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Old December 11, 2012, 11:20 PM   #226
Don H
Senior Member
Join Date: May 8, 2000
Location: SLC,Utah
Posts: 2,704
Originally Posted by MLeake
Don H, I think his rationale is that this particular change will have been due to the prior law having just been ruled unconstitutional. IE, it was not "changed," it was invalidated.
I had time to do some research and came across this tidbit:
38 ALR Fed. 617
"Where subsequently to the petitioner's conviction the United States Supreme Court or the Court of Appeals renders a decision holding unconstitutional, as applied to the petitioner, the federal statute under which he had been convicted, the courts have held such decision to be a sufficient or proper ground for granting a petition for a writ of error coram nobis under 28 U.S.C.A. ยง 1651 to vacate the petitioner's federal conviction, even though the sentence had already been served."
So it appears that a conviction under a federal statute later determined to be unconstitutional can be vacated. It seems reasonable that a similar relief would be available for a conviction under an unconstitutional state statute. I haven't yet run across anything that allows a civil action for damages or to recoup expenses. Perhaps one of our legal experts will be able to address this aspect?
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