If you file for post conviction relief in Arizona for a misdeamor and the case goes back to the original Judge, can that judge dismiss the charges after reviewing the case? Who decides if the case is dismissed?
State/Country relating to question: Arizona
Hello.Usually the case does not go back to the original judge. But regardless who the post conviction is assigned to, the judge does not generally dismiss the case. The remedy in a post conviction case in most cases is to vacate the conviction and to order a new trial. Then, at that point, the prosecutor will decide if he or she wants to retry the case. If not, the prosecutor may dismiss it. But the judge does not dismiss the case but rather determines whether the conviction is valid and if not, orders the conviction vacated.
Actually, it was for a plea deal and what I've read about Az law , it says it goes back to the judge that issued the sentence. Does that make sense? So, the judge would review it and then send it back to the prosecutor?
It may go back to that judge then, but at any rate, no matter who hears it, the judge does not generally dismiss the case as a remedy. The judge will examine the case to see if the plea was defective in some way, and if it is, the judge will usually vacate the plea and the case will be reset on the docket like the plea never happened. The prosecutor will then make a decision about how to handle the case. The fact that there may have been a problem with the plea does not mean the case itself is defective so it may still be viable.
8 years legal experience, primarily in criminal justice
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