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Articles by Dale Chappell

Sentencing Court’s Grant of Prior Custody Credit was Not ‘Clear Error’ to Allow for Removal

by Dale Chappell

The government’s “eleventh hour” motion to “correct” a sentence to remove credit for time served in a related case before federal sentencing was improperly granted by the district court, the U.S. Court of Appeals for the Fifth Circuit held November 16, 2017.

When Derrick Smothers, Terrell ...

Eleventh Circuit Holds Court May Not Dismiss 2255 Motion by Invoking Collateral Attack Waiver Sua Sponte

by Dale Chappell

A U.S. district court cannot, “of its own volition,” invoke a collateral attack waiver in a plea agreement to dismiss a § 2255 motion, the U.S. Court of Appeals for the Eleventh Circuit held on November 6, 2017.

“Efficiency can be a virtue, particularly ...

Texas Court of Criminal Appeals: Furtive Gestures, Brief Visit Not Probable Cause

by Dale Chappell

The Court of Criminal Appeals of Texas (“CCA”) held that “furtive gestures” alone did not give police probable cause to search a vehicle under the automobile exception to the Fourth Amendment’s warrant requirement.

When a marked police car pulled behind Andreas Marcopoulos’ truck, police said he made ...

N.C. Supreme Court Rules Deficient Indictment Not Jurisdictional and Issue Can’t be Raised for First Time on Appeal

by Dale Chappell

Deviations from statutory requirements are not jurisdictional and must be “properly preserved” for appellate review and not raised for the first time on appeal, the North Carolina Supreme Court held on November 3, 2017.

After Sandra Brice was found guilty by a jury in 2015 of habitual ...

West Virginia Supremes: Previous Nonviolent Crimes, Life Sentence Unconstitutional

by Dale Chappell

The Supreme Court of Appeals of West Virginia held that a life sentence based on two prior driving on a revoked license felonies violated the West Virginia Constitution’s provision that “[p]enalties shall be proportioned to the character and degree of the offence.”

After ...

Fourth Circuit: No Qualified Immunity for Deputies in Shooting of Armed Suspect

by Dale Chappell

An officer does not possess the unfettered authority to shoot a member of the public simply because that person is carrying a weapon,” the U.S. Court of Appeals for the Fourth Circuit said, upholding the district court’s denial of defendant deputies’ request for summary judgment ...

California Court of Appeal Holds State Must Prove Stolen Car’s Value for Felony Theft of Vehicle Conviction

by Dale Chappell

On January 23, 2018, the Court of Appeal of California, Fifth Appellate District, held that theft of a vehicle worth less than $950 was not a felony but a misdemeanor under Vehicle Code § 10851, which is subject to Proposition 47’s new petty theft provision—Penal Code ...

Even Prosecutors Can’t Get Secret List of L.A. Cops With Credibility Problems

by Dale Chappell

Los Angeles County Sheriff Jim McDonnell wants to give a secret list of approximately 300 untrustworthy cops to the Los Angeles County District Attorney’s Office, so prosecutors know who not to call as a law enforcement witness in a criminal case. The police union, however, is fighting ...

Sixth Circuit: Sentence Enhancement Inapplicable, Sales of Guns and Drugs Separate

by Dale Chappell

Where the negotiation of each transaction was “fully consummated” before the next, the sale of guns and drugs separately was not enough to apply a guideline enhancement, the Sixth Circuit held December 5, 2017.

Darryl Jackson sold drugs and guns to a confidential informant (“CI”), but not ...

Texas Supremes: Possession of Gun Does Not Constitute “Use” Under Forfeiture Statute

by Dale Chappell

The Supreme Court of Texas held that a Texas county commissioner’s misdemeanor conviction for possession of a firearm did not constitute “use” of a firearm under the forfeiture statute, and thus forfeiture was not authorized.

Mark Tafel, a former Hamilton County commissioner, was arrested for possession of ...




 

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