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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 17389
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My fiance and father of my two small children was just extradited

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My fiance and father of my two small children was just extradited to Texas on Thanksgiving day. When he was 17 years old he was at a concert and was smoking pot. A police officer was there and when the officer came up to him the groupies who Josh traveled with beat up the officer. He was taken outside and he says beat up by a bunch of policemen and then brought to a jail unit with high security w/violent offenders where he daily had to fight for his food and was beat up more. When he went to court he was offered 10-199 years if he didn't sign the plea bargain they had wrote up for him, which gave him 10 years of probation. He still was not released and ended up serving 27 months (3 of which were work release). When his probation started he was not able to transfer it from Texas to Indian and at one point lost his job and was no longer able to afford to drive to report, I don't know if he tried to work anything out with his probation officer, but I think he had violated w/not paying fees here and there enough that he was afraid he'd get the maximum. He may now be offered a deal of 3-4 years which may or may not include the 27 months he served and paying back of probation fees, or else will need to go to a contested trial. What makes the most sense, does this deal sound reasonable or would you recommend the contested trial?
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 4 years ago.
Jacustomer,

I don't see that there's anything to try. He's been sentenced already. Probation is essentially a suspended sentence and by violating the terms of that he can be resentenced to anything up to the maximum for the crime to which he has pled.

He can see if with an attorney he can get something better. And he can have a hearing on the violation. But I don't see what he can contest, unless you've left something out.
Customer: replied 4 years ago.
We have an attorney who he had retained a year and a half ago when we considered dealing with this then. But at that time the prosecuting attorney was someone who had a long standing relationship w/our attorney, and the PA said that he knew this judge and that the judge wasn't going to give him less then 3-4 years. Now it's a new prosecuting attorney and it may be a new judge on the new year. The attorney has told us that the only way he will represent Josh is either if he agrees to the agreement already made or pays an extra fee for a "contested hearing" which our attorney said will be what will happen if Josh doesn't make the agreement coming up. He did violate probation, you're right, there's nothing to contest on that point, I guess I'm not really sure what a contested hearing is, perhaps this attorney just wants another case? The attorney said that witnesses would be brought in on both sides.
Expert:  Zoey_ JD replied 4 years ago.
Jacustomer,

Thanks! That's more like it. He's entitled to a hearing on violation of probation, but you used the word "trial" and he gave up his right to try the case by taking a plea in the first place.

He can contest the grounds for the violation, and I have no idea whether his case would be good, bad or indifferent without having the whole record of the case in front of me. But if he loses the hearing, he'll likely end up with a stiffer sentence than what they are currently offering him. On the other hand, if he's got any facts that can be worked with, such as the 27 months already served, his lawyer can use them to try to get a better deal than what probation and/or the prosecutor would like to see him take.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 17389
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.