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  1. #1
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    Default Can You Request a Motion to Dismiss at a Change of Plea Hearing

    Can a case be dismissed AT a change of plea hearing, right then and there, if the judge finds the case worthy of a dismissal?

  2. #2
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    Default Re: Can You Request a Motion to Dismiss at a Change of Plea Hearing

    What US state? And why do you think your case is worthy of dismissal?

  3. #3
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    Default Re: Can You Request a Motion to Dismiss at a Change of Plea Hearing

    Florida. Lack of evidence, no probable cause to arrest, it's complicated. $38 of water bottles, a bag of doritos, and deodorant. I'm on camera consuming nearly 100 bottles of unpaid water at my register and then seen paying for every single one of them except the 7 bottles I forgot. Obviously, buying 3-6 bottles each day for months, I would not make a conscious decision to steal a $2.00 bottle of water.

    They're trying to get me to change my plea to guilty. In florida, that's no more than 60 days in jail and a fine of no more than $500. I'm scared I won't be able to beat the case if it goes to jury trial (jury trial for $38, when I'm on camera buying 3-6 bottles of water everyday? It's not like I put anything in my pocket or person - the water went to the same trash can all my empty bottles go in).

    If I change my plea to guilty, I'm guessing I just get a $500 fine, right? First time offense, no record.

    6. ALL MOTIONS pertaining to the conduct of this trial, including motions in Limine, which have not already been scheduled for a hearing as of the date of this order shall not be considered by the court hereafter. The failure to have scheduled any such motion prior to the date of this order shall be deemed a waiver of all issues raised therein unless good cause is shown for the delay.

    ---^ Does that mean that this change of plea hearing is my last opportunity to request a C4 dismissal, or does that mean the last change for a motion to dismiss has already passed? Confused.

    6. ALL MOTIONS pertaining to the conduct of this trial, including motions in Limine, which have not already been scheduled for a hearing as of the date of this order shall not be considered by the court hereafter. The failure to have scheduled any such motion prior to the date of this order shall be deemed a waiver of all issues raised therein unless good cause is shown for the delay.

    ---^ Does that mean that this change of plea hearing is my last opportunity to request a C4 dismissal, or does that mean the last change for a motion to dismiss has already passed? Confused.

  4. #4
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    Default Re: Can You Request a Motion to Dismiss at a Change of Plea Hearing


  5. #5
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    Default Re: Can You Request a Motion to Dismiss at a Change of Plea Hearing

    Quote Quoting XLawCoreo
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    Can a case be dismissed AT a change of plea hearing, right then and there, if the judge finds the case worthy of a dismissal?
    Could it happen? In theory, I suppose yes. In practice if the court hasn't seen fit to dismiss it prior to the change of plea hearing it's not going to happen at that hearing. And once you plead guilty your chance to get the case dismissed will be over.

    Quote Quoting XLawCoreo
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    Florida. Lack of evidence, no probable cause to arrest, it's complicated. $38 of water bottles, a bag of doritos, and deodorant. I'm on camera consuming nearly 100 bottles of unpaid water at my register and then seen paying for every single one of them except the 7 bottles I forgot. Obviously, buying 3-6 bottles each day for months, I would not make a conscious decision to steal a $2.00 bottle of water.
    The state having video of you consuming your employer's products without paying for them will be enough for probable cause. So the court isn't going to dismiss for lack of probable cause when the state has that kind of evidence. Your explanation that you just "forgot" to pay for them and that you "obviously" would not steal it because of your history of buying the stuff on other occasions, that you wouldn't have done it because you knew you'd been seen on camera, etc are all defenses to the charges that you bring up at trial. They don't get the charges dismissed. And, as you've heard before, those kinds of defenses are kind of weak as pretty much every thief will pull out excuses like they didn't intend to steal, they could afford to pay for it so of course they didn't need to steal it, they've paid for stuff from the store before so why would they do it now, etc. So juries don't often buy those kinds of arguments. But that doesn't mean you need to plead guilty and you shouldn't plead guilty without at least consulting a criminal defense attorney and ensuring you get a decent plea agreement here.

    Quote Quoting XLawCoreo
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    6. ALL MOTIONS pertaining to the conduct of this trial, including motions in Limine, which have not already been scheduled for a hearing as of the date of this order shall not be considered by the court hereafter. The failure to have scheduled any such motion prior to the date of this order shall be deemed a waiver of all issues raised therein unless good cause is shown for the delay.

