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-   -   urgent legal advice required concerning a signed legal document (http://www.prisontalk.com/forums/showthread.php?t=457160)

miami2009 12-22-2009 10:33 PM

urgent legal advice required concerning a signed legal document
 
Hi guys,

I need some urgent legal advice. I feel like I no longer trust the attorneys, the judge, know one, just wanna know the truth you know.

It is concerning a document, that was signed in court, that the d.a. and attorney are now saying that what was written in the document, they do not have to be faithful to it. It is concerning a charge being dropped to a misdemenour. They are saying the d.a. has the right to upgrade it to a felony whenever he pleads, when the defendent only agreed to a probation violation plea on the conditions that the felony was dropped to a misdemenour. I have a copy of the document.

If ANYONE could help at all, or knows anything about Georgia law, please contact me immediately. The defendant has been in jail 10 months now, for something that should have been sorted out in a month. He cannot parole out because of this pending charge.

Thanks guys!!!

robby340 12-22-2009 11:05 PM

Is this for two separate matters? A probation violation and a new charge?

Niki 12-22-2009 11:57 PM

Quote:

Originally Posted by miami2009 (Post 5124942)
Hi guys,

I need some urgent legal advice. I feel like I no longer trust the attorneys, the judge, know one, just wanna know the truth you know.

It is concerning a document, that was signed in court, that the d.a. and attorney are now saying that what was written in the document, they do not have to be faithful to it. It is concerning a charge being dropped to a misdemenour. They are saying the d.a. has the right to upgrade it to a felony whenever he pleads, when the defendent only agreed to a probation violation plea on the conditions that the felony was dropped to a misdemenour. I have a copy of the document.

If ANYONE could help at all, or knows anything about Georgia law, please contact me immediately. The defendant has been in jail 10 months now, for something that should have been sorted out in a month. He cannot parole out because of this pending charge.

Thanks guys!!!

I have no clue about Georgia law but you might get better results if you posted this in the Georgia forums.

Gryphon 12-23-2009 12:31 AM

See if you can get a state specific answer, but here's how it usually works.
A plea bargain is a contract between 3 parties, the defendant, the prosecutor and the Judge. If one of those parties wants to back out, there are rules that'll be different depending on who wants to back out.
The Judge can back out any time for any reason. If that happens, then the defendant can back out as well.
The DA can back out, but the Judge has discretion to block it under many circumstances. The DA usually tells the judge that they think he ought to disallow the plea bargain, and if the reason is half-way decent the Judge will do that That method keeps the DA from having to worry about a possible appeal issue.
If no one backs out first, it's hard for the Defendant to back out. That usually takes proof that the defendant was misadvised or free will was overcome. The Judge can sometimes be talked into disallowing the plea bargain.
The reason that there are ways a plea bargain can be undone is that the defendant is merely having trial rights restored.

There are also some limits on undoing plea bargains. Sometimes there's an objection to "vindictive prosecution". This has a rather complicated legal meaning, but at the core a DA can't up the ante just to get even. The judge might have to make certain findings before a plea bargain is tossed out. Each state can add limitations to what is a very strange form of contract law.

Quote:

Originally Posted by miami2009 (Post 5124942)
Hi guys,

I need some urgent legal advice. I feel like I no longer trust the attorneys, the judge, know one, just wanna know the truth you know.

It is concerning a document, that was signed in court, that the d.a. and attorney are now saying that what was written in the document, they do not have to be faithful to it. It is concerning a charge being dropped to a misdemenour. They are saying the d.a. has the right to upgrade it to a felony whenever he pleads, when the defendent only agreed to a probation violation plea on the conditions that the felony was dropped to a misdemenour. I have a copy of the document.

If ANYONE could help at all, or knows anything about Georgia law, please contact me immediately. The defendant has been in jail 10 months now, for something that should have been sorted out in a month. He cannot parole out because of this pending charge.

Thanks guys!!!


miami2009 12-23-2009 09:48 AM

Thank you for the responses so far.

