Tulsa Attorney BlogState Question 805: Does 805 Have Retroactive Application? (Part 5)

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Video Transcribed: Does Oklahoma State Question 805 have a retroactive application? I’m Tulsa criminal defense attorney James Wirth. I’m doing a seven-part series regarding questions related to Oklahoma State Question 805. And our topic for this video is, does it apply retroactively, and the answer is yes, it does.

It has a retroactive application. It applies not only to current cases going forward and sentences on those, but for anybody that is incarcerated or somebody who is facing an application to revoke or accelerate a sentence, it is applicable to those, but not automatically. The person in question has to file with the court.

So if you fall into that scenario where you were prosecuted for an offense, the prosecutor attached a second-page alleging prior felony convictions, and that was used to enhance your range of punishment, and you were sentenced based on that enhancement, then you’re going to be eligible if 805 passes in order to file for a modified sentence.

So you would file a petition with the court using a form that’s prescribed by the Oklahoma Court of Criminal Appeals, which hasn’t happened yet because it hasn’t passed yet. But that’s what the State Question provides. And you would request a modification hearing, to determine whether you’re entitled to a sentence modification.

And then the court at that point has to review it, to see if you qualify based on enhancement being used before, based on your sentence, actually using enhancement and that you still being in custody or being prosecuted under an application to revoke or accelerate.

And then at that point, there’s a couple of things that have to happen. Notice has to go out to any victim that is registered with DOC, and also notice obviously to prosecutors and everybody would go as part of that, and it would be set for a hearing.

And during the hearing, not only does the defendant get to speak and be heard and the defendant’s attorney, but also the state gets to be heard and victims of the crime get to be heard. And then the judge is required to sentence them within the range of the offense now, without consideration to enhance it based on prior felony convictions. So there could be a mandatory reduction in that sentence, depending on how they were sentenced the first time.

And that answers that question, I believe. It does have a retroactive application. It is not automatic. The defendant must file a petition. If you’ve got questions about any of that, want to talk to an attorney, you’re going to want to discuss your particulars to get legal advice on that. If you want to talk to somebody at my office, you can go to makelaweasy.com.

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