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  1. #1
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    Sep 2011
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    Default How to Re-Open a Criminal Case After One Year Has Passed

    My question involves criminal law for the state of: Virginia.

    Hello: I am seeking ANY possible way to get before a judge to plea with him to reopen a misdemeanor case from last summer. I realize it's a long-shot, but I want to try. My case involves a plea agreement; I fit the encyclopedia definition of having ineffective counsel in this agreement, I had no affirming colloquy with the judge, and was told by my attorney as well as court staff that I could not appeal (incorrectly). I have also discovered effects of my punishment (a protective order) on my job search that were absolutely unknown to me last year.

    How do I at least get in front of a judge to ask that this be re-opened? HELP!!

    Thank you.

  2. #2

    Default Re: Best/Creative Way to Re-Open Case After One Year Has Passed (in Va)

    If you were convicted of a misdemeanor, you had an automatic line of appeal to Circuit Court. But your time limit to file an appeal was 10 calendar days from the conviction. After a YEAR? Your case is done.
    Catherine NeSmith
    Executive Director
    AARDVARC.org, Inc.
    http://www.aardvarc.org

    Fave Big Bang Theory site: Sheldon Cooper Fans

  3. #3
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    Default Re: How to Re-Open a Criminal Case After One Year Has Passed

    You should consult with a lawyer who specializes in post-conviction issues, and (as I expect will be necessary) pay the lawyer to obtain and review the court file and transcripts, and to advise you based upon that review.

  4. #4
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    Default Re: How to Re-Open a Criminal Case After One Year Has Passed

    Thanks for replying. No need to harshly bash me, as I've already relayed my story above; also, since I don't have Down Syndrome like your kids do, I KNOW that I had a direct line of appeal. However, my attorney at the time told me I did not--thus I thought I was unable to pursue that avenue. The question remains simply as it is: is there any remedy I can use, even if unorthodox, to just get in front of the judge? Thanks.

  5. #5
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    Default Re: How to Re-Open a Criminal Case After One Year Has Passed

    Frankly, you're going to need a lawyer if you have any prayer of a chance because NOTHING you said here indicates that there is any legal basis for an appeal at this time. I wasn't even going to begin to answer this based on your rude and immature response to Catherine's correct legal answer to your issue. Ineffective counsel is not a basis for appeal by itself. Judges are not going to just listen to random sob stories about how you're unhappy with your sentence.

    The only thing Catherine got wrong is that she assumed your case was heard in GDC (not all misdemeanors are). If you were heard in circuit court already (such as you demanded a jury trial), then you do not get an automatic appeal. You will have to make a specific legal point in your appeal to the court of appeals. The fact that your counsel didn't tell you your sentence would have long ranging impacts on your life doesn't cut it. You have to show that his ineffectiveness caused some error that would have bearing on your GUILT.

    You're not going to get the misdemeanor "opened" at this point. That guilt will stand. If there's some compelling reason why the protective order should be modified for vacated that motion may be made. But just having it thrown out because you can't find a job isn't going to happen.

  6. #6
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    Default Re: How to Re-Open a Criminal Case After One Year Has Passed

    My case involves a plea agreement; I fit the encyclopedia definition of having ineffective counsel in this agreement,
    the encyclopedia is not where you need to research the meaning of ineffective counsel. That would be in the laws, rules, and case law of your state.

    I had no affirming colloquy with the judge,
    Hmm, so you are claiming you were not required to allocute or simply that the judge didn't coddle you and explain everything to your satisfaction?

    and was told by my attorney as well as court staff that I could not appeal (incorrectly).
    first, it's not the court staff's position, or actually legal ability, to give you legal advice. That would be limited to your lawyer. As stated by others, you may or may not have had a right to appeal depending on the facts. Since you accepted a plea agreement, your justifications for an appeal are more limited and ineffective counsel is one of the few justifications for an appeal so, how was your counsel ineffective? Specifically; what was his deficiency that caused you to not receive a fair opportunity in court?

    I have also discovered effects of my punishment (a protective order) on my job search that were absolutely unknown to me last year.
    irrelevant. The onus is upon you and your counsel to consider the impact of the proposed sentence prior to accepting the plea agreement. It is not the obligation of the court to explain all of the possible detrimental effects any particular punishment may have on your life.

  7. #7
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    Default Re: How to Re-Open a Criminal Case After One Year Has Passed

    I do appreciate all your replies--thank you. Mine is an EXTREMELY unusual situation. One follow-up question I have: can the prosecutor reopen the case himself? If so I will persuade him to do so, even if I must hold a knife to his throat and watch over his shoulder sadistically whispering "now that's a good boy...yessss, that's a good boy now..." while he files the paperwork. But I'm not sure if he even has that power; he has, however, threatened to do so when I challenged part of my plea agreement (even though a year has passed). Thanks for all advice!

  8. #8
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    Default Re: How to Re-Open a Criminal Case After One Year Has Passed

    I do appreciate all your replies--thank you. Mine is an EXTREMELY unusual situation.
    How so?
    . One follow-up question I have: can the prosecutor reopen the case himself?
    No. But he might be a healthy ally in the case of any real relief that you might have (Though I'm not sure based on what you've communicated to us what that might be).

    I'm sure your joking, but committing other felonies in the progress is not going to help your case.

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