How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Joseph Your Own Question

Joseph
Joseph, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 7279
Experience:  I have 15 years experience in criminal litigation including several years as a felony prosecutor
18539850
Type Your Criminal Law Question Here...
Joseph is online now
A new question is answered every 9 seconds

Someone I want to help was convicted of sexual battery and

Customer Question

Someone I want to help was convicted of sexual battery and received 130 year sentence. He was never arrested before and had a consenual relationship with a 17 yr. old. He has been in prison since 2004. How can I help him??? I feel it is a grave miscarriage of justice. He realizes that he made a stupid mistake, but must they take his whole life?? He is in his 50'S. They offered him a plea deal and his public defender never advised him to take 12 yrs, so he did not take it as he did not feel he was guilty of sexual battery. I know ignorance is no excuse....but he was ignorant of the law and his atty was useless at the time. He is in Taylor C.I. in Perry, Fl. This happened in Polk Cty., Fl. Any assistance would be greatly appreciated. Marilyn
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Joseph replied 2 years ago.

I am a Florida criminal defense attorney and I would be glad to try to help. I just need some clarification first....

.

So was he convicted in a trial?

.

What, if anything, has he done to take the matter back to court since the conviction in 2004? For example, has he filed any motions or appeals?

.

Thank you.

Customer: replied 2 years ago.
No he has not..He has had no one to help him. His parents are deceased. Can he get a new trial?. He was so destroyed by this sentence that he gave up and since I heard about his plight..I told him I would try to help.
Customer: replied 2 years ago.
Relist: Other.
I can wait for Joseph
Customer: replied 2 years ago.
Relist: Other.
I can wait for Joseph I did not get an answer. I need an answer to my originalo question
Customer: replied 2 years ago.
Relist: Other.
I did not get an answer
Expert:  Joseph replied 2 years ago.
I'm still here, I'm just working with several customers this evening. I'm working on your answer now. I thank you for your patience.
Customer: replied 2 years ago.
I am very patient and appreciate you working on this as it is a horrific 'miscariage of justice', in my opinion.
Expert:  Joseph replied 2 years ago.

I hate to be the bearer of bad news, but there is very little recourse for your friend due to the facts of his situation.

.

In Florida, a criminal defendant has a constitutional right to an appeal from any jury conviction. However, an appeal must be filed within thirty days of the conviction. As he was convicted about eight years ago, his appellate rights ran long ago. Clearly this is not a viable option for him.

.

Florida also permits a criminal defendant to file a motion arguing ineffective assistance of counsel. For example, your friend could have argued that his attorney did not keep him properly informed of the plea negotiations. However, Florida law requires that such a motion be filed within two years of the conviction. Again, with eight years having passed, this is no longer an option.

.

I asked about his post-conviction efforts thus far because any such efforts might have extended these time periods. For example, if he had filed a motion for ineffective assistance of counsel around the two year mark and lost that motion, he could have then filed an appeal related to that motion.

.

For your friend to have any viable course of action at this time, he would need to have something extremely unusual. Florida does not put a time limit on many "fundamental error" type of issues. As an example, an illegal sentence is subject to an appeal at any time. By this I mean, if your friend's maximum permissible sentence was 100 years but he got 130 years, he could appeal that at any time. Another example might be if it was recently discovered that the judge was somehow related to the victim. As you can see, this would be something very unusual. While I do not have any definite statistics, I would suggest that such a fundamental error occurs in about .5% of cases, it is that rare.

.

I regret that my answer is unfavorable, but please understand that it would be unfair to you (and unprofessional of me) to provide you with anything less than a truthful
response.

.

Please let me know if you need clarification on anything.

.

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

Customer: replied 2 years ago.
What else could be a 'fundamental error'? You mean he has to stay there for the rest of his life????
Expert:  Joseph replied 2 years ago.

Please don't shoot the messenger, I didn't create the situation, I'm merely trying to explain the situation.

.

As to that, your friend has at least two significant issues working against him; he was convicted of extremely serious charges and he let too much time pass before doing anything. He could have filed an appeal...about eight years ago. He also could have filed a motion arguing ineffective assistance of counsel...about six years ago. These time limits were created because the law likes finality. As the time limits expired long ago, these are simply not viable options.

.

While my firm is not located in Polk County, we have handled several cases there. From my experience, I can tell you that the judges in Polk County are generally considered to be rather harsh when it comes to sentencing, especially for sex offenses. However, it is not unlawful to be harsh and the sentences they hand out are typically upheld on appeal.

.

As to fundamental error, you have not described anything yet that makes me think that such an error occurred here. Also, it would be impossible to provide an exhaustive list of what constitutes fundamental error, every case has its own specific facts and this creates a great deal of variation. Some other possibilities might include where the jury was given improper instructions that may have led to the conviction, where the prosecutor was permitted to make clearly improper arguments or where the judge incorrectly let in evidence that was extremely prejudicial to the defendant.

