Wednesday, December 15, 2010

Substitute Opinion in Perry

In October I asked the question What Does "Shall Not Be Given Retroactive Application" Mean?, wondering what that phrase in State v. Perry meant. Perry, you might recall, is the case which makes it more difficult to successfully raise unobjected to errors on appeal. (In short, the Court held that "where an error has occurred at trial and was not followed by a contemporaneous objection, such error shall only be reviewed where the defendant demonstrates to an appellate court that one of his unwaived constitutional rights was plainly violated. If the defendant meets this burden then an appellate court shall review the error under the harmless error test, with the defendant bearing the burden of proving there is a reasonable possibility that the error affected the outcome of the trial.")

My question was answered in the substitute opinion issued in Perry last week and it turns out that no retroactive application means that the "clarified standards shall be applied to all cases not yet final on direct review." So, if your case is on direct appeal, the "clarified standards" apply even if your case was completed in the district court before Perry was decided.

To read the substitute opinion click here:

1 comment:

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