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Articles by Dale Chappell

New Mexico Supreme Court: Seriousness of Charged Crime Itself Not Sufficient to Deny Defendant Pretrial Release

by Dale Chappell

A court must not automatically consider any single factor to be dispositive when deciding whether to deny or grant pretrial release, but must consider several factors on the record to determine if an accused must be detained, the New Mexico Supreme Court held.

Mariah Ferry, having been ...

Iowa Supreme Court: Relief from Conviction Not Required When Suing for Legal Malpractice Based on Wrongful Sentence

by Dale Chappell

In an issue of first impression in Iowa, the Supreme Court of Iowa held that relief from a wrongful sentence is enough to allow a legal malpractice claim regarding that sentence, and the defendant need not obtain relief from the underlying conviction.

Having spent an extra year ...

South Dakota Supreme Court Announces Search Incident to Arrest Exception to Warrant Requirement Does Not Apply to Collection of Urine Sample Upon Arrest

by Dale Chappell

Law enforcement must secure a warrant prior to obtaining a urine sample from an arrestee, the Supreme Court of South Dakota held in an issue of first impression before the Court.

Hi Ta Lar was arrested after a lawful traffic stop turned up some marijuana and a ...

New Mexico Supreme Court: Seriousness of Charged Crime Itself Not Sufficient to Deny Defendant Pretrial Release

by Dale Chappell

A court must not automatically consider any single factor to be dispositive when deciding whether to deny or grant pretrial release, but must consider several factors on the record to determine if an accused must be detained, the New Mexico Supreme Court held.

Mariah Ferry, having been charged with first-degree murder, was granted pretrial release after the court determined that, while the crimes were “gruesome and heinous,” that alone was not enough to keep Ferry in jail until trial. The State disagreed and appealed that decision to the New Mexico Supreme Court.

On appeal, the State argued that the district court erroneously concluded that the nature of the charges, “no matter how serious the crime,” are “never sufficient” to prove a defendant’s future dangerousness and thus denial of pretrial release. The Supreme Court observed that is one reasonable interpretation of the district court’s ruling. However, another reasonable interpretation is that it did consider the seriousness of the charges and nevertheless concluded that certain conditions of release could still reasonably protect the community.

New Mexico law provides that bail may be denied by a court if the State proves “by clear and convincing evidence” that the defendant poses ...

Texas Court of Criminal Appeals Announces ‘Finality’ Under Sentence Enhancement Provision for Out-of-State Convictions Governed by Texas Law

by Dale Chappell

“Finality” of an out-of-state conviction to support an enhanced sentence depends on whether Texas State law would consider that prior conviction “final,” not on the particular state of conviction, the Court of Criminal Appeals of Texas held, finding a suspended sentence in California cannot serve as the basis for an enhanced sentence under the habitual-offender provision of Texas Penal Code § 12.42(d).

Jeremy Pue filed an application for writ of habeas corpus in the Court of Criminal Appeals, claiming that his enhanced sentence based on his prior California suspended sentence for a controlled substance offense was not “final” and thus cannot serve to enhance his sentence as a habitual offender. Because it exceeded the statutory maximum, absent the enhancement, Pue argued that his sentence was illegal. The Court agreed and vacated his sentence.

A claim that a sentence is illegal because it exceeds the statutory maximum for the offense is cognizable in a writ of habeas corpus and may be raised at any time, even if it was not raised on direct appeal. Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006). Texas Penal Code § 12.42(d) provides that an enhanced sentence may be imposed if ...

Montana Supreme Court Holds Failure to Instruct Jury on State’s Burden of Proof is Plain Error

by Dale Chappell

It is plain error when a trial court fails to instruct the jury on the burden of proof for justifiable use of force and who carries that burden, even if the error was not preserved for review on appeal, the Supreme Court of Montana held December 19, 2017.

At his trial for misdemeanor assault, Lee Akers raised the affirmative defense that he had acted in self-defense during an altercation. A jury found Akers guilty of assault, and he appealed to the Montana Supreme Court.

On appeal, Akers raised for the first time that the trial court failed to instruct the jury that it was the State’s burden to prove beyond a reasonable doubt that he had not acted in self-defense, after he raised the affirmative defense of self-defense at trial. The State argued that since Akers did not raise the issue before, he failed to preserve it for review on appeal.

The Supreme Court disagreed, holding that the trial court’s failure to instruct the jury on the burden of proof was plain error and reviewable even if not preserved for appeal.

Generally, an appellate court does not address issues raised for the first time on appeal; however, ...

