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Sheri’s Sidebar 11/17/2023 Edition #19

Sheri’s Sidebar Edition #19 Nov. 17, 2023

  1. Did you know or do you remember these things about continuances?
  2. Are you aware that you do not have to lose consciousness to have a concussion? A CT scan is negative, or normal when someone has a concussion? To diagnose someone with a concussion, you only have to have a history of recent head trauma and ONE or more symptom(s) such as headache, dizziness, confusion, or any one of dozens of symptoms…Godoy Medical.
  3. Did you know once a third strike conviction has occurred, whether by plea or trial, the State has no discretion to negotiate. However, the State does have discretion to negotiate by amending the charge to not be a third strike regardless of the real facts prior to conviction. See e.g. § 43:22. Persistent offenders, 13B Wash. Prac., Criminal Law § 43:22 (3d); RCW 9.94A.570
  4. Are you aware if you are representing a client for sentencing on a third strike case, you can demand the State prove to the court by the preponderance standard the two prior strikes?
  5. Did you know that in order for a prior strike J&S to not be considered in a third strike sentencing, first you must receive/demand the prior CERTIFIED J&S documents from the State to see if you can challenge them?
  6. ARE YOU AWARE:
    1. that the identity challenge during trial, for example proving the person on trial is the same person who was previously court ordered to do/not do specific conduct, IS NOT THE SAME STANDARDS OR CHALLENGES TO IDENTITY ALLOWED FOR THIRD STRIKE SENTENCING?
    2. That these arguments DO NOT WORK FOR THIRD STRIKE SENTENCING ARGUMENTS ON PRIOR J&S ARGUMENTS, even though some may have previously worked [*they may work at the trial level but the higher court precedent has determined it is no longer a valid argument sustaining proof that a prior J&S is invalid for purposes of proving a prior strike – remember the balance of the duty to the client, to the court, and to yourself/your license]
  7. Do you know what you CAN attack on the prior two J&S Orders for a third strike sentencing?