    ---^ Does that mean that this change of plea hearing is my last opportunity to request a C4 dismissal, or does that mean the last change for a motion to dismiss has already passed? Confused.
    What are you quoting that from? It sounds like it is coming from an order setting a trial in the case. The order says that any motions regarding the conduct of the trial had to be already set for a hearing for the judge to consider them and the failure have already scheduled such motions for a hearing will be considered waiver of any issues raised in those motions. In other words, the terms for the trial are now set and won't be changed unless there is a motion already set for a hearing on something that affects the conduct of the trial. A motion to dismiss is not a motion pertaining to the conduct of the trial. But if the case has made it to the point of being set for trial and the terms of the trial are set it's pretty much past the point of getting a dismissal.

    Again, you really should consult a criminal defense attorney before entering a guilty plea. A conviction (which includes a guilty plea) on a theft crime will cost you more than just the fine, probation, or whatever other sentence the court imposes. A lot of employers won't hire someone convicted of theft, especially theft from an employer, out of concern you'll steal from them, too. There is a service for retail employers where they enter the names of employees who have stole from them as an alert to other participating retailers, so that would pretty much kill your chances to work retail. And if by chance you are not a citizen then a theft crime is a crime mortal turpitude that can cause you to lose your visa/immigration status and get deported out of the U.S. A conviction may prevent you from entering the military, getting security clearances, and might be a problem for you in getting certain professional licenses, too. So if you can avoid a conviction for theft you'll avoid a lot of possible problems that would go with the conviction.

  6. #6
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    Default Re: Can You Request a Motion to Dismiss at a Change of Plea Hearing

    Quote Quoting Taxing Matters
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    Could it happen? In theory, I suppose yes. In practice if the court hasn't seen fit to dismiss it prior to the change of plea hearing it's not going to happen at that hearing. And once you plead guilty your chance to get the case dismissed will be over.



    The state having video of you consuming your employer's products without paying for them will be enough for probable cause. So the court isn't going to dismiss for lack of probable cause when the state has that kind of evidence. Your explanation that you just "forgot" to pay for them and that you "obviously" would not steal it because of your history of buying the stuff on other occasions, that you wouldn't have done it because you knew you'd been seen on camera, etc are all defenses to the charges that you bring up at trial. They don't get the charges dismissed. And, as you've heard before, those kinds of defenses are kind of weak as pretty much every thief will pull out excuses like they didn't intend to steal, they could afford to pay for it so of course they didn't need to steal it, they've paid for stuff from the store before so why would they do it now, etc. So juries don't often buy those kinds of arguments. But that doesn't mean you need to plead guilty and you shouldn't plead guilty without at least consulting a criminal defense attorney and ensuring you get a decent plea agreement here.



    What are you quoting that from? It sounds like it is coming from an order setting a trial in the case. The order says that any motions regarding the conduct of the trial had to be already set for a hearing for the judge to consider them and the failure have already scheduled such motions for a hearing will be considered waiver of any issues raised in those motions. In other words, the terms for the trial are now set and won't be changed unless there is a motion already set for a hearing on something that affects the conduct of the trial. A motion to dismiss is not a motion pertaining to the conduct of the trial. But if the case has made it to the point of being set for trial and the terms of the trial are set it's pretty much past the point of getting a dismissal.

    Again, you really should consult a criminal defense attorney before entering a guilty plea. A conviction (which includes a guilty plea) on a theft crime will cost you more than just the fine, probation, or whatever other sentence the court imposes. A lot of employers won't hire someone convicted of theft, especially theft from an employer, out of concern you'll steal from them, too. There is a service for retail employers where they enter the names of employees who have stole from them as an alert to other participating retailers, so that would pretty much kill your chances to work retail. And if by chance you are not a citizen then a theft crime is a crime mortal turpitude that can cause you to lose your visa/immigration status and get deported out of the U.S. A conviction may prevent you from entering the military, getting security clearances, and might be a problem for you in getting certain professional licenses, too. So if you can avoid a conviction for theft you'll avoid a lot of possible problems that would go with the conviction.
    [QUOTE=Taxing Matters;1131499]Could it happen? In theory, I suppose yes. In practice if the court hasn't seen fit to dismiss it prior to the change of plea hearing it's not going to happen at that hearing. And once you plead guilty your chance to get the case dismissed will be over.



    The state having video of you consuming your employer's products without paying for them will be enough for probable cause. So the court isn't going to dismiss for lack of probable cause when the state has that kind of evidence. Your explanation that you just "forgot" to pay for them and that you "obviously" would not steal it because of your history of buying the stuff on other occasions, that you wouldn't have done it because you knew you'd been seen on camera, etc are all defenses to the charges that you bring up at trial. They don't get the charges dismissed. And, as you've heard before, those kinds of defenses are kind of weak as pretty much every thief will pull out excuses like they didn't intend to steal, they could afford to pay for it so of course they didn't need to steal it, they've paid for stuff from the store before so why would they do it now, etc. So juries don't often buy those kinds of arguments. But that doesn't mean you need to plead guilty and you shouldn't plead guilty without at least consulting a criminal defense attorney and ensuring you get a decent plea agreement here.

    You're thinking of customer theft. Employee theft is a whole different type of theft. I know from experience working with Asset Protection that one of the oldest tricks in the book is for a thief to hold a $100 bill in his hand, or large amount of cash, walk in and grab an item, leave, and then when approached by the AP team they say something hair brained like "I forgot, if I didn't forget, then why do I have a $100 bill in my hand?"

    Employee theft is different ESPECIALLY when it comes to a consumable item. The most common type of employee theft is 'over ringing' items for a friend as a cashier.

    Either way, the prosecution doesn't have enough evidence to convict. There is no video of me stealing anything. The "not paying" only works if they can prove that I made a conscious decision to intentionally not pay for the water. Period.

    Almost ALL reports from the store or any grocery store use the words "Steal, "stealing", and "stole" example "Individual was observed stealing a bottle of Dasani water" -- my report never uses those words because there is no video of my stealing. You seem to be under the impression that not paying is the same as stealing. It is, only if done consciously with intent. If I forgot out of habit of throwing hundreds of bottles of water in the trash by my register over the months whenever my bottle was empty, then I forgot.

    Not paying is not stealing unless the prosecution can convince the judge that I made the conscious intentional decision to steal. No intent as I was buying 3 to 6 bottles every single day for months - on camera.

    There is no intent. There is no evidence. There is no case. The prosecution can hollar on and on about how they have video of me not paying for 7 of the nearly 100 bottles of water that I consumed at my register, because it doesn't prove that I stole the water. Plus, unlike a customer, the video of me REALLY does look like I forgot as you can see me throwing a hundred bottles of water in the trash can that the 7 bottles were thrown in. Know why? Because I forgot out of habit.

    If I was stealing, I would of quit with the first bottle maybe the second bottle. I wouldn't keep stealing unless I was planning on getting caught.

    They don't have enough evidence to convict and can't give any reason at all for intent to steal. Plus, I am an employee who has worked with AP numerous times so the judge has to take into consideration that I'm at that store every day for 12 months knowing I am on camera. Total different scenario than a customer.

    It's over. Case dismissed.

  7. #7
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    Default Re: Can You Request a Motion to Dismiss at a Change of Plea Hearing

    Quote Quoting XLawCoreo
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    It's over. Case dismissed.
    Really? Already?

  8. #8
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    Default Re: Can You Request a Motion to Dismiss at a Change of Plea Hearing

    It says here in the report that I was "placed under arrest and issued a misdemeanor citation" but I was never read my miranda rights...however, I was also never taken to jail. They let me go home after I wrote a statement and was given a court date.

    Were they required to read miranda rights?

  9. #9
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    Default Re: Can You Request a Motion to Dismiss at a Change of Plea Hearing

    Quote Quoting XLawCoreo
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    It says here in the report that I was "placed under arrest and issued a misdemeanor citation" but I was never read my miranda rights...however, I was also never taken to jail. They let me go home after I wrote a statement and was given a court date.

    Were they required to read miranda rights?
    Did the police ask you any questions related to the alleged crime besides identification? Miranda rights are required for custodial interrogation. Since they did a catch and release on you, they were not needed.

    As someone who worked internal investigations for a major retailer and got lots of cases, your understanding of employee theft and theft in general is woefully inadequate.

    Quote Quoting eerelations
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    Really? Already?
    I think he was inferring that would be the outcome in court. But I have to wonder if he is SO sure that is how it will go, why is he considering a guilty plea instead of fighting it?

  10. #10
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    Default Re: Can You Request a Motion to Dismiss at a Change of Plea Hearing

    Quote Quoting free9man
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    ...But I have to wonder if he is SO sure that is how it will go, why is he considering a guilty plea instead of fighting it?
    Or why he's even posting here. for that matter.

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