bluemama
01-13-2005, 12:35 AM
Good evening, does anyone have an overview - maybe based on their legal background, or experience about the following circumstances. my son has one shot at a motion (2255) to try to get a rehearing for his excessively long sentence for conspiracy (complete with trial error and misinformation at the sentencing). Thank you in advance for your opinons/input/comments. Feel free, ok?
a) my son was arrested when he was 17, charged as a juvenile in the state(Florida) system (possession of marijuana with intent to distribute), received withheld adjudication and put on probation for 1 year.
b) six months into the probation, he violated it with 'reckless display of a firearm'. his pricey lawyer (25k) talked him into accepting the state attorney's 'deal' to plead guilty AS AN ADULT to 1) possession with intent to distribute (the FIRST charge) and 2) the vop violation as: possession of a firearm by a convicted juvenile dellinquent. (outcome was 3 years house arrest, community control II, with 150 hours community service and drug program)
c) at 22 years old, he was arrested by the feds and charged with conspiracy to possess and distribute heroin (March,2002) (i really hate this charge, it's so easy to turn it into anything one wants..conspiracy, literally- thinking or planning to...)
d) another price gouge by the SAME law firm that represented him as a juvenile (dumb us!) - this time twice as much, and he was talked into pleading guilty with a 'promise' by the AUSA that if he did plea bargain, he wouldn't receive more than 5 years.
e) enter the AUSA with an attitude after our son's PSI recommended probation since he had successfully completed a 3 year house arrest for the violation of probation..and this AUSA challenged the PSI report, had it struck down by the judge at the pre-sentence hearing
f) at the sentence hearing, some federal witness "familiar" with juvenile law (experts in state juvenile law are as rare as hen's teeth, i'm told), came into the courtroom and said outright that career criminal status would apply to my son now, since he had pled guilty to the first (remember, first it was juvenile, then it became adult because of the juvenile probation violation) charge as an adult - and that under the current guidelines he fit the requirements
g) the level went from 108 months under the guidelines to 188 months...and the judge stated in court he was "BOUND" by the guidelines to sentence our son to 188 months - as a career offender!
The question is this: the appeal (of course, in the 11th circuit!) was denied. He is now engaged in preparing a 2255 motion for filing (with five months left to file in, since we were waiting on Blakely and the Supreme Court). IF we can cite plain error (the juvenile charges being changed into adult charges,etc) AND apply Blakely, do you think he's got a shot at getting a rehearing?
a) my son was arrested when he was 17, charged as a juvenile in the state(Florida) system (possession of marijuana with intent to distribute), received withheld adjudication and put on probation for 1 year.
b) six months into the probation, he violated it with 'reckless display of a firearm'. his pricey lawyer (25k) talked him into accepting the state attorney's 'deal' to plead guilty AS AN ADULT to 1) possession with intent to distribute (the FIRST charge) and 2) the vop violation as: possession of a firearm by a convicted juvenile dellinquent. (outcome was 3 years house arrest, community control II, with 150 hours community service and drug program)
c) at 22 years old, he was arrested by the feds and charged with conspiracy to possess and distribute heroin (March,2002) (i really hate this charge, it's so easy to turn it into anything one wants..conspiracy, literally- thinking or planning to...)
d) another price gouge by the SAME law firm that represented him as a juvenile (dumb us!) - this time twice as much, and he was talked into pleading guilty with a 'promise' by the AUSA that if he did plea bargain, he wouldn't receive more than 5 years.
e) enter the AUSA with an attitude after our son's PSI recommended probation since he had successfully completed a 3 year house arrest for the violation of probation..and this AUSA challenged the PSI report, had it struck down by the judge at the pre-sentence hearing
f) at the sentence hearing, some federal witness "familiar" with juvenile law (experts in state juvenile law are as rare as hen's teeth, i'm told), came into the courtroom and said outright that career criminal status would apply to my son now, since he had pled guilty to the first (remember, first it was juvenile, then it became adult because of the juvenile probation violation) charge as an adult - and that under the current guidelines he fit the requirements
g) the level went from 108 months under the guidelines to 188 months...and the judge stated in court he was "BOUND" by the guidelines to sentence our son to 188 months - as a career offender!
The question is this: the appeal (of course, in the 11th circuit!) was denied. He is now engaged in preparing a 2255 motion for filing (with five months left to file in, since we were waiting on Blakely and the Supreme Court). IF we can cite plain error (the juvenile charges being changed into adult charges,etc) AND apply Blakely, do you think he's got a shot at getting a rehearing?