Montana judge defends 30-day sentence for rape

[dps]

You are allowed to say whatever you want. Doesn't make for a convincing argument.

I'm not sure what argument you think that I was making, exactly as far as public policy is concerned.  I asked Meri a question about a position she had taken, and stated an opinion as to my perception of what most posters here seem to think.  I did say that I am pretty much in favor of with Ide's suggestions, but if you're opposed to those, perhaps you should take it up with him, not me.

[OttoVonBismarck]

Hm, interesting developments.

The original deal between the prosecutor and Rambold was a deferred prosecution, in which the charges would have gone away if he had followed the program he was in. That made his punishment completely valid under State law, as he wasn't being convicted of any crime there's really no "minimum sentencing" guidelines for a non-conviction.

However, since he violated that deal, Judge Baugh seems to have based his sentence off the format of the previous deal. He looked at what Rambold was facing, and decided in light of his breaking the terms of his deal he'd have to do a brief stint in jail but wouldn't get the 20 year (10 year suspended) sentence the prosecution was seeking.

Judge Baugh however made an error of law in this decision, as in Montana the mandatory minimum for the crime that Rambold had now plead guilty to was two years, meaning the thirty day sentence was illegal. In Montana, you cannot suspend a sentence beyond the mandatory minimum, so if Rambold had been sentenced to 5 years three of those years could have been suspended, but no more than that. Baugh has recognized his own error, and called a new hearing for this Friday presumably to resentence Rambold to at least a two year sentence to be in compliance of the law.

But it's unclear if that will actually "work" because legally in Montana an illegal sentence is supposed to be rectified through the appeals process (the prosecutor had already planned to file an appeal of the sentence on the basis of the two year mandatory minimum.) So while Baugh may be attempting to fix his error, he may not actually have that option. Rambold's attorney is basically saying they are in very unclear waters as a matter of law in Montana, and that whatever the outcome he plans to object to the sentencing hearing on Friday on the grounds that any change in his client's sentence has to come during an appellate hearing and that Montana law doesn't provide the judge the option to just declare a new sentencing hearing to correct a legal error on his part. The defense attorney is also planning a line of defense based on the fact the prosecutor had not made any objections whatsoever of the thirty day sentence until after the original hearing, I'm guessing he is hoping that may derail the prosecutor's appeal.

[crazy canuck]

But it's unclear if that will actually "work" because legally in Montana an illegal sentence is supposed to be rectified through the appeals process (the prosecutor had already planned to file an appeal of the sentence on the basis of the two year mandatory minimum.) So while Baugh may be attempting to fix his error, he may not actually have that option. Rambold's attorney is basically saying they are in very unclear waters as a matter of law in Montana, and that whatever the outcome he plans to object to the sentencing hearing on Friday on the grounds that any change in his client's sentence has to come during an appellate hearing and that Montana law doesn't provide the judge the option to just declare a new sentencing hearing to correct a legal error on his part. The defense attorney is also planning a line of defense based on the fact the prosecutor had not made any objections whatsoever of the thirty day sentence until after the original hearing, I'm guessing he is hoping that may derail the prosecutor's appeal.

Interesting question of when does a judge become functus.  In civil proceedings that doesnt occur until an order is filed in the court - I have been involved in civil cases where things have been changed or clarified after reasons for decision were issued but before the formal order was entered.  But I assume for criminal matters it works differently.

[Malthus]

But it's unclear if that will actually "work" because legally in Montana an illegal sentence is supposed to be rectified through the appeals process (the prosecutor had already planned to file an appeal of the sentence on the basis of the two year mandatory minimum.) So while Baugh may be attempting to fix his error, he may not actually have that option. Rambold's attorney is basically saying they are in very unclear waters as a matter of law in Montana, and that whatever the outcome he plans to object to the sentencing hearing on Friday on the grounds that any change in his client's sentence has to come during an appellate hearing and that Montana law doesn't provide the judge the option to just declare a new sentencing hearing to correct a legal error on his part. The defense attorney is also planning a line of defense based on the fact the prosecutor had not made any objections whatsoever of the thirty day sentence until after the original hearing, I'm guessing he is hoping that may derail the prosecutor's appeal.

Interesting question of when does a judge become functus.  In civil proceedings that doesnt occur until an order is filed in the court - I have been involved in civil cases where things have been changed or clarified after reasons for decision were issued but before the formal order was entered.  But I assume for criminal matters it works differently.

I love the word "functus". Sounds like a horrible skin disease.