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Michael J, Esq.
Michael J, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 2949
Experience:  Licensed Missisippi Attorney; Criminal Law, Family Law, Personal Injury, and Civil Defense
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Defendant was charged for a crime in 2007. The DA had evidence

Resolved Question:

Defendant was charged for a crime in 2007.
The DA had evidence from their deposition from the "victim" himself who stated that she did not commit the crime.
The DA also had the facts from their own investigation that she did not commit the crime.

So, the question becomes one of why did the DA pursue a charge that they KNEW had no evidence?
The answer is: so they could manipulate the Statue Of Limitations rule...they needed to have the false charge that they claim occurred in the year 2005 in order to be able to pursue another charge that surrounded seperate incident that occurred in the year 2002.
This bogus charge made it an "ongoing theft", getting them around the statute of limitations of the 2002 claim
But their evidence shows the defendant was not involved.


The history of the relationship of the defendant and accuser is long and complicated. We will provide facts to all of that if you need the full picture,but for now,we would like to know if there is any assistance you can give us if there is clear evidence to support that the DA threw in a false charge in order to manipulate and allow them to pursue charges that they claim happened years ago in 2002, clearly outside of the statute of limitations.

Regarding the evidence to prove that defendant was not guilty of the crime:

The false charge was theft...items were in a storage unit that was leased by the defendant and her daughter. The accuser reported to authorities that he went to Colorado to inquire about a few personal items in storage that included papers and some glass.
The accuser testified in his deposition that after he moved out of the shared residence with defendant in another state that he never contacted her for his things, never gave his phone number or address, and that he specifically did not want her to know where he lived. He also admitted that he had given defendant durable and statutory power of attorney that had never been revoked.
The investigation report by the DA showed that the DA discovered that defendant resided in another state and that she was not involved with moving items out of storage. It was her daughter and hired help that transferred the storage items into daughters garage.This information was given by the storage property manager.

It was clear that defendant was not involved in this crime in 2005 and clear that the DA knew this.
Defendant believes that there is strong evidence of her innocence regarding the other charge of the 2002 incident too that was tagged on to make it an "ongoing theft" but that is material fact that would be determined by a jury.
If the false charge did not exist in 2002, the DA would not be able to file charges under the statute of limitations rule.

The case was settled by plea bargain, however, under appeal, the court of appeals ruled that the sentence was illegal and that case is remanded back to district court and the defendant will withdraw her guilty plea.

So we will start over now at square one.This time there will be no plea bargain as defendant wants to go to trial.
The first issue is regarding if there is anything that can be done about the bogus 2005 charge that the DA used to manipulate and get around the statute of limitations rule on order to go after the 2002 accusation (also false)
Can the DA be held responsible in any way for doing this?
Can we have a seperate hearing on the bogus 2005 charge and challenge this in some way before even looking at the other charge? Is it illegal for the DA to add a charge that they know is not valid?
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Michael J, Esq. replied 3 years ago.

Michael J, Esq. :

Hello - Thank you for contacting JustAnswer. My name is Michael; I look forward to helping you with your criminal problem today.

Michael J, Esq. :

District Attorneys have wide discretion in the cases they bring. Often, there is evidence supporting both sides and it is impossible to prove that a District Attorney "knew" that the 2005 charge was "bogus". If I were the defense attorney, I would move to dismiss the 2002 charge based on the flimsy nature of the 2005 offense. If the evidence is there that the defendant had nothing to do with it (as you state), the Judge should be able to see through the DA's tactic and may dismiss the case.

Michael J, Esq. :

Unfortunately, you're not going to get anywhere by going against the District Attorney specifically in this instance. Their latitude is pretty wide.

Michael J, Esq. :

If you have any follow up questions, I'll be happy to answer them.

Customer:

Thank you.

Michael J, Esq. :

Are you there?

Customer:

yes

Michael J, Esq. :

Do you have any further questions?

Customer:

If the defendant does get the 2005 charge dismissed at some point, does that automatically dismiss the 2002 charge due to the statue of limitations rule?