Eleventh Circuit Holds Florida Drug Trafficking Statute Indivisible and Overbroad for Removal Under Immigration and Nationality Act

by Dale Chappell

In a major decision that may affect thousands with a prior Florida drug trafficking conviction, the U.S. Court of Appeals for the Eleventh Circuit held that Florida’s drug trafficking statute under Fla. Stat. § 893.135 is indivisible and overbroad, and therefore not a “match” with its federal counterpart under the Controlled Substance Act (“CSA”).

After Natalia Cintron, a native of Argentina, was convicted for “trafficking in illegal drugs” under Fla. Stat. § 893.135(1)(c), the U.S. Department of Homeland Security began proceedings to deport her. When an immigration judge ordered her deportation, finding that Cintron’s conviction under § 893.135(1)(c) was a “drug trafficking crime” under the Immigration and Nationality Act (“INA”), Cintron appealed to the Board of Immigrations Appeals (“BIA”). The BIA found that § 893.135(1)(c) was divisible and that Cintron’s conviction qualified as a drug trafficking crime, requiring her deportation. Cintron appealed to the Eleventh Circuit.

The INA requires deportation of an alien who is convicted of an “aggravated felony,” which includes a “drug trafficking crime,” defined under the federal CSA as manufacturing, distributing, or possessing with intent to do so. Mere possession or purchase of drugs in not enough. Fla. Stat. § 893.135(1)(c) provides that a ...

Washington Supreme Court: Nexus Between Property Searched and Probation Violation Required for Warrantless Search of Probationer’s Property

by Dale Chappell

Probationers have a limited, but constitutionally protected, privacy interest that does not permit community correction officers (“CCO”) to conduct open-ended property searches. Instead, the warrantless search must be connected to a suspected violation of a probation condition, the Supreme Court of Washington held, settling a circuit split within the state.

After Curtis Cornwell failed to report to his CCO, a warrant was issued for his arrest. Police stopped Cornwell’s vehicle based solely on the warrant, and a CCO was called to search his property. The CCO found drugs in a bag in the vehicle, and Cornwell was arrested on new charges for the drugs, as well as the probation violation.

Cornwell moved to suppress evidence obtained during the search of his car. The trial court denied his motion, stating that any subjective expectation of privacy was not “objectively reasonable” since he was on probation and thus entitled to a reduced expectation of privacy.

At the trial, the CCO testified that he searched the vehicle “to make sure there’s no further violations of his probation.” He further testified that “if there’s anything in the vehicle, whether it is in a suitcase, clothing, I’m going to go through those ...

Missouri High Court Holds Checkbox-Style Search Warrant Constitutes an Unconstitutional General Warrant

by Dale Chappell

A search warrant with checkboxes generally describing the purpose of the warrant lacked particularity and probable cause and was an unconstitutional “general search warrant,” the Supreme Court of Missouri held. The Court affirmed the defendants’ motions to suppress all evidence seized in connection with the defective warrant.

After Jennifer Gauter and Phillip Douglass were accused of burglarizing a home, the Kansas City police applied for a search warrant to search their residence to check for the stolen items. The search warrant prepared by a detective had checkboxes that generally described the items to be seized and the reason for the warrant, including a checkbox authorizing officers to seize a “deceased human fetus or corpse, or part thereof.” The warrant also listed in detail some of the items that were allegedly stolen from the home. All of the boxes were checked, including the corpse box, and the judge approved the warrant.

Gauter and Douglass were charged with burglary in the second degree and felony stealing, after police recovered several of the items listed in the warrant, but not the corpse. The pair filed pretrial motions to suppress the evidence, arguing that the warrant was invalid because the police ...

Kansas Supreme Court: Judge’s ‘Thwarting’ of Defendant’s Right to Self-Representation was Structural Error Requiring Reversal of Convictions

by Dale Chappell

A defendant who “unequivocally” invoked his right to self-representation at trial and was denied that right when the judge ignored his requests got a new trial when the Supreme Court of Kansas held that it constituted a “structural error.”

Josiah Bunyard was “very active” in his defense. At a pretrial hearing before his trial was about to begin, he noticed his lawyer was overlooking something he believed to be crucial, so he spoke up. “You Honor, could I please be heard?” he interrupted. “Mr. Bunyard, you have appointed counsel ... so you’re either having [counsel] argue this case—or you are representing yourself? Which is it?” the judge responded. “I’ll represent myself, if that’s the choice,” Bunyard replied.

The court recessed to let Bunyard talk to his lawyer, and when the court reconvened, Bunyard stated, “I want it on the record I wish to represent myself unequivocally.” The judge refused to acknowledge Bunyard’s demand and told him he had to “file a proper motion” to be heard in court. Since it was Friday, Bunyard said, “there’s no mail going out for the weekend. There’s no way I can get it” to the court. The courtroom deputy stepped in ...


Federal Prison Handbook


Disciplinary Self-Help Litigation Manual


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