Criminal Law Questions? Ask a Criminal Lawyer.
Hello, how are you tonight? So you are wondering what the best "route" for an incarcerated individual would be to file a post conviction relief motion?
What do you mean by route?
Well, he has the help of another inmate that has some legal degrees and they were discussing his case. Based on what my friend, G we will call him, told him the guy said there is no way he should have gotten 12 years (hes already served 10 of those 12 by the way). So, they requested his entire file from our courthouse. When the "sexual assault" occurred he was 16 and she was either 14 or 15 - not sure which but initally both were charged. The charges against her were dropped and he was charged, sentenced 2 years probation. While on probation, he did it again with a different girl - all were within a few yeas of each other but it was just dancing on that fine line of all the legality problems. So the second case he was sentenced to 12 years and 6 ES. He found in his file he never had a waiver hearing to be waived into adult court so I guess they want to file a 974.06 motion on those grounds ?? I don't have all the details yet. Hes supposed to be making me copies of his file but that hasnt happened yet
He would like an attorney to review his case and give him some advice - was looking for some kind of pro bono attorney, but i'm having a hard time finding anything like that in our area other than court appointed attorneys.
I understand, and that is a basis with which they could proceed on filing that post conviction motion. Once the motion is filed, the DA's office will then have a period of time to respond. Here is a link to the actual statute, which provides for post conviction relief grounds, and the procedure with which to file, which I am sure that they have, but it is still helpful information: http://www.lawserver.com/law/state/wisconsin/wi-laws/wisconsin_laws_974-06
If you are looking for an attorney to handle a post conviction motion on behalf of a defendant, you are usually going to have to pay some pretty good money to do that unless they are a member of an advocacy group, volunteer lawyer program, or other legal aid agency that provides that type of help.
If he is seeking to file one, and he is getting out in two years, the earlier he files it the better, for reasons that are apparent. He would then get a hearing date to be able to present his case if the DA's motion to dismiss the motion that they file for the post conviction relief does not kick it out.
The post conviction process is pretty involved, and usually requires extensive research to find cases of similar nature where post conviction relief was obtained by the inmate, therefore, it is going to be hard to find an attorney to do it pro bono unless you can find one of the aforementioned agencies.
How would one go about becoming a member of a volunteer lawyer program or such advocacy group?
As a lawyer?
And what do you mean by "if the DA's motion to dismiss the motion that they file for the post conviction relief does not kick it out.
LOL, ok, i was thinking there was a group of lawyers that might do that and he could apply for their services or something like that.
The DA's office has a right and obligation to file a motion to dismiss their motion and rebut all of the grounds stated in their motion they draft.
Hence, they would say he did waive the adult court aspect.
Or in the alternative, it was harmless error, and his conviction was obtained legally.
That is what I meant, regarding the legal aid programs. He would have to apply to those programs, and state his case, and his financial eligibility, and they would determine whether to take his case.
Does that answer your questions?
Yes. Thank you.
Generally speaking however, these types of motions are filed by the incarcerated individual
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Have a great evening.
Good luck to your friend!