Michael J, Esq. :

If the 2002 case is only alive because of the 2005 charge, yes, it would get rid of both.

Michael J, Esq. :

I wish you the best of luck in 2011! Don't forget to press ACCEPT if my Answer was helpful. If you need me to clarify my Answer or ask a follow up question, just ask! My goal is to provide an outstanding Answer, so give me a chance.


 


Regards,


 


Michael

Customer:

Ok, thanks. We have many more questions, but to be fair we will post them seperatley so you are properly credited. Thanks again

Michael J, Esq. :

If you accept this question, I can answer follow up questions here.

Customer:

ok

Michael J, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 2949
Experience: Licensed Missisippi Attorney; Criminal Law, Family Law, Personal Injury, and Civil Defense
Michael J, Esq. and other Criminal Law Specialists are ready to help you
Expert:  Michael J, Esq. replied 3 years ago.
If you have any follow up questions, you may ask them here.

Thanks,

Michael
Customer: replied 3 years ago.

The ohter question is regarding the fact that the criminal and civil cases were meditated together..the criminal memorandum states:" any violation of the civil case is a violation of probation". The civil case also refers to the criminal case.

The question is, given the cases dovetailed each other, and now the criminal case has been remanded back to the court for the guilty plea to be withdrawn, is there anything we can do about also having the civil case agreement thrown out and started over? Defendant wanted to go to trial on the civil case but did not have the money to do so, so she settled the civil case out of fear of the DA was demanding her to do so in order to plea. The reason for the concern is that if the civil case stands as is now- that is the money part of this case that is currently being made on payments- if they get the money no matter what on the civil case, that puts the defendant at an unfair position because the defendant no longer has the bargaining power to negotiate another plea if she wanted to explore that for some reason. They (the DA) wanted the money as their first priority...if this stands and they have the money agreement at the start, this would be grossly unfair to the defendant.

How do you unwind a civil restitiution agreement that is in effect if it was tied with a criminal case that has now been remanded back to district court to withdraw plea and start over?

Expert:  Michael J, Esq. replied 3 years ago.

Even though a violation of the civil case is a probation violation, the two cases are wholly separate and do not depend on each other. Each has a separate burden of proof.

The settlement in the civil case can't be overturned simply because the defendant won't have bargaining power in the criminal case - it doesn't work like that. If there was some duress involved or promises made by the DA attorney to get the Defendant to plead to the civil case, the person's attorney should make a motion to overturn the civil case based on unfairness, fraud, and duress.

Michael
Michael J, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 2949
Experience: Licensed Missisippi Attorney; Criminal Law, Family Law, Personal Injury, and Civil Defense
Michael J, Esq. and other Criminal Law Specialists are ready to help you
Customer: replied 3 years ago.
Thanks, XXXXX XXXXX the attorney stated to the defendant during the mediation this: " This is a matter of economics... If you don't both of these cases today, I will have to withdraw from the cases and you will have to do this on your own" Would that be considered unfairness or duress? In addition, the defendant left the mediation early, leaving her attorney to finish writing up the civil agreement that she had signed...on the back page of civil agreement there was some language added that defendent was not aware of. The language has outrageous terms...one being that the defendant will have to pay double the judgement if any of the properties go into forclosure. If any do go into forclosure, the defendant will have to pay double the amount ( instead of paying $115,000 she will have to pay $230,000) Defendant made it clear at the mediation that the Arizona properties were underwater by at least 50%, so the fact that this was added to force her to pay for and keep properties that have no value is very odd, and she does not agree to it. Anything there in your opinion?
Expert:  Michael J, Esq. replied 3 years ago.

If the attorney added something after the Defendant signed it, and the Defendant claims she did not agree to the added language, the Defendant could certainly move to rescind the settlement offer, it would simply be up to the Judge to decide whether it should occur or not.

Also, the Defendant could look into filing malpractice charges against the attorney for adding language which she specifically did not agree with.

Michael
Michael J, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 2949
Experience: Licensed Missisippi Attorney; Criminal Law, Family Law, Personal Injury, and Civil Defense
Michael J, Esq. and other Criminal Law Specialists are ready to help you

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