No Credit for Time Already Served

snowdancer · #1 02-02-2003, 09:33 AM

I have taken a little over a month now to cool down so that I can start thinking straight over this situation that happened to my son.

My son was arrested and charged in August of 2001, though a plea agreement he pled quilty to a 3rd degree CSC and an attempt. This is a long story that I will no go into but he was ultimately sentenced to 30 months in prison.

Along comes a overzealous prosecutor who decided to bring another 3rd degree CSC charge against my son. He brought these additional charges in Septemeber of 2001. He seperated these two cases. His attorney says don't even worry about the snd charge its all a falicy. My son denied these charges wholeheartedly and his attorney assured us that this was just extra pressure that they were putting on him to plea out his first case.... So he sits in county jail for nearly a year until the beginning of August 2002 when he is finally sentenced to the 30 months they give him credit for his almost year.

In the meantime this other case just sits and sits and sits... My son still denies this claim and asked for and was granted DNA testing. So, on this other charge this girl who is claiming justin had sex with her does turn up with semen in her "rape kit" but guess what the DNA evidence proves that this semen does not match my son's DNA. It is negative. We proceed on and want a jury trial. The prosecutor moves forward. The attorney assures us this is a "no-brainer" we will win hands down. We hear this for over a year "Don't worry about it, don't worry about it".

The trial is to start in October of 2002. We get to a four days before the trial and the attorney goes to the prison to see my son and tells him "Here is a deal the prosecutor is willing to give you" "He will offer a concurrent sentence 30 months served with the sentence you are already serving". He says we can go to a jury trial but lose .... Now how can we lose with the DNA evidence? Anyways he convinces my son that if he goes to trial and loses he will serve 15 years in prison or he can take the plea and serve the sentence he is currently serving.

I begged my son not to do it to take it to trial but he got so scared he agreed to take the plea. Now mind you when we get to court for him to offer his plea he still does not say he forced this girl to have sex... The judge tells him not to lie so he doesn't. (His attorney wanted him to lie... and say "I told her I would leave my girlfriend for her if she had sex with me" this is untrue).

The judge asked him "You are pleaded to 3rd degree CSC which means you used force or coersion to have sex with her, what kind of force or coersion did you use?" and he replied "none".

The judge said did you push her? Justin said no,

Did you tell her something like you would hurt her family if she didn't have sex with you? Justin said no.

The judge said did you force her or have consensual sex with her. Justin said I had consensual sex with her".

The judge took his plea under advisement.

Then we get to the sentencing. And on December 15 2002 he sentenced my son to 30 months (as agreed) but did not issue credit for the time he already served the sentence started December 15 2002.

Never were any of us told we would not be given credit for the time he already served. He was charged in Sept 2001 with this crime and never posted bail. Should he not get credit for the 15 months he already served?

Can we appeal?

Should we appeal?

His Agreement now is 45 months not the 30 promised.

The worst part is when the judge asked about credit for time already served his lawyer sat there closed mouth and didn't even ask.

Of course this was a court appointment lawyer that I am filing a complaint with the state bar about.

Any suggestions would be greatly appreciated.

Hugs,

Jodi

lulu · #2 02-02-2003, 09:45 AM

If he plea Bargained, you cant appeal it. It is done. If he did not plea bargain I would say yes, please appeal it. I am sorry that you are going through all this. I can only imagine what you and your family is going through. If you ever need to chat, please feel free to PM me.

I would also like to add that I would check with your attorney about all I have just told you to make sure it is correct.

deb · #3 02-02-2003, 10:22 AM

Jodi,

There are guys in Michigan who are appealing that plea bargained. It is harder in some instances, but IF they have a legitimate appeal that had nothing to do with the plea they can.

You basically have an "ineffective assistance of cousel" case by the sounds of it. He did not inform of all the pros and cons, told your son to lie, had him plea when dna evidence proved his innocence, and did not open his mouth in court to have the time served count. What an ass of an attorney.

What you have to consider is the cost of an appeal and weigh it out versus the extra time. But, He also now has 2 felonies on his record? I am so sorry his attorney talked him into this.

Apeal attorneys and the process are not cheap. We have spent mega bucks. Is it worth it to us? YES. Weighing it all and the fact that Bill is innocent we had to.