Basically, my boyfriend was arrested on 2 charges:
1. Possesion of marujana ( a small amount found in a shoe)
2. Intent to distribute a separate batch of marujana (200 dollars worth found in a wardrobe of a locked bedroom, where the co-defendant was sleeping, my BF was in the living room, it wasn't even his house)

So, he pleaded guilty to the first charge (possesion), which meant he violated his probation. He was given to years for this. He only agreed to this if the 2nd charge was dropped to a misdemeanour, which is what it said on the legal document, signed by the 3 parties. However, when his attorney went to sort the 'misdemenour' out, the DA said it was no longer a misdemeanour.

My BF has been seen in court once since this, and the judge didn't even show up. Are they allowed to have hearings without the judge present!!!???? The DA offered the defendant 2 YEARS CONSECUTIVE if he would plead guilty to the intent to distribute. Of course my BF declined this as he is innocent. However, he just wants to go home. He suggested he would plead guilty if it was 2 YEARS CONCURRENT, but the DA refused. Now we are waiting for a full trial.

All this would be avoided if there is a loop hole where we can prove it was not legal for the DA to back out of the plea deal, or prove the judge was not given a chance to block this, as I suspect the judge does not even know.

robby340 12-23-2009 10:23 AM

If it makes you feel any better *I feel* that your boyfriend has a good case if the facts you stated were true. If he was staying in the house and did not have access to the drugs leave it up to a jury IMO.

skyman 12-23-2009 07:21 PM

I suggest double checking the 'document' your boyfriend signed. I do not believe that a written plea agreement on one charge will have any information about other charges with the exception of all lesser included charges. However, if the plea agreement was made in good faith of the D.A. pleaing on the distribution charge then you have a good case for the judge to disallow the bargain.

Secondly, no hearing can take place without a judge.

YourFriendlyDA 12-23-2009 11:59 PM

Quote:

Originally Posted by miami2009 (Post 5125552)
Thank you for the responses so far.

Basically, my boyfriend was arrested on 2 charges:
1. Possesion of marujana ( a small amount found in a shoe)
2. Intent to distribute a separate batch of marujana (200 dollars worth found in a wardrobe of a locked bedroom, where the co-defendant was sleeping, my BF was in the living room, it wasn't even his house)

So, he pleaded guilty to the first charge (possesion), which meant he violated his probation. He was given to years for this. He only agreed to this if the 2nd charge was dropped to a misdemeanour, which is what it said on the legal document, signed by the 3 parties. However, when his attorney went to sort the 'misdemenour' out, the DA said it was no longer a misdemeanour.

Let me see if I understand.
ct 1 - poss of marijuana - a "small amount" in georgia is less than an ounce and is only a misdemeanor
ct 20 poss of marijana WID (with intent to distribute) - must be a felony if the charge remains as is.

We can play with WID counts because in order for less than an ounce to be a felony it must be packaged for distribution or have some other evidence tending to support intent (scales, lots of small bills etc). $200 is a well under and ounce so I'm guessing that it was the packaging that bit him.

As for sentencing... ct 1 can only carry a year since its a misd. They can only take 2 years of his felony probation for a misdemeanor violation. Ct 2, as a felony, can result in the revocation of the balance of the probation.

I'm a little confused as to the plea. In georgia a prosecutor can orally amend an indictment or accusation with the consent of the defendant in open court. This is done by stating on the record "I'm amending ct 2 to the lesser included offense" or "I'm reducing ct 2 to ______". I've knocked armed robbery charges to disorderly conducts so anything is possible. BUT a defendant cannot "split" an indictment. You cant plea on one charge and fight the other. Any plea that is entered must be done to the document as a whole so I'm not sure what he was doing with the misdemeanor.

So... to answer your question in a roundabout way... I'm not sure. If the indictment was signed and the amendment was made to the face of it then its a done deal. I'm guessing that this was a pretrial conference calendar and thats why the judge wasnt there -- but that shouldnt change anything if the document was signed.

Can you clarify a couple of things?
1 - is the probation in the same county - and if it is, does the judge hearing this case have authority to deal with the existing probation?

2- is there only one pending charge or are there 2 indictments at issue?

3 - has probation already done a revocation?

4 - the "document" that you refer to - is it a court rights waiver form or something else?

5 - is the DA handling the probation the same on handling the open case?

hope i can help...


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