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  1. #1
    Join Date
    Apr 2007
    Posts
    2

    Default What Can You Do About a Possible Wrongful Conviction

    South Dakota

    My fiance has 3 felonies on his record and is out on parole. !st felony charged for burglery & served 2.5 yrs & got out on parole. My concern is over the last 2 felonies. 2nd one he was charged for internal possession of meth. The evidence against him was a UA test which was not signed by him or sealed in front of him. He entered a guilty plea because his lawyer (the state's attorney of all people) told him he had to & he was too young & uninformed to know otherwise. He never verbally/written admitted to anyone, even the parole board, to using meth. He was also charged with habitual offender which they attached to the 2 prior felonies, the burglery & internal possession. He served 2.5 yrs of a 15 yr sentance with some of it dropped i believe; he says if these 2 are dropped he would have 2.5 yrs of suspended time as of right now for the burglery charge.

    After reviewing what he could on laws in SD, he believes that the habitual offender charges first should not be added to the burglery charge since it was not a drug related charge; and second that the evidence (the UA) should not have been used against him since it was not signed by him or sealed in front of him and in essence could not be proven to be his, which would make the habitual offender charge on the internal possession null & void as the internal possession would be void.

    As far as I know those are the details of charges & sentances. Right now he is sitting in jail awaiting a possible parole violation for a failed UA for marijuana (which he was set up on but thats another story) which if we can get those 2 felonies fought against & dropped, would also be voided since he said he would be on suspended time & would not have been subjected to the UA field test which he failed in the first place.

    We want to fight the drug felonies & are willing to put forth whatever money required to do so but do not want to waste the money if he is wrong about the convictions or it would not help him right now with the possible parole violation. Any ideas or suggestions?

  2. #2
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Possible Wrongful Conviction

    In order to be convicted, he would almost certainly have confessed to the offense under oath (it's called "allocution") at the plea hearing.

  3. #3
    Join Date
    Apr 2007
    Posts
    2

    Default Re: Possible Wrongful Conviction

    Forgot to add the 3rd felony being distribution of marijuana. The main goal I have here really is to try & get the habitual offender off the record since that caused the internal possession felony class to go up from Class 4 (10 yrs in penitentiary) to Class 3 (15 yrs) & the distrubution to go from a misdemeanor (30 days in jail) to a class 6 felony (2 yrs in penitentiary). Repealling the possession charge is second on the list if it can be done at all.

    I was able to speak briefly with my fiance a few hours after I posted this & asked about the allocution and he remembers now that he did have to admit to the court. He said his lawyer told him he had to & had no other choice but to enter into that guilty plea despite the insufficient evidence against him. Other than that there is no documented confession but instead persistant denial of using the meth.

    Is there any hope at all in light of this new info to get the possession charge changed or at least remove the habitual offender charges? I don't see how the state could have put the habitual offender charge on the prior burglery felony as it was not drug related & then put it on the possession & distribution charges as they were charged together on the same conviction. Wouldn't he have to had done/sold the drugs 'habitually' on at least 2 seperate offenses to be considered a habitual offender?

  4. #4
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Possible Wrongful Conviction

    Some states have more than one type of habitualization law - so you can be a "habitual felon" (or something similar) based upon your prior criminal history, or a "habitual drug offender) based upon prior drug-related convictions.

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