The Simmons Amendment: probation before judgment

[MS2k]

(1) "CONVICTED OF A DISQUALIFYING CRIME" INCLUDES: (1) A CASE IN WHICH A PERSON RECEIVED PROBATION BEFORE JUDGMENT FOR A CRIME OF VIOLENCE; AND (II) A CASE IN WHICH A PERSON RECEIVED PROBATION BEFORE JUDGMENT IN A DOMESTICALLY RELATED CRIME AS DEFINED IN §6-233 OF THE CRIMINAL PROCEDURE ARTICLE.

Maybe I'm misunderstanding something here...

The Criminal Procedure Code says this:

§ 6-220. Probation before judgment
...
(g) Effect of fulfillment of conditions of probation. --

(1) On fulfillment of the conditions of probation, the court shall discharge the defendant from probation.

(2) The discharge is a final disposition of the matter.

(3) Discharge of a defendant under this section shall be without judgment of conviction and is not a conviction for the purpose of any disqualification or disability imposed by law because of conviction of a crime.​

Is it legal to define "probation before judgement" as both "a conviction" and "not a conviction"?

 

[madness3120]

Who cares.

 

[cwalker3]

Who cares.

Obviously he does. Why post a shitty response?

 

[ddeanjohnson]

Maybe I'm misunderstanding something here...

The Criminal Procedure Code says this:

Is it legal to define "probation before judgment" as both "a conviction" and "not a conviction"?

Is it "legal"? Well, as of October 1, 2013, it will be a law, approved by the legislature and the governor, and this new law will indeed, in effect, treat a Probation Before Judgment as a conviction for purposes of the firearms disability (unless expunged), but not for other purposes. Do you mean, can somebody come up with a plausible theory on why such a statute is unconstitutional, as a violation of the Second Amendment, a violation of federal due process protections, or what have you? Possibly. But I think it most likely that it will be an operative law for a long time.

 

[MotoJ]

I can't believe they passed it. It will be the first thing shot down in court. There can't be penalties for offenses that have been disposed, after the fact. Why stop here? The State could start adding penalties for anything they want if this is allowed to stand. We'll be paying taxes for the state to defend a stupid amendment, and they will lose.

 

[alpine44]

The death of civil liberties by a thousands cuts.

Today it is the redefinition of PBJs and people here on this pro 2A board say "Who cares, I am not one of those". Tomorrow it will be another list of people, another list of weapons that are no longer kosher.

They take from the people what they think they can get away with. They are not going to stop, ever. The folks who write and sponsor these bills think that we are serfs to them. They do not understand that we, the people, just temporarily appointed them to manage public affairs so we can go about our business of earning money for this.

If there is a real problem with PBJs, which I doubt, the state should stop giving PBJs and not criminalize people years after they told them "Just plea guilty and we will not convict you (if you fullfill the parole requirements)." Then later: "Sorry, we were lying, you are busted"

 

[ddeanjohnson]

I can't believe they passed it. It will be the first thing shot down in court. There can't be penalties for offenses that have been disposed, after the fact. Why stop here? The State could start adding penalties for anything they want if this is allowed to stand. We'll be paying taxes for the state to defend a stupid amendment, and they will lose.

You may be right, but I wonder why you're so confident. The federal Lautenberg Amendment, enacted in 1996, retroactively removed all firearms rights for anybody who had ever been convicted of a "misdemeanor crime of domestic violence." [italics added] This was upheld in the federal courts as not a violation of the constitutional ban on ex post facto penalties. Perhaps presentation of similar issues again, in light of the intervening Supreme Court decisions in Heller and McDonald, will bring a different result. But I would not bet the farm on it.

 

[Tashtego]

Thanks for this post. I have two questions/points.

First, just to be clear, the PBJ rule is not PBJ for any crime, but just for those listed crimes of violence and the defined domestically related crimes. I have heard people say that the PBJ rule means that ALL PBJs will disqualify you, even for speeding tickets, etc. That didn't sound right to me. This post confirms that it is only for the violence and domestic crimes.

Second, does the provision apply retroactively to PBJs that someone had before October 1, 2013? If so I think that could present an interesting constitutional question as an ex post facto law, for people who negotiated a PBJ previously. But I don't think there would be a good constitutional challenge for future PBJs, since now people know the effect of PBJs in this area so they can take it into consideration in negotiations.