.

Please let me know if you need clarification on anything.

.

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

Joseph, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 7279
Experience: I have 15 years experience in criminal litigation including several years as a felony prosecutor
Joseph and 5 other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.

The prosecutor was permitted to make clearly improper argument sand the judge let in evidence that was extremely prejudicial to the defendant. How do you ask for a new trial?

Expert:  Joseph replied 2 years ago.

He would file an appeal arguing that these issues constituted fundamental error and that the time restriction should not apply.

.

I will forewarn you, the time limitations will clearly be an issue in any form of post-conviction relief your friend pursues. To prevail here, your friend would need the appellate court to rule not only that there was an error that should be addressed but also that, due to the nature of that error, the time limitations should not apply. In a timely appeal, the defendant only needs to prevail on the issue of there being an error that should be addressed, your friend has an additional hurdle he needs to clear. In short, nothing he tries will be easy.

.

Please let me know if you need clarification on anything.

.

I hope you found my answer helpful. If so, please click on the green ACCEPT for my answer. This is necessary for me to be paid for my work and so that I can get credit for assisting you. Even if you are a subscription member, you will need to click ACCEPT. Your question will not close, and you will still have the opportunity to follow-up if needed. Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated! Thank you and good luck!
.

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

Customer: replied 2 years ago.

Hi Joseph! Can I get transcripts of the court proceedings regarding this case? Should I contact the Polk County Ct. or contact the Public Defender?. How to file an appeal and what does it cost to do so? .

Expert:  Joseph replied 2 years ago.

Yes, you should be able to get transcripts. To request the transcripts, you would begin by contacting the Polk County clerk of court. You will need the name of the defendant, the name of the judge and the relevant dates. With that information, the clerk can tell you how the proceedings were recorded, whether by a court reporter or by way of a digital recording device. You can then order the transcripts from the relevant entity.

.

Depending on the length of the proceedings, the transcripts could get quite expensive. If the clerk provides a fee that is too high for you, your friend might consider seeing if he can get the public defender appointed for an appeal or being declared indigent for purposes of costs. Either way, the transcripts would then be paid by the State on his behalf.

.

The filing of an appeal begins with the filing of a "notice of intent to appeal". The notice is filed with the clerk for the appellate court and that initiates the process with each party filing briefs as the appeal moves forward.

.

As to costs, that can vary widely from case to case. There will be a filing fee for the clerk, I believe that is fairly nominal, perhaps a couple hundred dollars. As we've discussed, transcript fees will depend on the length of the proceedings, it may be as little as a few hundred dollars or as much as several thousand, the clerk can tell you the fee in advance. If an attorney is hired, those fees will vary widely as well. I have heard of attorneys doing appeals for as little as about $2,000 and as much as about $25,000. If you are interested in attorney fees, my thought would be to talk to 3 or 4 appellate attorneys in your area to get a better idea. And, of course, the public defender could be appointed if your friend is eligible.

.

Please let me know if you need clarification on anything.

.

I hope you found my answer helpful. If so, please click on the green ACCEPT for my answer. This is necessary for me to be paid for my work and so that I can get credit for assisting you. Even if you are a subscription member, you will need to click ACCEPT. Your question will not close, and you will still have the opportunity to follow-up if needed. Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated! Thank you and good luck!
.

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends. Norma Pensacola, FL
< Last | Next >
  • Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends. Norma Pensacola, FL
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
 
 
 

Meet The Experts:

 
 
 
  • Fran L.

    JustAnswer Criminal Law Mentor

    Satisfied Customers:

    8061
    18 yrs of NYC public defense. Extensive arraignment, hearing, trial experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/RE/retiredlawyer/2012-6-6_19326_franL.64x64.jpg Fran L.'s Avatar

    Fran L.

    JustAnswer Criminal Law Mentor

    Satisfied Customers:

    8061
    18 yrs of NYC public defense. Extensive arraignment, hearing, trial experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    2079
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/NA/nathanmoorelaw/2011-5-31_21375_headshotbig.64x64.jpg Nate's Avatar

    Nate

    Lawyer

    Satisfied Customers:

    1625
    Over 10 years of criminal defense practice.
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Lawyer

    Satisfied Customers:

    1434
    30 years legal experience
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Lawyer

    Satisfied Customers:

    1418
    16 yrs. of experience including criminal law.
  • http://ww2.justanswer.com/uploads/marshadjd/2009-6-1_194320_marshajd.jpg Marsha411JD's Avatar

    Marsha411JD

    Lawyer

    Satisfied Customers:

    1380
    Licensed attorney with 27 yrs. exp. in criminal law
  • http://ww2.justanswer.com/uploads/RO/RobertJDFL/2012-6-6_175352_7538220120606.64x64.jpg RobertJDFL's Avatar

    RobertJDFL

    Lawyer

    Satisfied Customers:

    1300
    Experienced in multiple areas of the law.