Can a defendant appeal a sentence under Blakely without preserving the issue and obtaining a certificate of probable cause?

California, United States of America


The following excerpt is from People v. Floyd, C053119 (Cal. App. 5/31/2007), C053119 (Cal. App. 2007):

This court applied the foregoing reasoning in Shelton to dismiss a defendant's appeal where he raised sentencing error under Blakely without preserving the issue and obtaining a certificate of probable cause. (People v. Bobbit (2006) 138 Cal.App.4th 445, 447-448.) There, we examined the language of the plea agreement and found it "did not preserve, either at sentencing or on appeal, the issue that the court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more aggravating circumstance(s)." (Id. at p. 448, fn. omitted.) "Without a certificate of probable cause, the appeal [had to be] dismissed." (Ibid.)

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