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  1. #1

    Default How to File a Motion for an Incarcerated Indigent Individual

    My question involves criminal law for the state of: Tennessee-Would like some advice on how to file this motion for an incarcerated indigent individual(post-conviction relief). I have the blank petitions to fill out from the tn.gov website. Statute runs out august 14,2018. Any advice on best way to go about this would be greatly appreciated. Individual pleaded guilty to a criminal possesion w/intent to sale/deliver. Public defender gave only option was to take a 10 year probation sentence(8-30yr. max sentence). A confidential informant in possesion of over 0.5g was released at scene of arrest. Arresting officer at scene told now incarcerated individual that evidence would not be put on her and that she was going to jail for a dui only. Public defender tells now incarcerated individual at hearing, that arresting officer would lie if case went to trial, thereby coercing her to accept a plea of 10 years probation. Other local officers were at scene, which appears to have caused arresting officer to allow confidential informant to not be charged with the 0.5g and released. I believe that so far I see grounds for motion to be: ineffective assistance of counsel, use of illegal evidence, and failure of prosecution to disclose evidence favorable to individual. Any advice at all would be extremely helpful. Thank you.

  2. #2
    Join Date
    Oct 2014
    Posts
    7,616

    Default Re: Advice on Filing Motion for Incarcerated Indigent Individual

    You are likely not going to like my reply, but I'll go ahead and say it anyway because I think it needs to be said: if you are not his lawyer you should not be preparing any motions for him to file in court. There are several reasons for that. First, if he is still represented by a lawyer only that lawyer may file anything in court for him; the court will reject any other filings. Second, you likely lack the knowledge needed to do effective post conviction relief for him and may end up screwing up his chances for relief (assuming that he has any good avenues to pursue). Third, preparing legal documents, and especially court filings, for others generally amounts to the unauthorized practice of law when you are not an attorney licensed in that state. That means doing this could get you in legal trouble.

    There is no way anyone here could really tell you what sort of motions or other filings he ought to make. In order to figure that out, I would need to see the court record and all the available facts. What he needs is attorney who is experienced in post-conviction relief to look at the information and advise him what options he has and to prepare whatever filings are needed to do it. If you can help him find that attorney that would likely help him much more than having someone unfamiliar with law and procedure try to tackle this.

  3. #3
    Join Date
    Jul 2010
    Posts
    7,784

    Default Re: Advice on Filing Motion for Incarcerated Indigent Individual

    The police are allowed to lie to suspects. The police on the scene also do not make the final call on what charges a defendant faces.

    It is not unusual for CIs to be allowed to skate on minor charges in return for assisting the police.

    Not sure where you are seeing the use of "illegal" evidence, whatever that is, or withholding of evidence.

  4. #4

    Default Re: Advice on Filing Motion for Incarcerated Indigent Individual

    After reading instructions from the tn.gov website about motions for post judgement relief, it would appear that from what I read, motions are filed without attorney's and it also goes on to say that if there are any errors in the filing, the court will respond to those errors and allow one chance to correct and then refile motion. Along with the forms that are on the tn.gov website, there is a form where an incarcerated individual can apply for a court appointed attorney if the motion is approved. I realize it is best to use an attorney, but in this situation, since it is allowed to not use an attorney in the motion process, and finances are a definite issue, I was hoping I could get some ideas on how best to go forward in this situation. I will be picking up all the records from her court case in the next couple of days and could discuss the details of the case more so at that point. Thanks for your help/

    She tells me that the Trooper found 0.5g on confidential informant in another vehicle that stopped to help her at the scene of her dui accident. Trooper, with other local police involved, allowed C.I. to leave and placed the evidence in her evidence. When asked why he was doing that, Trooper stated that he would tell the jail that it was not hers. When case came to court, public defender corralled her for the DA into accepting the charges, stating that Trooper would lie under oath and that she better take the plea deal of 10 years probabtion or face 8-30 year jail sentence. She was coerced into taking the plea in her best interest. I was using the "illegal evidence" from what she has told me about the C.I.'s evidence being turned on her. I don't know if DA knew about the "switch" or "planting" of the evidence, but if they were aware of it, I guess I was assuming that would be "withholding of evidence"? Thanks for your help.

    Also, she does not have an attorney from the original charges. She of course now has a probation violation of the 10 year probation sentence, and that is why we are looking at the motion for post judgement relief. She does have an attorney for the new VOP charge, but this attorney is using any available money for that VOP and is asking $10,000.00 more for the Motion for Post Judgement Relief. That is our dilemma. Thanks for your help.

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