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Showing posts from April, 2010

Sentencing Court has to Explain why it gave Consecutive Terms

State v. Hussein (HSC April 21, 2010)Background.Hussein pleaded guilty to 39 offenses.This included 8 counts of identity theft in the 2d degree, class B felonies, 4 counts of identity theft in the 3d degree (class Cs), 15 counts of forgery in the 2d degree (class Cs), 1 count of fraudulent use of credit card (a class C), and 7 counts of theft in the 2d degree (class C).Hussein was already serving a ten-year sentence (one ten-year term and two five-year terms concurrently).The State moved for the instance offenses to run consecutively with the one she was already serving.The circuit court granted the motion.Hussein appealed on the grounds that the sentence was unlawful and that her counsel was ineffective for not presenting mitigating factors at sentencing and for failing to file a motion to reduce the sentence.The ICA affirmed.No "Clear Evidence" that the Sentencing Court Failed to Consider General Sentencing Factors.The sentencing court has wide discretion in imposing a sen…

Family Court Cannot Mix and Mash Juvie Jurisdiction

In re N.C. (HSC April 19, 2010)Background. When N.C. allegedly committed sex acts with another child when N.C. was eight and nine years old. The prosecutor's office filed petitions against N.C. alleging that N.C. "violated or attempted to violate the law": three counts of sexual assault in the third degree. About a month later, the prosecutor's office amended the petition and added to each count that N.C. committed the offense of sexual assault in the third thereby bringing "him before [the family court] as a Person in Need of Supervision under sections 571-11(2) and 571-44[.]" After motions to dismiss were denied, the prosecutor and N.C. stipulated to submit evidence to the family court in lieu of testimonial evidence. The family court concluded that N.C. was a "status offender" and sentenced N.C. N.C. appealed. The ICA affirmed the family court.A Highly Technical Point: the Opening Brief Needs an Argument. The ICA refused to hear N.C.…

ICA Finds Middle Ground Between Mandatory and Directory Deadlines

Styke v. Sotelo (ICA March 31, 2010)Background. Styke had a fight with her boyfriend, Sotelo. Sotelo was prosecuted. Styke filed an ex parte petition for a temporary restraining order (TRO) against Sotelo. The motion was granted for 90 days on April 2, 2007 with an expiration date on July 3, 2007. The initial show-cause hearing was set for April 12, 2007. The hearing, however, was continued three times. The first continuance went from April 12 to April 19 because Styke was in the hospital. On April 19, the family court judge, Judge Bissen, recused himself because he recognized Styke and "did not have a positive view" of her. Sotelo moved to dismiss the TRO. That was denied and the hearing was continued a 2d time to April 26 before Judge Geronimo Valdriz. On April 26, Judge Valdriz denied Sotelo's renewed motion to dismiss and Judge Valdriz realized he presided over the preliminary hearing in Sotelo's prosecution and recused himself. The hearing was contin…