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johngibson15219
johngibson15219, DUI Lawyer
Category: Criminal Law
Satisfied Customers: 159
Experience:  Admitted to Pennsylvania Bar October 1980.
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mY FRIEND WAS FALSELY ACCUSED OF TOUCHING HIS 13 Y/OLD DAUGHTER.

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mY FRIEND WAS FALSELY ACCUSED OF "TOUCHING" HIS 13 Y/OLD DAUGHTER. hE WAS ARRESTD, JAILED AND IT TOOK 2 WEEKS TO BAIL HIM OUT. THIS SUPPOSEDLY TOOK PLACE IN SOUTHERN MISSOURI - KNOWN FOR BEING HARSH ON "SEX OFFENDERS". THERE WAS NO INVESTIGATION - HIS LAWYER ADVISED HIM TO PLEA OUT AND HE WOULD GET PROBATION - IT WOULD BE AN ADDITIONAL $10,000.00 TO GO TO COURT AND HE WOULD PROBABLY LOSE ANYWAY. MY FRIEND DIDN'T WANT TO BUT FOR MONTHS HIS LAWYER SAID THAT WAS THE ONLY THING THAT WOULD KEEP HIM OUT OF PRISON. HE FINALLY AGREED - HE DID A "PSI" WHICH SHOWED HE WAS MINIMUM RISK, HE HAS AN EXCELLEBT JOB( WHICH THEY ARE HOLDING FOR HIM) AND NO PRIOR CRIMINAL HISTORY. HE WENT TO COURT AND THE JUDGE DIDN'T ACCEPT THE PLEA AND SENTENCED HIM TO 7 YEARS. HIS LAWYER SAID THER WAS NOTHING ELSE TO DO. HE HAS BEEN IN PRISON 44 DAYS AND IS FRUSTRATED AS HE CANNOT FIND ANY INFORMATION OR HELP FROM THE CASEWORKERS THERE. WHAT CAN I DO TO HELP GET THIS REVERSED?
Submitted: 6 years ago.
Category: Criminal Law
Expert:  johngibson15219 replied 6 years ago.
It is an unfortunate fact of life these days that convictions are almost automatic for a number of offenses. What I have been doing in cases like that is advising clients to plead no contest or nolo contendere. I think that is the only ethical way for an attorney to handle cases where the client does not admit guilt. I've noticed that other attorneys have been advising clients to plead guilty in some cases because that results in lighter sentences in the plea bargains and Judges favor plea bargains but it is troublesome to many of us on ethical grounds.

Your friend should file a Motion to Withdraw his plea. He needs to contact the Office of the Public Defender in your County if he cannot afford an attorney. Here is the Rule in Missouri:

29.07. Misdemeanors or Felonies - Sentence and Judgment

(a) Pre-sentence Investigation
    • (1) When Made. When a probation officer is available to the court, such probation officer shall, unless otherwise directed by the court, make a pre-sentence investigation and report to the court before the imposition of sentence or the granting of probation. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty.
    • (2) Report. The report of the pre-sentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition, his social history, and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant. The probation officer shall secure such other information as may be required by the court and, if directed by the court, such investigation shall include a physical and mental examination of the defendant. Before making any authorized disposition the court shall, upon request of defendant or the attorney for the defendant, allow the defendant and the attorney for the defendant access to the complete pre-sentence investigation report and recommendations.