I can give you our appeal attorney's name, phone number, and address if you like. He is very good. Just pm me if you want it.

Good luck!

Deb

KConnor56 · #4 02-02-2003, 11:31 AM

Lulu is right in that for the most part, you can't appeal a plea bargain, but there are a few exceptions to this, & I believe your sons case falls into this area. Your not appealing the case, or the plea itself, just the calculation of time served, which as far as I know is an appealable aspect. The only problem is, that appeals taking as long as they do, he might be out by the time your appeal is heard. Most appeals have to go through many courts before they are won, very few are won at the first hearing. If you have the money, & the patience to go through with it, I wouldn't do it, but thats just me, & I'm wierd anyway. It's a judgement call that you need to discuss with your son. -------Ken

life2thesequel · #5 02-02-2003, 11:32 AM

I'm guessing your son is in WI....
Here are a few of the codes I found that might pertain.
I just did a quick search.. Pardon if they aren't more use.

At least they'll give you some idea of what SHOULD have happened. You can judge if it did or not.

http://folio.legis.state.wi.us/cgi-b...jump=ch.%20974

http://folio.legis.state.wi.us/cgi-b...jump=ch.%20967

This last one is the one I was really looking for. Most states have some provision Civil or Crim proceedure which allows for a "recalculation' or modification of sentence. It's a motion you can make (in KY at least) even if you've plead guilty. If your Jailtime credit is wonky or if you have an argument for why some sentences could/should be running concurrent-- you'd file a motion based on the statute...

Hope this helps.... Filing a motion to fix it doesn't guarentee that a ruling judge will see it your way, but at least you've tried... and once they've ruled (against you) it may be something which can be appealed. Again, I've only KY experience to go on.

http://folio.legis.state.wi.us/cgi-b...jump=ch.%20808

snowdancer · #6 02-02-2003, 05:12 PM

Actually life2sequel, he is in Michigan. But see the plea was 30 months concurrent sentence but that is not what he got.

Yes, his lawyer was totally useless, and boy did he ever get more than a few choice words from me. I am researching the Michigan Rules of Professional Conduct that clearly state that he must provide his client with an informed understanding of his legal rights and obligations and explains their practical implications.

I do not believe he did so as "concurrent" means to me no extra time.

Justin is doing some research of his own in the law library and he has found some information that he is sending to me regarding them not granting him credit for the time he already served. Apparently there is a law that states he must be granted credit for time served if he never posted a bond in this case (which he didn't). We didn't go to court every 100 days either as is required by law this case should have been dismissed. We went to court in Sept of 2001 then not again until October of 2002. No appearances were held whatsoever no pretrial conferences or any of that other BS the courts use to make it look like they actually are following the law...

Thanks for the helpful information.

Hugs,

Jodi

bella · #7 02-05-2003, 12:41 AM

My guy is in the same situation as far aas crdit for times served...through his research he was able to find that unless the time is ordered co-terminate as well as concurrent you will not get credit for the time served from the first charge. He is currently working on this since he was also under the impression that concurrent with credit for timed served meant just that.

lulu · #8 02-05-2003, 09:21 AM

In SOME cases, such if he was pick up on a blue warrent, he will not get credit severed. I am not sure of the laws with that though. I just know we seen it happen alot. As Ken said, by the time that you do get in back to court, he will be already out.

Good luck

KConnor56 · #9 02-10-2003, 09:52 AM

here is a case I ran across that may help you, there may also be cases that this one cites as precedence that may help you.

=
CRIMINAL LAW & PROCEDURE, SENTENCING

PEOPLE v. HILGER, No. B156790 (Cal. 1st App. Dist. January 09, 2003)
Where the trial court did not tell appellant either that he might
serve more than the upper term, or that his waiver applied to prison
time, he was ignorant of the temporal consequences of his waiver,
making a waiver of custody credits unknowing and unintelligent.

To read the full text of this opinion, go to:
[PDF File]

http://caselaw.lp.findlaw.com/data2/...es/b156790.pdf

This case sites prrevious cases that deal with prisoners receiving credits. You can search these cases right from the site findlaw.com/

If you need any help let me know---------Ken