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  1. #1

    Default Tricked Into Accepting A Plea Bargain

    My son had a plea bargin with the prosecutor for time
    sevred on a DWI (40days)if he pleaded no contest. he agreed plead no contest but the judge threw out the agreement of time servered and gave her own sentence. the judge would not let him change his plea
    even thou she changed the agreement with out his consent. my son's attorney never told him the judge does not have to accept the agreement. when i spoke to the attorney he said he did not know a judge could do that.
    Is this right or do we need a new attorney.
    My son would never of agreed to an open end sentence at judges choice. in our county they are known for stiff penalties
    williamson county Texas

  2. #2
    panther10758 Guest

    Default Re: tricked into plea bargin

    You do not have an understanding of "plea agreements". If you or your Attorney enter into a plea agreement with each other thats fine, however the judge does not have to agree to that plea deal! In most cases the plea deal are upheld however there are rare cases that do not. The judgel 'alone" decides if he/she will abide by plea deal.

  3. #3
    Join Date
    Jan 2006
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    27,024

    Default Re: tricked into plea bargin

    the last couple of times I saw a person accept a plea agreement, part of that agreement was to elocute their involvement with the crime. At that time (each and every one of them) the judge did ask the accused if they understood the agreement, if they were promised anything in exchange for the plea and continued on to inform them that the judge was not bound by any plea discussions between the accused and the prosecutor and could determine the sentence outside of any discussions the accused and the prosector had.

    Now I have also seen where the plea agreement was actually a signed document and included a sentence guide line that if not followed, made the agreement void and the plea was withdrawn.

    In either type of case, the accused was informed, many times, how everything worked.

    an agreement with your own attorney would bare no weight concerning the judges actions. That is not a plea agreement, it is merely the accused making a decision to accept their attorneys recommendations.

    Typically a no contest is also not in a plea agreement. Courts like to see guilty pleas.

  4. #4
    Join Date
    Mar 2005
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    Michigan
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    28,625

    Default Re: tricked into plea bargin

    Although the distinction can be lost on somebody making the plea, sometimes the agreement offered by a prosecutor is not, "If you plead guilty you will get time served", but is "If you plead guilty, I'll recommend a sentence of time served". If it's the latter, even if the judge imposes a greater sentence, there is no violation of the plea agreement if the judge chooses not to follow the recommendation.

    It can also be important to know if the terms of the plea agreement were reduced to a written contract, or were placed on the record in association with the plea.

  5. #5
    Join Date
    Mar 2007
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    1

    Default Re: Tricked Into Accepting A Plea Bargain

    The lawyer knows a judge does not have to accept the plea bargain. The judge would have advised counsel of refusal to accept. If your son continued without protest it is a valid plea. Your son can file a Motion to Vacate the plea and be resentenced. May be a bad idea though. Good Luck

  6. #6
    Join Date
    Jan 2006
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    27,024

    Default Re: Tricked Into Accepting A Plea Bargain

    Quote Quoting Avvocato1
    View Post
    Your son can file a Motion to Vacate the plea and be resentenced. May be a bad idea though. Good Luck
    may not be a possibility either.

    If the courts find no reason to vacate the plea, it will remain in place. If that be the case, the defendant could seek an appeal to a higher court. All of this will take time and money and very well may not ever change a thing.

    Unless the actual sentence is a huge difference from the plea, it may be most practical to simply abide by the current sentence and be done with it.

    If the current sentence is less than the greatest sentence the judge could have rendered, it may be the better thing to simply take his lumps and not seek redress. If there is a greater sentence possible, by withdrawing the plea in place, OP opens himself up to that greater sentence when eventually found guilty.

    You know the old addage: a bird in the hand and all....

  7. #7

    Default Re: Tricked Into Accepting A Plea Bargain

    First, I would make sure your son is giving you the straight-poop. Often times a defendant will agree to something, especially if they're strong-armed into it by an appointed counsel just trying to collect his check and get out of there, and then the defendant get's buyer's remorse later. And I will agree with one of the former responses that it is RARE a judge will 'bust a plea'...which again makes me wonder if this is what actually happened. I practice in the Dallas/Fort Worth area and have NEVER (yet) seen a court that does not require a defendant to sign a "Waiver and Plea Admonishments" that contains an admonishment that a plea agreement is NOT binding on the court. But those same admonishments also go on to say that if the court will not accept the plea agreement the court will so inform the defendant and they will be allowed to withdraw their plea. During the plea, the judge will usually hold up that document in front of the defendant and ask "Did you sign this form and has your attorney gone over it and explained it to you?" So for starters, I would go to the court clerk's office, look at the file, and see if your son signed such a document. If not, likely what he is telling you may have merit.

    If that is the case and this has just happened, you should retain counsel to file a Motion for New Trial and to Vacate Judgment. In Texas this must be done within 30-days. But beware! If your son did get a relatively good deal and he was indeed guilty with no procedural or constitutional defects in the case, he might just want to leave it alone. A new trial will open him back up to the full range of punishment.

    Good Luck!

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