Q: Can someone receive credit for time served, if you waived time as part of a plea bargain?
My son spent nearly 5 years in County Jail, but received only 328 days of credit as part of a plea bargain. The ONLY reason he accepted that is because his Attorney, who has since retired, told both my Son, and I, that he would receive those credits after he transferred to State Prison.
Now we're being told that wasn't true.
How can we appeal this? Or, can we?
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A:
Credit for time served is typically calculated from the period of incarceration before sentencing. If your son was in county jail for nearly 5 years but was only credited for 328 days as part of a plea bargain, it's important to understand the specific terms of that plea agreement. Plea bargains can include various stipulations, and it's possible that the credit for time served was limited under this agreement.
If the attorney advised your son and you that he would receive full credit for the time spent in county jail after transferring to state prison, and this turned out to be untrue, it raises concerns about the validity of the plea bargain, especially if it was accepted based on this misunderstanding.
To challenge this, you can consider filing a motion to withdraw the plea, particularly if it was entered based on incorrect legal advice. This process involves proving that the plea was made under a significant misunderstanding or misrepresentation of rights or consequences.
It's also possible to file a habeas corpus petition, arguing that your son's detention is unlawful due to the incorrect application of credit for time served. However, this can be a complex legal process and usually requires a thorough review of the case facts and the plea agreement.
Given the complexity of the situation and the retirement of the original attorney, seeking legal advice from another attorney is advisable. An attorney can provide specific guidance on how to proceed based on the details of your son's case and the terms of the plea agreement.
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