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 Dwayne B. Your Own Question

Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 27300
Experience:  Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
11068102
Type Your Criminal Law Question Here...
Dwayne B. is online now
A new question is answered every 9 seconds

An application for post conviction relief has been filed by

Resolved Question:

An application for post conviction relief has been filed by defendant. He is waiting now for an objection by from prosecution. When the 30 days are up after filling that application and there is no response from the prosecution can the defendant file some kind of motion to dismiss since there are no arguments against his arguments and request for case to be dismissed or new trial due to ineffective counsel?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Dwayne B. replied 1 year ago.
Can you provide a few facts about the underlying case?

Also, did you file an appeal or just the Application for Post Conviction Relief? What was the Application based on? What grounds?

How long ago was the judgment entered?

What was the charge the defendant was convicted of?

Was it a trial by judge or jury?

What was the sentence?

I am just about to go offline for the night but we can pick up and continue tomorrow morning.
Customer: replied 1 year ago.

Also, did you file an appeal or just the Application for Post Conviction Relief? What was the Application based on? What grounds?


 


The defendant filed direct appeal. The appeal was affirmed. The Application is based on ineffective counsel. Counsel did not provide a drug expert witness in a negligent homicide case where thc was found in defendants system. New evidence has also been found showing that prosecution's drug expert lied under oath by saying that one ng/ml causes a person's driving to be impaired. all of this is under ineffective counsel. Defendant has found expert who will testify that prosecution expert did not know what he was talking about or just straight out lied.the judge allowed marijuana evidence into trial based on prosecution proffered testimony. If defense counsel had expert judge would not have allowed that evidence into trial. That evidence was clearly the main cause of conviction. Judge had said in pre trial hearing that if there was not enough thc to cause driver to be impaired he would not allow mj evidence into trial. The prosecution expert provided what he wanted to hear.


 


How long ago was the judgment entered?


 


Judgement for trial was Nov 2011. Appeal court affirmed judgment and sentence May 2013.


 


What was the charge the defendant was convicted of? What was sentence?


Negligent homicide. A misdemeanor in this state. He received maximum 1 year sentence, $1000 fine and court cost. He has been serving his time for 2 months now in county jail.


 


Was it a trial by judge or jury?


Trial by jury.


 


 


 


 

Expert:  Dwayne B. replied 1 year ago.
Ok. I understand your facts and I think we've discussed some aspects of the case before.

There is no motion to dismiss or anything that would be effective, you just need to set a date for a hearing on the motion. The State really can't default on a motion like this however, if they start to put on any witnesses or present a defense you could argue that by failing to file a response they have waived the right to do anything other than cross examine your witnesses since it would have denied you due process as there was no notice they intended to defend. You would want to do some legal research and have some cases ready on this point.

The burden would still be on the defendant to prove they are entitled to the relief requested. If the application didn't contain an affidavit from the "new expert" then the expert would need to be at the hearing to testify live about the problems with the state's expert.
Customer: replied 1 year ago.

You said. "There is no motion to dismiss or anything that would be effective, you just need to set a date for a hearing on the motion.."


Are you saying the Application for Post Conviction Relief is a Motion and who sets the date for the hearing? In other words does the defendant need to now file a separate motion for a hearing on the APCR?


 


You also said "..The State really can't default on a motion like this.." Are you saying the state has to file a written objection and is the time limit 30 days from the time the APCR was filed?


 


 

Expert:  Dwayne B. replied 1 year ago.
You would need to request a hearing on the APCR. That can be done in some courts just by calling a requesting a hearing date and then, after you receive one, sending notice to the other side.

No, the State doesn't have to file a written objection.
Customer: replied 1 year ago.


You said in previous post: " The State really can't default on a motion like this however, if they start to put on any witnesses or present a defense you could argue that by failing to file a response they have waived the right to do anything other than cross examine your witnesses since it would have denied you due process as there was no notice they intended to defend. You would want to do some legal research and have some cases ready on this point.." What do you mean by "the state cannot default on a motion like this.." In reponse to this particular question you said the state does not have to file a written objection. So what is considered a "default"?


You said above : "..by failing to file a response they have waived the right to do anything other than cross examine your witnesses since it would have denied you due process as there was no notice they intended to defend." "Then you say the state does not have to file a written objection." How do they file a response without it being written?

Expert:  Dwayne B. replied 1 year ago.
In legal terms a default is when one side wins because the other fails to file an answer or a response. It doesn't work that way in most instances in criminal cases. While the State normally would file a response, there is nothing that says they have to do so.

The argument I gave you is an argument to make, I don't know that it will be successful. I'm not saying that the law absolutely says "..by failing to file a response they have waived the right to do anything other than cross examine your witnesses" what I am saying is that is the argument you would make to the court to try and keep them from calling witnesses of their own.

They would have had to file a written response if they responded at all.

What most people appearing pro se don't realize is that many times you make arguments even if it is very likely you will lose the argument because it then gives you grounds to argue on an appeal.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 27300
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Dwayne B. and 2 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.


The following are statement from the oklahoma law on post conviction relief. I just need some clarification on some of the language.


 


This is from title 22:1083 "Response by the State--Disposition of application."


(a) Within thirty (30) days after the docketing of the application, or within any further time the court may fix, the state shall respond by answer or by motion which may be supported by affidavits.. "


it says "..state shall respond by answer of by motion.." what would be an example of "..respond by answer.." Does this mean the prosecution talks to the judge or defendant by phone and explains what they plan to do?


 


 


 

Expert:  Dwayne B. replied 1 year ago.
No, they would file a written response. However, even though it says "shall" they sometimes don't file the response. That's when you make the argument that they can't offer their own evidence, the statute mandates a response so you can prepare for it and by them failing to do so then they shouldn't be able to have the surprise work to their advantage.
Customer: replied 1 year ago.

The defendant in his APCR requested funds to pay for his expert and gave the amount needed ,$3000 , if a hearing is needed. Will he need to file a separate motion for funds for that expert or is the way he did it sufficient?

Expert:  Dwayne B. replied 1 year ago.
Yes, he would need to file a separate motion for the funds.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 27300
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Dwayne B. and 2 other Criminal Law Specialists are ready to help you

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.
 
 
 

Related Criminal Law Questions

Chat Now With A Criminal Lawyer
Dwayne B.
Dwayne B.
Criminal Lawyer
27300 Satisfied Customers
Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.