Q: What options do we have. What motions are worth filing? Any suggestions on how to proceed
My husband signed for a 16yr prison sentence for probation revoke for Possession of Controlled Substance. Later we learned there was a Deadly Weapon Finding, which we were unaware of. It was not mentioned when he was sentenced nor is it in the court transcript of the sentencing.
A:
First: The date of the sentencing and guilty plea is important. The longer you wait to contest your sentence, the harder it will be to fix it or overturn it.
When he pled guilty, there was probably a plea "package" of paperwork, Notices of rights, and waivers of rights, that the court usually requires before your guilty plea is accepted by the court. Those papers and Notices should have indicated any enhancements or harmful findings of fact. If there was no "package" and no other paperwork or verbal warning by the court or the DA's office prior to your guilty plea, then you may have the legal grounds to vacate (open-up), your sentence or guilty plea. A real, detailed investigation of all warnings and notices about the guilty plea and sentence needs to happen ASAP.
Then, if you have proof that you were sentenced unlawfully, you can file a Motion to vacate the Judgment and guilty plea. If that doesn't work, and he is put back in prison, your move would probably be a Writ of Habeas Corpus.
I hope this helps.
You should see a good criminal lawyer ASAP.
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