(b) Sentence.
    • (1) Allocution and Imposition of Sentence. Sentence shall be imposed without unreasonable delay. When the defendant appears for judgment and sentence, he must be informed by the court of the verdict or finding and asked whether he has any legal cause to show why judgment and sentence should not be pronounced against him; and if no sufficient cause be shown, the court shall render the proper judgment and pronounce sentence thereon. If the defendant has been heard on a motion for new trial, and in all cases of misdemeanor, the requirements of this subparagraph are directory and the omission to comply with them shall not invalidate the judgment or sentence.
    • (2) Presence of Defendant. If the defendant has been convicted of a felony, he must be personally present when sentence and judgment are pronounced. A defendant convicted of a misdemeanor must be personally present when sentence and judgment are pronounced unless the court, the prosecuting attorney and the defendant consent to the absence of the defendant.
    • (3) Notification of Right to Appeal. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and the right of a defendant who is unable to pay the cost of the appeal to apply for leave to appeal in forma pauperis.
    • (4) Examination of Defendant. If a defendant has a right to proceed under Rule 24.035 or Rule 29.15, the court at the conclusion of final sentencing shall advise the defendant of such right and shall examine the defendant as to the assistance of counsel received by the defendant. The examination shall be on the record and may be conducted outside the presence of the defendant's counsel. At the conclusion of the examination the court shall determine whether probable cause exists to believe the defendant has received ineffective assistance of counsel.

If the court finds that no probable cause of ineffective assistance of counsel exists, trial counsel may continue to represent the defendant. If the court finds that probable cause of ineffective assistance of counsel exists and the defendant is entitled to an appeal and desires an appeal, the court shall order trial counsel to file a timely notice of appeal. If the court finds that probable cause of ineffective assistance of counsel exists, within ten days of the judgment of conviction becoming final trial counsel shall withdraw and the court shall cause new counsel to be appointed if the defendant is indigent. If an appeal is filed, new counsel shall perfect the appeal. Whether or not an appeal is filed, new counsel shall be directed to ascertain whether facts and grounds exist for the filing of a motion pursuant to Rule 24.035 or Rule 29.15. If such facts and grounds exist, new counsel shall timely file the appropriate motion.

(c) Judgment. A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly.

(d) Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

(e) Probation and Parole. Any court may place on probation and parole any defendant eligible for judicial parole under the laws of this state and, to this end, may suspend the imposition or execution of sentence of any person.

(f) Revocation of Probation or Parole. A court may revoke probation or parole upon compliance with Section 559.036, RSMo, but not otherwise. The defendant may be conditionally released pending final hearing.

(Adopted June 13, 1979, eff. Jan. 1, 1980. Amended Feb. 11, 1987, eff. Jan. 1, 1988.)

COMMITTEE NOTE - 1980
    • The source of subparagraph (a)(1) is the first two sentences of prior Rule 27.07(b). It changes the prior rule in that it allows presentence investigations in misdemeanor cases when a probation officer is available.
      Compare: Section 557.026, RSMo 1978 and Fed.R.Crim.P. 32(c)(1).
      The source of the first two sentences of subparagraph (a)(2) is the last two sentences of prior Rule 27.07(b).
      There is a change in that the court rather than the probation officer will decide whether there is to be a physical or mental examination of the defendant.
      Compare: Fed.R.Crim.P. 32(c)(2).
      The source of the last sentence of subparagraph (a)(2) is > Section 557.026, RSMo 1978.
      Compare: Fed.R.Crim.P. 32(c)(3).
      The sources of the first sentence of subparagraph (b)(1) are prior Rule 27.07(a) and > Fed.R.Crim.P. 32(a)(1).
      The second sentence of subparagraph (b)(1) is substantially the same as prior Rule 27.09.
      Compare: Fed.R.Crim.P. 32(a)(1).
      The last sentence of subparagraph (b)(1) is substantially the same as prior Rule 27.10.
      The source of subparagraph (b)(2) is prior Rule 27.08.
      Subparagraph (b)(3) is new. It is the same as the first sentence of > Fed.R.Crim.P. 32(2).
      Paragraph (c) is new. It is the same as the first two sentences of > Fed.R.Crim.P. 32(b)(1).
      Paragraph (d) is the same as prior Rule 27.25. It is also the same as > Fed.R.Crim.P. 32(d) with the reference to nolo contendere omitted.
      Paragraph (e) is substantially the same as prior Rule 27.07(c).
      Compare: Fed.R.Crim.P. 32(e).
      Paragraph (f) is new.
johngibson15219, DUI Lawyer
Category: Criminal Law
Satisfied Customers: 159
Experience: Admitted to Pennsylvania Bar October 1980.
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Admitted to Pennsylvania Bar October 1980.