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S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Criminal Law
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Experience:  Experienced and knowledgeable criminal defense attorney.
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MY SON RECENTLY RECEIVED 5 YRS IN PRISON FOR AGGRAVATED ASSAULT.

Resolved Question:

MY SON RECENTLY RECEIVED 5 YRS IN PRISON FOR AGGRAVATED ASSAULT. HIS LAWYER DID NOT FIGHT HIS CASE, NEVER RETURNED CALLS AND WASN'T VERY KNOWLEDGEABL AS TO WHAT WAS GOING ON WITH THE CASE, WHAT CAH I DO?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  S. Huband, Esq. replied 1 year ago.
Hello! If you find my response helpful, please rate it positively so that I can receive credit for my work. Doing so will NOT cost you any additional fee.

Q) What can I do?

First, I'm very sorry this has happened to you and your son. Five years is a LONG time. It's a real shame for the entire criminal justice system when a person's advocate, his attorney, fails in his duty to represent a client to the best of his ability.

Your son basically has three options, and he should do them in this order: 1) file a motion for a new trial, 2) appeal, and 3) file a habeas corpus action.

Motion
A motion for a new trial is filed with the trial court which convicted your son. It says that a legal error occurred during trial which should have been remedied. So, your son's motion would say that his attorney to adequately represent him during the case and that the failure caused your son to be convicted. If the court grants the motion, your son would get a new trial, and obviously with a new attorney!

Appeal
If the motion for a new trial is denied, your son would then begin the appeals process. There are numerous grounds on which to appeal a case, and there are just as many ways that a case could end up: it could be dismissed forever, sent back to the trial court for a new trial or for re-sentencing, etc. Appeals are time sensitive. Your son should get competent legal advice about how and when to file the appeal.

Please be aware that an appeal from a felony trial court to a court of appeals is not a "do over." There is no new trial, at least at first, no witnesses, no jury, etc. It is only a review of whether there were any legal errors at trial. Appeals are tough, time consuming, and an uphill battle.

No one has a constitutional right to appeal their conviction, although most states provide for a person to appeal anyway. Some states, like Virginia where I practice, provide an attorney for a person who appeals his or her case. Other states do not provide an attorney at first, unless the appellate court decides that the appeal has some merit. It all depends on state law.

Habeas corpus
Habeas is not an appeal, but rather a collateral attack on a person's conviction. It basically says that the person convicted, i.e. your son, was wrongfully convicted due to some constitutional failure or error. The most common claim on a habeas petition is ineffective assistance of counsel under the 6th amendment. The claim is that the attorney made significant errors before or during trial that essentially caused the defendant to be convicted. A habeas petition is only filed AFTER all appeals are exhausted.

What to do?
You or your son should get a competent criminal defense attorney to file a motion for a new trial and then begin the appeals process after that motion is heard, assuming the motion is denied. After the appeals process is finished, a habeas petition should be filed. This will all take a significant amount of time; the wheels of justice turn very slowly.

I hope I've been helpful to you today. If so, please take a moment to rate my answer positively so that I can receive credit for my work. Doing so will NOT cost you any additional fee.

Thank you for the opportunity to assist you,
Shuband
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 1196
Experience: Experienced and knowledgeable criminal defense attorney.
S. Huband, Esq. and 4 other Criminal Law Specialists are ready to help you
Expert:  S. Huband, Esq. replied 1 year ago.
Hello,

I was notified that you rated the answer I gave positively, and I am very pleased and gratified that I was able to help you. I sincerely hope the matter(s) we discussed turn out well for you.

Please ask for me in the future if you have additional questions or concerns. Thank you very much for the opportunity to assist you.

Take care,
Shuband

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