State v. Ellevan

OPINION

FIDEL, Judge.

After serving two years of an aggravated 16.75 year prison term, petitioner learned he is HIV positive. His life expectancy is probably less than the remainder of his sentence. We hold that, even though his medical witness could only testify in terms of possibility and not of probability, petitioner met his burden of proving by preponderant evidence that he was already infected with the AIDS virus when his sentence was handed down. We reverse the trial court’s contrary decision and remand for a new sentencing hearing at which the trial court shall determine whether…