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Legal-Guru
Legal-Guru, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1355
Experience:  Experienced Criminal Trial Attorney since 1998.
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This question is for Legal-Guru I need to clarify a question

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This question is for Legal-Guru:
I need to clarify a question I asked before.. you said:
" If the charge was dismissed as part of a plea agreement, it's possible that the DA would be bound by that agreement and prohibited from re-filing unless the court of appeals order undid the plea agreement. I wasn't entirely clear on that part of it".

To be clear, the plea bargain goes away and the case starts from the beginning because the Court Of Appeals remanded the case back with instructions for the defendant to withdraw the plea. So, it looks like this automatically means the other charges that were previously dismissed as part of the plea bargain now come back too.
BUT, the difference here is that the DA had previously stated in court , and on the record that one of the charges was being dismissed due to the fact that the one person is now deceased...she did not say it was part of the plea bargain, she just gave being deceased as the reason to dismiss to the judge.
NOW that the case is remanded ( noone expected that the case would be remanded as the appeal was only to challenge unfair interest added, and was far more that agreed to in mediation) the DA is trying to bring back a dismissed charge and saying that it was dismissed as part of the plea bargain only. Her prior statement to the judge say otherwise,but I am wondering if what she said is enough to claim vindictive prosection?
It appears that the defendant was first being overcharged with a bogus charge just to boost their case and manipulate the statute of limitations , then she tried to add on over 50k that was not agreed to ( the COA said it was unfair and reversed and remanded), and now she is bringing back a charge that she previously dismissed to the person being deceased.That did not change. In addition, they have the actual evidence on tape to prove that the defendant is not guilty of the accusation.
We had no idea that the DA is so dishonest and does not play fair, so we need to challenge some of these things, if we can. It seems like these people are given so much power and are allowed to abuse it with no consequence. Vindictive Prosecution seems like it fits,but not sure..
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Legal-Guru replied 2 years ago.
Good eveningCustomer... yes, if the defendant goes ahead and withdraws his/her plea, then the other charges can be refiled assuming the statute of limitations has not run out. To clarify, the dismissed case does not come back to life automatically, but can be refiled by the DA.

The term "vindictive prosecution" means one "that penalizes a defendant for exercising his or her constitutional rights". People v. Butler, 224 P.3d 380 (Colo.App. 2009). "[A] defendant must provide some credible evidence tending to show the existence of the essential elements of a vindictive prosecution defense in order to obtain discovery from the prosecution on this issue. The some credible evidence standard for obtaining discovery on a claim of selective or vindictive prosecution is 'rigorous.' This is so because courts should be hesitant to second guess a prosecutor's charging decisions, the basis for prosecutions, or the prosecutor's motives because such inquiry may delay criminal proceedings and threaten to chill law enforcement. Requiring a rigorous showing of some credible evidence 'balances the Government's interest in vigorous prosecution and the defendant's interest in avoiding selective prosecution.'” Butler, supra (citations omitted).

Normally it does not matter why a case is dismissed, but under Colorado law, it seems the Defendant does have an argument that the DA is now trying to penalize him/her for pursuing and winning the appeal on the other case.

Legal-Guru, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1355
Experience: Experienced Criminal Trial Attorney since 1998.
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