the trial court's "explanation of why the circumstances are '''so exceptional''' that imposition of the presumptive sentence would not accomplish the purposes of the guidelines." [Emphasis added.]

← Older revision		Revision as of 20:01, February 3, 2013
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−	The Oregon Supreme Court opinion in [[Blog:Main/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors ''State v. Speedis'']] eviscerated the primary legal challenge to the upward departure factor of "on supervision at the time of the offense." (But it's worth noting that some challenges to [[Blog:Main/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors\|here]] .)	+	The Oregon Supreme Court opinion in [[Blog:Main/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors \| ''State v. Speedis'']] eviscerated the primary legal challenge to the upward departure factor of "on supervision at the time of the offense." (But it's worth noting that some challenges to [[Blog:Main/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors\|here]] .)

	Still, this is one aggravating factor that shouldn't worry you. The threat of it really shouldn't be a reason to fold your cards and go home, especially if you've got a triable case.		Still, this is one aggravating factor that shouldn't worry you. The threat of it really shouldn't be a reason to fold your cards and go home, especially if you've got a triable case.

← Older revision		Revision as of 20:01, February 3, 2013
Line 1:		Line 1:
−	The Oregon Supreme Court opinion in [/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors ''State v. Speedis''] eviscerated the primary legal challenge to the upward departure factor of "on supervision at the time of the offense." (But it's worth noting that some challenges to [[Blog:Main/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors\|here]] .)	+	The Oregon Supreme Court opinion in [[Blog:Main/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors ''State v. Speedis'']] eviscerated the primary legal challenge to the upward departure factor of "on supervision at the time of the offense." (But it's worth noting that some challenges to [[Blog:Main/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors\|here]] .)

	Still, this is one aggravating factor that shouldn't worry you. The threat of it really shouldn't be a reason to fold your cards and go home, especially if you've got a triable case.		Still, this is one aggravating factor that shouldn't worry you. The threat of it really shouldn't be a reason to fold your cards and go home, especially if you've got a triable case.

@@ Line 1: / Line 1: @@
-The Oregon Supreme Court opinion in [/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors ''State v. Speedis''] eviscerated the primary legal challenge to the upward departure factor of "on supervision at the time of the offense." (But it's worth noting that some challenges to [/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors other non-enumerated factors remain].)
+The Oregon Supreme Court opinion in [/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors ''State v. Speedis''] eviscerated the primary legal challenge to the upward departure factor of "on supervision at the time of the offense." (But it's worth noting that some challenges to [[Blog:Main/A_Comment_on_Speedis_and_Non-Enumerated_Aggravating_Factors|here]] .)
 Still, this is one aggravating factor that shouldn't worry you. The threat of it really shouldn't be a reason to fold your cards and go home, especially if you've got a triable case.
@@ Line 5: / Line 5: @@
 Why? Because if you do court-appointed work, almost of your felony clients are on supervision when they commit a new crime. And that's the key to keeping your client from being upward departed.
-As I've noted in my dwindling [[Blog:Main/objections_Upward_Departures|list of viable challenges]][http://mpdtrainer.wordpress.com/2010/12/19/objections-to-upward-departures/  ]to upward departure factors, the most important challenge isn't in dispute. Even assuming the state can prove that your client is on supervision, ORS 138.222(3)(b) requires the trial judge to give reasons for upward departure that are substantial and compelling. [http://scholar.google.com/scholar_case?case=14793830931348502728&q=wilson+1992&hl=en&as_sdt=400000000004 ''State v. Wilson''], 111 Or. App. 147, 826 P2d 1010 (1992) ("Under ORS 138.222(3)(b), we review whether the reasons given by the court are appropriate. That review is limited to whether the reasons are substantial and compelling.")
+As I've noted in my dwindling [[Blog:Main/Objections_to_Upward_Departures |  list of viable challenges]][http://mpdtrainer.wordpress.com/2010/12/19/objections-to-upward-departures/  ]to upward departure factors, the most important challenge isn't in dispute. Even assuming the state can prove that your client is on supervision, ORS 138.222(3)(b) requires the trial judge to give reasons for upward departure that are substantial and compelling. [http://scholar.google.com/scholar_case?case=14793830931348502728&q=wilson+1992&hl=en&as_sdt=400000000004 ''State v. Wilson''], 111 Or. App. 147, 826 P2d 1010 (1992) ("Under ORS 138.222(3)(b), we review whether the reasons given by the court are appropriate. That review is limited to whether the reasons are substantial and compelling.")
 The ''Wilson'' Court explained that it would review the trial court's "explanation of why the circumstances are '''so exceptional''' that imposition of the presumptive sentence would not accomplish the purposes of the guidelines." [Emphasis added.]