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Criminal Law Casebook
Ex Post Facto Laws
Ex Post Facto Laws
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
U.S. Constitution: Art. I, Sec. 9 -- "No Bill of Attainder or ex post facto Law shall be passed."
Art. I, Sec. 10 -- "No State shall...pass any...ex post facto Law..."
Ohio Constitution, Article II, Sec. 28 -- "The general assembly shall have no power to pass retroactive laws..."
-- "If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended."
State v. Williams
, 129 Ohio St. 3d 344,
– Syllabus: “2007 Am.Sub.S.B. No. 10, as applied to defendants who committed sex offenses prior to its enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General Assembly from passing retroactive laws.” Changes compel conclusion revised
has become punitive, not remedial. Court does not address ex post facto claim under the federal constitution.
State v. Parker
, 186 Ohio App. 3d 600,
– The 20-year look back for prior OMVI convictions does not constitute an ex post facto law. Instead it increases the penalty for the current offense.
State v. Aubrey
, 175 Ohio App. 3d 47,
– Before the former six year statute of limitations for sexual battery had run it was increased to twenty years. No ex post facto violation found where defendant was indicted for conduct occurring more than six but less than twenty years ago.
Stogner v. California
(2003), 123 S.Ct. 2446 -- The Ex Post Facto Clause bars revived prosecution of an offense previously barred by the running of the statute of limitations. After the previously specified three-year period had run, California enacted a new law permitting prosecution of old offenses if commenced within one year of report to the police.
Smith v. Doe
(2003), 123 S.Ct. 1140 -- Alaska's Sex Offender Registration Act held to be civil and nonpunitive. Thus its retroactive application does not violate the Ex Post Facto Clause.
Carmell v. Texas
(2000), 529 U.S. 513, 120 S.Ct. 1620 -- Texas law changed, eliminating a corroboration requirement with regard to some sex offenses. Defendant was convicted of offenses committed before the change based on uncorroborated testimony. Ex post facto violation found. Laws altering the rules of evidence, allowing less or different testimony than required at the time of the offense, may not be applied retroactively.
Rogers v. Tennessee
(2001), 121 S.Ct. 1693 -- The Ex Post Facto Clause applies to acts of the legislature. The principle may not be extended as a matter of due process to judicial abrogation of the common law year and day rule, previously applied to bar prosecution in Tennessee for murder if the victim dies more than a year and a day after the defendant's acts, when the judicial decision was not the sort of unfair and arbitrary action against which the Due Process Clause aims to protect.
State v. Walls
, 96 Ohio St. 3d 437,
-- No constitutional violation in retroactive application of
resulting in an adult being prosecuted, without bindover proceedings, in Common Pleas Court for an offense committed when he was a juvenile. For retroactive law analysis in criminal cases the date of the offense is the governing date for assessing retroactivity. Court finds the legislature intended retroactive application and that the change was remedial, not substantive. Nor does application of the amended statute violate the ex post facto clause of the federal Constitution.
In re Hensley
, 154 Ohio App. 3d 210,
-- (1) Amendment of
attaching disability to prior convictions does not violate the state constitution's ban on retroactive laws. (2) Even though the applicant's prior gross sexual imposition conviction now carries a disability, he is still entitled to a full hearing on his motion for relief from disability, and is eligible for relief.
State v. Brooks
, 163 Ohio App. 3d 241,
-- The version of the sentencing statutes in effect at the time of the offense remains in effect unless the defendant is entitled to beneficial amendment pursuant to
. An amended version of
tolls time when a person sentenced to community control is in prison. The version under which the defendant was sentenced did not. Ex parte order tolling running of community control was an unlawful modification of the sentence, following ex post facto reasoning.
Miller v. Hixson
(1901), 64 Ohio St. 39 -- Paragraph one of the Syllabus: "A statute which imposes a new or additional burden, duty, obligation, or liability, as to past transactions, is retroactive, and in conflict with that part of section 28, article two of the constitution, which provides that, 'The general assembly shall have no power to pass retroactive laws.'"
State v. Webb
(1994), 70 Ohio St. 3d 325 -- Paragraph one of the syllabus: "A rule changing the quantum of proof required for conviction may be applied to trials of crimes committed before the rule was announced without violating the Ex post facto clause. (
State v. Jones
, 67 Ohio St. 2d 244...overruled.)" Issue was whether
applied on appellate review of the sufficiency of the evidence. Also see
Collins v. Youngblood
(1990), 497 U.S. 37.
State v. Crawley
(1994), 96 Ohio App. 3d 149, 153 -- "While the Ex Post Facto Clause does not apply to actions of the judicial branch, judicial decisions applied retroactively can violate the Due Process Clause."
