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The Water Cooler
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Oregon Militia take over federal building
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<blockquote data-quote="Dave70968" data-source="post: 2830762" data-attributes="member: 13624"><p>I can't cite a case off of the top of my head; however, I would point you to a Note in the Duke Law Journal on this very topic:</p><p><a href="http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2752&context=dlj" target="_blank">http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2752&context=dlj</a></p><p>Take note of the bottom paragraph of page 859 (allowing retrial to correct trial error) and, critically, the top of page 868: "If, however, the sentence initially imposed is not valid, such as when the court sentences the defendant to less than the minimum term required by statute, the defendant has not suffered lawful punishment and an appellate court may correct the invalid sentence by increasing the punishment." That sentence has a footnote referring to no fewer than <em>five</em> supporting cases, though I will concede that they were not in the last ten years.</p><p></p><p>This was the court correcting a trial error in which the trial court imposed a punishment not authorized by law.</p><p></p><p>Do I think it's harassment? Yes, absolutely. But, under the law, it's not a violation of the Fifth Amendment.</p></blockquote><p></p>
[QUOTE="Dave70968, post: 2830762, member: 13624"] I can't cite a case off of the top of my head; however, I would point you to a Note in the Duke Law Journal on this very topic: [url]http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2752&context=dlj[/url] Take note of the bottom paragraph of page 859 (allowing retrial to correct trial error) and, critically, the top of page 868: "If, however, the sentence initially imposed is not valid, such as when the court sentences the defendant to less than the minimum term required by statute, the defendant has not suffered lawful punishment and an appellate court may correct the invalid sentence by increasing the punishment." That sentence has a footnote referring to no fewer than [I]five[/I] supporting cases, though I will concede that they were not in the last ten years. This was the court correcting a trial error in which the trial court imposed a punishment not authorized by law. Do I think it's harassment? Yes, absolutely. But, under the law, it's not a violation of the Fifth Amendment. [/QUOTE]
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