Alaska, February, 2007, State Case law

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State Courts - Alaska - February 28 - March 2, 2007

Church v. City & Borough of Sitka, Court of Appeals No. A-9352, No. 5180, COURT OF APPEALS OF ALASKA, February 28, 2007, Decided
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Overview: Postconviction relief under Alaska R. Crim. P. 35.1 was properly dismissed because defendant failed to show that counsel was ineffective by failing to seek a favorable evidentiary presumption instruction in DWI trial in that instruction was only required when officer failed to offer independent test and the officer made such an offer to defendant.

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Goins v. State, Court of Appeals No. A-9354, No. 5178, COURT OF APPEALS OF ALASKA, February 28, 2007, Decided
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Overview: A superior court properly denied appellant's Alaska R. Crim. P. 35(a) motion to correct an illegal sentence where his original sentence on a third-degree assault conviction and the sentence imposed after his probation was revoked did not violate the Blakely rule and the sentence was not excessive given his criminal history.

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Hastings v. State, Court of Appeals No. A-8783, No. 5181, COURT OF APPEALS OF ALASKA, February 28, 2007, Decided
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Overview: Defendant was not entitled to dismissal of attempted murder counts because of the delay in resentencing him. There was no indication that defendant asserted his right to speedy sentencing while the case languished, and defendant did not show any significant prejudice caused by the delay.

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Moore v. State, Court of Appeals No. A-9471, No. 5179, COURT OF APPEALS OF ALASKA, February 28, 2007, Decided
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Overview: Defendant's Fifth Amendment rights were not implicated to invalidate consent to breath test by his noncustodial request to speak to attorney before discussing assault because test results were neither testimony nor evidence relating to some communicative act and efforts to obtain Fourth Amendment consent to search did not constitute interrogation.

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Swindler v. State, Court of Appeals No. A-9400, No. 5183, COURT OF APPEALS OF ALASKA, February 28, 2007, Decided
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Overview: Defendant's motion to correct his DUI sentence under Alaska R. Crim. P. 35(a) was properly denied because defendant never contested that he had four prior convictions for DUI and the prior convictions were a proper basis under Blakely to find an aggravator under former Alaska Stat. ? 12.55.155(c)(21) without submitting the issue to a jury.

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Williams v. State, Court of Appeals No. A-8854, No. 5182, COURT OF APPEALS OF ALASKA, February 28, 2007, Decided
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Overview: Appellant's postconviction petition challenging his counsel's effectiveness was properly denied where appellant's failure to provide an affidavit detailing his complaints in response to counsel's motion to withdraw was the result of appellant's own actions and counsel did not violate the attorney-client privilege in responding to questions.

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Eagle v. Dep't of Revenue, Supreme Court No. S-12004, No. 6105, SUPREME COURT OF ALASKA, March 2, 2007, Decided
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Overview: Servicemember applied for Permanent Fund Dividend (PFD). PFD Division properly rejected application because servicemember failed to overcome presumption that absence from Alaska for over five years indicated intent not to return to state. 50 U.S.C.S. app. ? 571 and 50 U.S.C.S. app. ? 595 did not preempt state law.

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Gibson v. Geico Gen. Ins. Co., Supreme Court No. S-12109, No. 6106, SUPREME COURT OF ALASKA, March 2, 2007, Decided
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Overview: In insured's suit against her insurer, which arose from policy's underinsured motorist provisions, trial court did not err in precluding deposition of insurer's employees, under Alaska R. Civ. P. 26, because relevant material was discoverable elsewhere, and trial court did not err in precluding employee's testimony under Alaska R. Evid. 403.

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Jurgens v. City of N. Pole, Supreme Court No. S-11847, No. 6107, SUPREME COURT OF ALASKA, March 2, 2007, Decided
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Overview: Board's findings that employee engaged in conduct amounting to sexual harassment and that he should be terminated was supported by substantial evidence, where, inter alia, the employee admitting that, while at work, he held a plastic pacifier shaped like a penis near the dispatcher's face and took a photograph.

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Malloy v. State, Court of Appeals No. A-9011, No. 2085, COURT OF APPEALS OF ALASKA, March 2, 2007, Decided
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Overview: Defendant was convicted of first-degree murder, and she received a 99-year sentence. Imposition of minimum mandatory sentence, under Alaska Stat. ? 12.55.125(a)(3), did not violate Blakely or Apprendi principles because there was a finding of substantial physical torture to victim; however defendant was entitled to good time credits.

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