There was one opinion issued yesterday, Ned., Jr., v. State. Mr. Ned was convicted of manslaughter and he appealed, raising three issues. The first is whether he was in custody for Miranda purposes. The second is whether his sentence violates Blakely. The third is whether the court exceeded its authority in the restitution order.
As far as Miranda, the court notes that Ned was questioned at his home by one officer. He was not in any restraints and this occurred in his own home. He volunteered to talk with one officer while another came in and out of the room. As such, he was not in custody for Miranda purposes.
The Court also rejects Ned's Blakely claim. He received a sentence of ten years with three suspended, seven to serve, for the DUI manslaughter. 7 years is the presumptive for DUI manslaughter. The court relied upon an aggravator that he used a dangerous instrument, the car, to add the suspended three years. The Court of Appeals holds that seven years is the presumptive sentence for DUI manslaughter (as opposed to 5 years for manslaughter in general). Blakely is thus not triggered because he was not sentenced to time to serve above the presumptive. However, the Court notes that the trial court relied on an aggravator that is contained in the statute. In other words, he got 7 years instead of 5 because it was a DUI homicide, and then the court increased the sentence because he used a car. This is impermissible double-dipping, if you will, prohibited by AS 12.55.125(c)(2). So the three years suspended time is vacated.
The last issue is one that makes this case beneficial to defense attorneys. The funeral for the decedent was held in Evansville and many people had to fly into Evansville to attend the funeral. The court ordered that Mr. Ned pay for those costs, even for people who did not meet the statutory definition of "crime victim". The Court of Appeals held this was error. They point out that using the 'but for' test to determine restitution exposes a defendant in a criminal case to more pecuniary liability that he would face in a civil case. So the Court of Appeals holds that Ned has to pay for the travel expenses of those who are "victims" under AS 12.55.185(17)(C). The order to pay restitution for those who do not meet this definition is vacated.
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