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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 89303
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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District Court Judge granted motion to release my property

Resolved Question:

District Court Judge granted motion to release my property to me. Then after sentencing my husband and granting restitution of which did not include the property released to me, the same judge issued a Writ of Execution of which the judge then included the property which this same judge had released to me. The judge did not go through my husbands appellate attorney at time of issuing the Writ of execution and then held hearing with only my husband present at which time the judge ordered my property to be used to pay part of his restitution. Is this legal or illegal. Could this be a Federal case considering it involves firearms.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

While the judge could release the property to you, if restitution was ordered and it could not be satisfied by other means the other party could ask for a writ to seize other property not included in the restitution order originally. So a court can change their ruling for good cause. Now, if this property was your property and not marital property or your husband's property, then this is grounds for you to argue an unlawful order in seizing your property to pay your husband's separate debt. It is not a federal issue only because it is a firearm though. You have to file an appeal of the writ of execution and argue that the seizure of the weapon was not proper as it did not belong to your husband and did not constitute marital property to avoid the court being able to seize it.




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Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 89303
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 9 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

Since my husband was being represented by the appellate att., was it illegal for the district court judge to bypass the attorney and go straight to my husband with the writ. And having a hearing without my husband having legal representation.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

No, if your husband was represented and the court knew he was represented then this would be a likely violation of his 6th Amendment right to representation. This is an issue that can be raised on appeal of his case as well.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 89303
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 9 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

Looking for Montana Law or rule which obligates the Prosecution to ongoing duty to disclose exculpatory discovery after conviction, discovery such as the in car camera video from the officers cars, who has possession of certain items of which was at the alleged crime scene, etc.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your follow up.

I am afraid there is no Montana or US law that mandates disclosure of any evidence after a conviction occurs. Once a conviction occurs a case is closed I am afraid. If you wanted video from the police car, it was up to his defense attorney to ask for that before trial as part of discovery. After trial and conviction there are no laws that mandate continued disclosure, if there were cases would potentially have to be followed up on forever and there is no manpower to do that.
Customer: replied 1 year ago.

Given the fact that the PCR has not been filed yet. The court did grant all discovery and DNA evidence to be preserved. Would this make a difference in the disclosure of new evidence of which the governing agencies have in their possession such as the in car camera video. One video, which I do have, the sheriff making a presumption of guilt before the investigation has ever begun.

Expert:  Law Educator, Esq. replied 1 year ago.
I am afraid that if he has been convicted, the preservation of evidence is whatever evidence was presented in the trial below, which is all that can be considered in an appeal. You can argue that the video evidence was newly discovered evidence not available at the time of the trial, but if your husband's attorney never asked for this video then you would need to argue ineffective assistance of counsel as well on appeal.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 89303
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 9 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

July 7, 2009 my husband was arrested, without Miranda rights, on July 8, 2009 J of P had an arrest warrant and he also made his initial appearance at same time. On July 14, J of P appointed counsel of which had already been appt. on July 8, at which time the J of P failed to have his counsel present for the initial appearance. Then, on July 15, 2009 another arrest warrant was issued by a judge in a different jurisdiction for the same offense. Why would there be 2 different warrants for the same charge and my husband had remained incarcerated since the 7th of July.


The J of P also denied him being bailed out, and placed an excessive bond of $500,000 this being his first offense.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your new question.

A common misconception amongst non-lawyers is that Miranda must be read at the time of every arrest. This is simply not true. Miranda only must be read BEFORE questioning a suspect or defendant about the criminal offense. If Miranda is not read, then any statements given and any evidence received from those statements must be thrown out and are not admissible in court against the defendant. So if they did not take any statement from him or did not use any statements he made against him in court, the failure to read him his Miranda rights is considered "harmless error" by the courts.

There should not be two arrests for the same exact offense, as this would be double jeopardy to be tried for the same exact offense twice. Without reading the reports, the warrants and case file though, there is no way I can tell you why the second judge issued the second arrest warrant on the case while he was in jail since July 7.



Thank you so much for using JustAnswer.com. I truly aim to please you as a customer, but please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. PLEASE use REPLY to EXPERT if you would like more information or if you feel something was not included in your answer.

Kindly remember the ONLY WAY experts receive any credit at all for spending time with customers is if you click on OK, GOOD or EXCELLENT SERVICE even though you have made a deposit or are a subscription customer. YOU MUST COMPLETE THE RATING FOR THE EXPERT TO XXXXX CREDIT, if not the site keeps your money on deposit.

Also remember, sometimes the law does not support what we want it to support, but that is not the fault of the person answering the question, so please be courteous.

PLEASE NOTE WELL WE ARE DEALING WITH LAWS OF 50 STATES PLUS FEDERAL LAWS, AS WELL AS DEALING WITH OTHER CUSTOMERS, SO PLEASE BE PATIENT AND BE ASSURED YOU ARE NOT BEING IGNORED.

There can also be a delay of an hour or more in between my answers because I may be taking a break.

You can always request me through my profile at http://www.justanswer.com/law/expert-paulmjd/ or beginning your question with “For PaulMJD…”

Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 89303
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 9 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

He was questioned and property seized by the same deputy who did not mirandize him. All of which was brought into the trial. The arrest warrants are the same wording with the same bail amount. Also not understanding why a judge in an entirely different jurisdiction issued the second warrant, whereas the district judge who had the jurisdiction signed the search and seizure which occurred after July 7 and presided over the arraignment and so forth.


 


I do Thank You for your time.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you very much, you are a pleasure to work with.

If he was questioned without being read his rights, his statement should have not been admissible and any evidence that resulted from that statement should have been thrown out. This is grounds for an appeal and to vacate the conviction.

I wish I knew why the judge issued the second warrant, but again, I am afraid that requires an actual review of the record which I cannot do, so anything I would tell you about that would be a guess and that would not be fair to you.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 89303
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 9 other Criminal Law Specialists are ready to help you

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