Hopt v. Utah
(1884), 110 U.S. 574 -- No ex post facto violation where statute merely enlarged the class of persons competent to testify. Alteration related to procedure and not the substantive rights of the defendant.
State v. Mrus
(1991), 71 Ohio App. 3d 828 -- Where the victim of domestic violence is the defendant's child, whether or not they have lived together isn't an element of the offense. Though defendant had not lived with his daughter since before the effective date of the statute, prosecution did not violate the prohibition against ex post facto laws.
State v. Luff
(1993), 85 Ohio App. 3d 785, 791-793 -- Application of a changed definition of legal insanity in a case arising before the amendment of the statute violated the ex post facto clauses of the state and federal constitutions.
State v. Ahedo
(1984), 14 Ohio App. 3d 254, 256-258 -- The ex post facto clauses of the state and federal constitutions require that the defendant be sentenced according to the law in effect at the time the offense was committed if revised provisions in effect at the time of sentencing are more burdensome.
State v. Gleason
(1996), 110 Ohio App. 3d 240, 245-246 -- Ex post facto violation found in sentencing defendant on disseminating matter harmful to juveniles as a F-3, when at the time the offenses occurred it was classified as a F-4.
State v. Smith
(1984), 16 Ohio App. 3d 114 -- Application of a harsher license suspension provision to an offense committed before the effective date of the legislation is a violation of the ex post facto clauses of the state and federal constitutions.
Dobbert v. Florida
(1977), 432 U.S. 282 -- Florida death penalty provisions were never repealed, though portions relating to procedure by which sentence was passed were held unconstitutional. No ex post facto violation found where offense was committed before amended sentencing provisions were enacted and sentencing was pursuant to the new provisions.
Miller v. Florida
(1987), 482 U.S. 423 -- Ex post facto violation found where state changed sentencing guidelines with the result that the defendant received a harsher sentence than he would have under the guidelines in effect at the time the offense was committed. Notice in the legislation that guidelines were subject to constant review did not avoid ex post facto prohibition.
Blackburn v. The State
(1893), 50 Ohio St. 428, 437-438 -- No ex post facto violation where new provision calls for a life sentence for a person convicted of a third felony, though the first two offenses were committed before the effective date of the legislation. Rather than imposing additional punishment for the earlier offenses, the provision requires a harsher penalty for the third, and thus is not retroactive. Also see
In re Harry Allen
(1915), 91 Ohio St. 315.
Lynce v. Mathis
(1997), 519 U.S. 433 -- Statutes awarded early release credits in a scheme which led to early release in the event of prison overcrowding. Inmate was released under this scheme, then reincarcerated after an attorney general's opinion interpreted a subsequently enacted statute as retroactively cancelling credits awarded those convicted of certain offenses. Ex post facto violation found.
Weaver v. Graham
(1981), 450 U.S. 24 -- Ex post facto violation found where statute reducing good time credit in effect lengthened time to be served by those convicted before effective date.
Garner v. Jones
(2000), 120 S.Ct. 1362 -- Application of new rule allowing up to eight years between parole reconsideration hearings, instead of the previous three, not a per se ex post facto violation. Also see
California Department of Corrections v. Morales
(1995), 514 U.S. 499.
State ex rel. Ubienski v. Shoemaker
(1985), 17 Ohio St. 3d 145 -- Though the underlying facts are difficult to follow, court finds no ex post facto violation in change of parole eligibility date, in accordance with provisions of the Ohio Administrative Code, on the basis that there is no constitutional or state-granted right to parole.
State v. Dolce
(1993), 92 Ohio App. 3d 687, 697-699 -- Changes in insurance fraud statutes did not make punishable what had previously been lawful, but the elimination of a defense in the penalty provision which had reduced the degree of the offense, and uncertainty in the jury's verdict as to exact amount of fraud falling within particular time periods, amounted to an
ex post facto
State v. Cook
(1998), 83 Ohio St. 3d 404 -- Syllabus: "(1)
, as applied to conduct prior to the effective date of the statute, does not violate the Retroactivity Clause of Section 28, Article II of the Ohio Constitution. (2)
, as applied to conduct prior to the effective date of the statute, does not violate the Ex Post facto Clause of Section 10, Article I of the United States Constitution." At p. 425: "A sexual predator determination hearing is similar to sentencing or probation hearings where it is well settled the Rules of Evidence do not strictly apply...Thus, reliable hearsay, such as a presentence investigation report, may be relied upon by the trial judge."
State v. Heaton
(1995), 108 Ohio App. 3d 38 -- Court finds application of amended statute now barring expungement of gross sexual imposition convictions not to be an impermissible retroactive law, characterizing expungement as remedial rather than substantive law, and noting expungement is discretionary.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
Contents may not be duplicated without express permission.