More on Blakely and Virginia

The opinion of the Virginia Court of Appeals in Walshaw v. Com., written by Judge Felton (my criminal law professor), includes a footnote on Blakely, which says:

"In each of the cases cited by appellant, the accused was convicted of a crime charged in the indictment, and the trial judge determined the sentence to be imposed. The sentencing judge was permitted to find aggravating sentencing factors by a preponderance of the evidence, rather than beyond a reasonable doubt. See also Blakely v. Washington, ___ U.S. ___ (June 24, 2004). In the federal system and the vast majority of states, the trial judge sentences the convicted person, even in cases where a jury determines guilt. We note that Virginia has since colonial times provided for jury sentencing in cases tried by the jury. See Walker v. Commonwealth, 25 Va. App. 50, 61-62, 486 S.E.2d 126, 132 (1997). In Virginia, neither the jury nor the trial court can sentence a person to a greater punishment than that established by the legislature for the crime of which that person was convicted. See Abdo v. Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977)."