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Lawmoe
Lawmoe, Criminal Defense Lawyer
Category: Criminal Law
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Experience:  More than 19 years of experience as a Criminal Defense Lawyer
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In May of 2004 I was convicted on two counts of 288.5 and sentenced

Customer Question

In May of 2004 I was convicted on two counts of 288.5 and sentenced to 6 years with 3 years of parole as stipulated in a plea . I was released from prison on Dec 14 2008 and am now on parole. I have no parole violations. I have just been told after 2 and a half years of no problems that I have 5 years of parole. I thought the "ex post facto" clause of the Constitution forbids adding time to my sentence after I have been sentenced. Am I wrong ?
Submitted: 6 years ago.
Category: Criminal Law
Expert:  AlexiaEsq. replied 6 years ago.
Hi,

It would appear that you were sentenced to 6 in + 3 paroled = 9 years.

You got out in 4 years and so there may be 5 years left of your sentence, to fulfill the 9 years. This may not be ex post factro then, if your sentence was for 9 years. There is nothing added, in fact they allowed you to change 2 of your 6 years in, to parole,which means the 3 on parole becomes 5. It is still 9 years, either way.

Let me know if this is unclear.

Good luck.

Because I help people like you here, for a living---this is not a hobby for me---I sincerely XXXXX XXXXX abiding by the honor system with regard to Accepting answers, by Clicking your ACCEPT button now. Feel free to follow up after, if you need clarification. An Accept also assures that I can assist you again. A BONUS is a wonderful way to tell the expert her time and effort are appreciated. I wish you the best in your future.
Customer: replied 6 years ago.
I was credited time spent in prison since Nov of 2003, also I thought I was elligable for time off for good behaviore at a rate of 75%. so my time inside was counted(I was told) as 5 years and 1 month . I have been told ( which is why I am checking with a professional ) that the extra two years is due to changes in the Law here in California in 2006 and that they just "Grandfathered" everyone in ?
Expert:  AlexiaEsq. replied 6 years ago.
I am going to opt out, as I am unfamiliar with this grandfathering idea - so another expert can chime in here. Hold tight!
Customer: replied 6 years ago.
Ok Thank you !
= )
Expert:  Lawmoe replied 6 years ago.

Ex post facto clause protects individuals against subsequently passed laws that change the individual's substantive rights without notice and a right to be heard on the issue. In order to establish a claim under the Ex Post Facto Clause: (1) the challenged state action must be a law; (2) the law must apply to events occurring before its enactment; and (3) the law must be detrimental to the person to whom it is
being applied. See Nulph v. Faatz, 27 F.3d 451, 455 (9th Cir.1994)

In most cases, where the change in the law is deemed procedural rather than substantive to the individual's rights, it does not fall within the perview of the ex post facto clause.


However, there is some support for the contention that a change in sentencing credits violates the Ex Post Facto Clause. You must deonstrate that:


1. The law change occurred after sentencing;

2. That the change had retroactive application to your sentence; and

3. That the change was to your detriment.


In an unpublished case in the federal Court of Appeals, 9th Circuit, Fleming v. Oregon Board of Parole, parole regulations were amended from allowing a 20% cap in the reduction in jail time for the complete sentence to a reduction of seven months for each 3 year parole review.

Fleming exhausted his remedied in State court and then filed in Federal Court
seeking a determination that the change in the parole regulations voiolated the
ex post facto clause. The Court decided that
parole regulations affect "eligibility for reduced imprisonment" such that they would be "a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed."


In short, it would seem that, on its surface, you have arguments that the change violates the ex post facto clause.

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Lawmoe, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 2415
Experience: More than 19 years of experience as a Criminal Defense Lawyer
Lawmoe and 2 other Criminal Law Specialists are ready to help you
Customer: replied 5 years ago.
Thank you for your help.
This is what I need to know.
Also you provided me with a short check list to verify wether or not I should ,or could proceede.

Again , Thank you for your help.

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