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Colorado court: Some marijuana cases can be overturned

By: Steven K. Paulson, Associated Press
March 13, 2014 Updated: March 13, 2014 at 8:55 pm
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The Colorado Court of Appeals said people whose cases were under appeal when Amendment 64 took effect in December 2012 are eligible to have their convictions reversed. (Denver Post file)

DENVER — Some people convicted of possessing small amounts of marijuana can ask for those convictions to be thrown out under the law that legalized recreational marijuana in Colorado, the state's second-highest court ruled Thursday.

The Colorado Court of Appeals said people whose cases were under appeal when Amendment 64 on recreational marijuana took effect in December 2012 are eligible to have their convictions reversed.

Brian Vicente, one of the amendment's authors, called the ruling a "huge victory." Vicente said Colorado prosecuted as many as 9,000 cases a year for marijuana possession. After pot was decriminalized, a number of appeals were still in the courts.

Tom Raynes, director of the Colorado District Attorneys' Council, said it would be difficult to quickly pin down how many cases would be affected by the ruling, but he believed the number would be small.

Attorney General John Suthers said his office likely would appeal, noting it is well-established that laws cannot be applied retroactively unless lawmakers or voters clearly indicate they should be.

"That was not the case with Amendment 64," Suthers said in a statement.

The ruling came in the case of Brandi Jessica Russell, who was convicted in Grand County of possessing one gram or less of methamphetamine, possession of marijuana concentrate and possession of less than an ounce of marijuana.

Her attorney, Brian Emeson, said Thursday the ruling is another indication the "tide is turning" on the nationwide attitude toward possession of small amounts of pot.

Emeson said he still handles a number of marijuana appeals, which shows prosecutors have not backed off.

"This ruling shows it would be wise for them to focus on more pressing matters," he said.

Amendment 64 decriminalized the possession of an ounce or less of marijuana and covers regular marijuana as well as concentrate.

Russell was sentenced in August 2011 to four years of supervised probation and 192 hours of community service, plus a suspended 90-day jail term. The appeals court overturned the convictions and sentences for possession of marijuana Thursday and sent the case back to the trial courts.

Russell and prosecutors in her case couldn't be immediately reached for comment.

In the ruling, the judges said Amendment 64 didn't include a provision for throwing out convictions imposed before its passage. However, they said state law allows a defendant to received post-conviction relief "if there has been a significant change in the law."

They compared Amendment 64 to lawmakers' decision in the 1970s to make marijuana possession a misdemeanor punishable by up to a year in jail, down from a maximum sentence of 15 years, under a statute passed a decade earlier. At the time, the court said defendants were entitled to appeal their convictions after that change.

"Amendment 64, by decriminalizing the personal use or possession of one ounce or less of marijuana, meets the statutory requirement for a significant change in the law," the judges ruled.

Marijuana advocates cheered the ruling but said it won't affect most marijuana convicts.

"If I had a marijuana conviction 10 years ago, that doesn't go away," said Sean McAllister, a spokesman for the Colorado chapter of the National Organization for the Reform of Marijuana Laws, or NORML.

McAllister is a criminal defense attorney who said most people don't appeal pot convictions.

"This is the right legal decision, but we are talking about people who are disproportionately poor, minorities, unlikely to pursue an appeal," McAllister said.

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