 

[madness3120]

Read the first page both answers are there

 

[ddeanjohnson]

Second, does the provision apply retroactively to PBJs that someone had before October 1, 2013? If so I think that could present an interesting constitutional question as an ex post facto law, for people who negotiated a PBJ previously. But I don't think there would be a good constitutional challenge for future PBJs, since now people know the effect of PBJs in this area so they can take it into consideration in negotiations.

Yes, it is retroactive, as explained in the Original Post. I address the ex post facto issue in a post three above this one.

 

[MDFF2008]

All I'm gonna say, if it someone wants to test this, you better vet the **** out of the person.

The LAST thing you want is a wife beater who got PBJ as your test case.

 

[madness3120]

So if this amendement stands, MSP will send out letters telling those to turn there gun in?

 

[ddeanjohnson]

So if this amendement stands, MSP will send out letters telling those to turn there gun in?

I do not know what administrative steps the MSP will take regarding the Simmons Amendment provision. I expect one step would be to include a question about PBJs on a revised version of the 77R form (application for purchase/transfer of a handgun). Regarding personal legal options, you should consult an attorney, and one expert in Maryland firearms laws and criminal laws.

 

[chaz]

good idea

So does anybody Know of one that they can recommend ? at this point in the game it is better to be safe and knowledgeble than sorry.

 

[fabsroman]

So does anybody Know of one that they can recommend ? at this point in the game it is better to be safe and knowledgeble than sorry.

I'm an attorney. If you have a current issue you need to resolve, PM me about it and I'll see if it is something I handle. If you are just looking for attorneys to have in your contact list should something happen in the future, somebody else just started a thread on here about it and several names have already been mentioned in it. Mind you, none of them are cheap, but if you are in deep crap, I don't think you want a bargain basement attorney.

 

[esqappellate]

You may be right, but I wonder why you're so confident. The federal Lautenberg Amendment, enacted in 1996, retroactively removed all firearms rights for anybody who had ever been convicted of a "misdemeanor crime of domestic violence." [italics added] This was upheld in the federal courts as not a violation of the constitutional ban on ex post facto penalties. Perhaps presentation of similar issues again, in light of the intervening Supreme Court decisions in Heller and McDonald, will bring a different result. But I would not bet the farm on it.

Agreed

 

[scross87]

Hi, I'm new here and was trying to research on Maryland gun laws, because I'm hoping to purchase a shotgun soon. (My dad and uncle want to try to get me into hunting.) Although I'm concerned that my past may come back to haunt me. Several years, when I was younger and stupid, I was involved into a couple of fights; both misdemeanors, one dismissed (although I was told it'd be expunged) and the other expunged. So, I was just wondering if I should just at least try to make the purchase and see what happens, or should I not even bother? Thanks for your time, all. Also, sorry if I should've posted this question as a new thread instead of here.

 

[fabsroman]

Hi, I'm new here and was trying to research on Maryland gun laws, because I'm hoping to purchase a shotgun soon. (My dad and uncle want to try to get me into hunting.) Although I'm concerned that my past may come back to haunt me. Several years, when I was younger and stupid, I was involved into a couple of fights; both misdemeanors, one dismissed (although I was told it'd be expunged) and the other expunged. So, I was just wondering if I should just at least try to make the purchase and see what happens, or should I not even bother? Thanks for your time, all. Also, sorry if I should've posted this question as a new thread instead of here.

You need to figure out what your record shows and then go from there. When purchasing a firearm, you answer questionnaires under oath and they ask you if you have been convicted of certain crimes. You need to know how to answer those questions accurately. If you don't, there is the possibility for criminal charges against you for perjury and possibly attempting to buy a firearm when you are prohibited. Have somebody help you figure out what your criminal records shows, if anything.

 

[DaemonAssassin]

Hi, I'm new here and was trying to research on Maryland gun laws, because I'm hoping to purchase a shotgun soon. (My dad and uncle want to try to get me into hunting.) Although I'm concerned that my past may come back to haunt me. Several years, when I was younger and stupid, I was involved into a couple of fights; both misdemeanors, one dismissed (although I was told it'd be expunged) and the other expunged. So, I was just wondering if I should just at least try to make the purchase and see what happens, or should I not even bother? Thanks for your time, all. Also, sorry if I should've posted this question as a new thread instead of here.

First go here and no matter what shows up, speak to an attorney.

http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp