Austin, TX asked in Criminal Law for Texas

Q: Prosecutor making bogus threat?

What would happen if I signed a plea deal because the prosecutor was threatening to add a drug-free school zone enhancement to my charge if I didn't? But, later it was discovered by my attorney that I wasn't actually in a drug-free school zone. Would I be able to withdraw my plea deal? Would this look bad on the prosecutor? Would this look bad on my attorney?

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1 Lawyer Answer
Michael Hamilton Rodgers
Michael Hamilton Rodgers
Answered
  • Criminal Law Lawyer
  • Dallas, TX
  • Licensed in Texas

A: This is a very interesting situation you're asking about. Let me see if I can answer some of your questions and maybe shed some light on the questions I can't give a definitive answer on.

First, would you be able to withdraw your plea based on a prosecutor's threat that later proved to have no basis in the facts of your case. The prosecutor likely thought he could successfully charge you with the drug-free zone, at least, you know he'll say he thought he could. Sometimes misstatements of facts and/or law by the State which are relied upon by the defense can result in a judge allowing withdrawal of a plea, based on the idea that such a plea was not knowingly made. However in your case, you had the ability to judge for yourself whether you could be hit with the drug-free zone problem, so it might be hard to claim that the prosecutor's mistake caused you any harm.

In fact, your lawyer did in fact discover the truth concerning whether the threat was a real problem for you. So I guess a lot would depend whether you pleaded guilty before you found out the truth or after.

Would this look bad on the prosecutor? Not if it was a close call or the State could reasonably argue that the drug-free allegation actually did fit your offense. More than likely, this would just be seen as a mistake of fact which can happen to any lawyer in most any case.

Would it make your lawyer look bad? How could your lawyer look bad if it was he/she that figured out that the threat was empty? It would seem more likely to make you look "bad" in that you yourself didn't spot that your case didn't fit the drug-free zone factual requirements.

Whether you might be allowed to withdraw your plea depends on several factors such as was the prosecutor making threats he knew were empty and baseless or was it merely a mistake. The real question is, why would you want to start over? Are you thinking now that if you could withdraw your plea you would go to trial? The facts of your case haven't changed or have they? Maybe you believe that if you were allowed to withdraw your plea, you might get a better deal from the next prosecutor. Quite a few defendants have thought exactly these thoughts and later got amuch worse deal the secong time around either at trial or after pleading guilty. This is a situation where you better be careful what you wish for because you just might get it. Good luck.

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