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August 17, 2018

Retroactive Grading of Theft Offenses

Cases:  State v. Charles Keese and State v. Michael Tolle

Issue:  Should thefts occurring before the grading amendment be sentenced under the old or new version?

Facts:  The offense governing the grading of theft offenses, 39-14-105, was amended in 2016 with an effective date of January 1, 2017. The Defendants in these two cases were charged with committing thefts before the effective date. Keese was found guilty after the law was signed but before the effective date, while Tolle pled guilty in 2012 but had a probation revocation hearing after the effective date. Keese was sentenced under the new law, while Tolle was re-sentenced under the new law.

Appellate Decision:  In Keese, the intermediate court held that the State lacked an appeal as of right to challenge the sentence, but that the court nonetheless had jurisdiction due to the Defendant’s own appeal. The court held the trial court lacked authority to sentence under the amended statute and imposed a sentence under the prior version. In Tolle, the intermediate court also held the State lacked an appeal as of right, but treated the appeal as a petition for a common law writ of certiorari and reversed the re-sentencing under the new statute as well.

Review Granted:  August 9, 2018.

Prediction:  Ben thinks the Supreme Court will likely agree that defendants sentenced before the amendment should be treated under the old grading system. Jurisdiction is another question. Ben thinks the Supreme Court will find jurisdiction in Keese due to the defendant’s appeal, but not in Tolle.