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Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 33150
Experience:  Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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Did my son give up s right to a hearing in front of the

Customer Question

Did my son give up his right to a hearing in front of the judge when he made a plea agreement of "guilty to stalking" in order to drop other domestic abuse charges?He made the agreement in order to get out of jail and to change felony charges to a misdemeanor but no one has heard his side of it yet. Not the judge and not his public defender. No one has even given him a chance. To top it all off there was a 'no contact order' and she was right back with him as soon as he got out so I took a picture of her belongings in his home and paraphernalia which then brought another issue into the mix.I have tape recordings of his girlfriend threatening him and 24 public records of her being a public nuisance, threatening people, OWI's, and even a copy of a police report against her for assault, etc. My son needs someone to hear his side of this.The public defender said he knew what he was signing so he absolutely won't help and the arraignment is tomorrow morning.I'd like my son to have a rule 25 evaluation and treatment if possible (which is why I brought in the drug evidence * which was never a part of the issue before) but now they want $130 for a drug patch and $10 drug tests 3 times week and he doesn't have a steady job so that's really tough (and I won't pay for it). The judge doesn't even know that he doesn't have a steady job.The judge needs to know that the girlfriend set my son up and we would really like the "stalking" charge to be rescinded if at all possible.THE ARRAIGNMENT IS IN THE MORNING. ARE THERE PAPERS WE SHOULD FILE SINCE THE PUBLIC DEFENDER WON'T AGREE TO HELP?
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Legal-Kal replied 11 months ago.

Good afternoon:

My name is ***** ***** I would be happy to provide general information regarding your question.

When you say your son gave up his right to a "hearing," in exchange for a plea of guilty, would by assumption that this "hearing" is/was unrelated to the offense for which he will be arraigned for tomorrow?

Customer: replied 11 months ago.
I don't know and either does my son. The court calendar Only says arraignment and it's in front of a different judge we don't know what it's for and my son's attorney doesn't tell him anything If it is about this case there were some separate domestic abuse charges which were dismissed and there was this one charge of stocking in the plea agreement which he pled guilty to and he should not have because no one has heard his side of the story yet
Customer: replied 11 months ago.
I pulled 24 case records of hers off the internet Showing That She is the abusive one With Disorderly conduct Fighting or violent Behavior Abusive Words threatening gestures Loud or rashes noise Resisting order or process of Magistrate Court Contempt of courtEtc and I also have Phone Recording Which proved she was threatening my son and not the other way around
Customer: replied 11 months ago.
Why wouldn't the public defender introduce this evidence and why wouldn't he hear it and why wouldn't the judge hear it It seems to me that is inadequate legal representation
Customer: replied 11 months ago.
Is it another $59 to have you call me or is it included in the initial charge?
Expert:  Legal-Kal replied 11 months ago.

Ok, thank you for that information.

Based on the fact that you mention he "pled" guilty to an offense without a hearing, and based on the limited information available, it appears that this new arraignment is for a separate, unrelated offense.

If this is indeed the case, then the prior offense (which he pled guilty too) cannot be attacked (absent a few circumstances). This is because when someone pleads guilty to an offense, they are agreeing to give up any right to trial on that offense (which is the only way a Court can hear all sides of the case). In fact, the Courts, prior to accepting a guilty plea, always engage in discussion with a defendant to ensure that he/she understands what he/she are giving up in exchange for a guilty plea (these usually include the right to have a trial, the right to testify on your own behalf and the right to present evidence and witness testimony on your behalf).

On rare occasions, a defendant may be able to request that the plea be vacated if it is based coercion or fraud. However, this request must be made within a certain time frame after the plea of guilty (usually 30 days). Once this passes, or if no evidence of such fraud or coercion exists, the plea cannot be vacated.

On the other hand, if the "waiving" of this hearing is related to this new offense (for which he will be arraigned on), then I can only presume that the "hearing" you are referring to is the preliminary hearing. A preliminary hearing is a hearing that occurs before the arraignment. At a preliminary hearing, the only issue the judge has to determine is whether or not there is probable cause that a crime has been committed and the defendant was the one who committed the crime.

The standard of proof is probable cause (and is different from what has to be presented at trial, which is proof beyond a reasonable doubt). Evidence of the "victims" past transgressions are/may be relevant only at trial (which occurs after a preliminary hearing and after an arraignment) and the victims transgressions are not relevant during a preliminary hearing.

I will pause here and allow you to ask any questions you may have.

Regarding phone calls, they would be an additional fee (as a part of the "premium service" offered).

Customer: replied 11 months ago.
I apologize for making this so difficult to understand if I wasn't so tired it would be easier. Court papers online say that everything is dismissed except for stalking which he pled guilty to but no one has ever heard his side of it. When he tried to explain this to the judge she said this wasn't the time for that and Afterwards he agreed with his public defender to plead guilty to get out of jail sooner. At the next hearing I introduced my concern to the court that the conditions of release were violated because the accuser kept calling my son and wouldn't leave him alone. I provided a picture of the accusers belongings in my son's temporary living quarters which Happened to be a junk trailer he was getting ready to sell And paraphernalia was in the picture. This concerned me and I wanted a Rule 25 chemical dependency evaluation done So I brought this issue up at hearing And new conditions were such that he had to have a drug patch on. At the time my son did not have a full-time job he was doing odd jobs here and there And when he couldn't pay For a drug test he skipped it and he also missed the next hearing So they brought him back in on a warrant. Since a PS I had not been done yet the court set a new hearing for when that is completed. That's tomorrow morning . New conditions were set But my son does not have enough money to comply With those conditions.
Expert:  Legal-Kal replied 11 months ago.

Thank you for the response.

I am not sure if I can help you at this juncture. What I will do, however, is opt-out of the question. This will open it up to other experts who may be able to provide the information you are looking for.

Please do not respond until you have been greeted by a new expert (as it will delay getting the information you are looking for). Thank you and I wish you the best of luck!

Customer: replied 11 months ago.
They are:. Pay $130 for the patch and drug testing 3xweek. He doesn't have the money for that without a full time job. He has been doing work for a handicapped lady in order to pay for a vehicle she sold him. Once it's paid for she will put it in his name. I don't want him to have false charges of stalking on his record. I just wanted him to get some help for drug addiction and since I can't pay for
Expert:  Dwayne B. replied 11 months ago.

A different expert here. I see the other expert opted out.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

The exchanges between you and the other expert are a little hard to follow.

Would you please set out the specific questions with which you still need assistance?

Customer: replied 11 months ago.
I am having a really hard time doing this on my smartphone can you use my email address so we can correspond it is *********......This is a false domestic abuse charge. Several charges were dropped and he agreed to accept a stalking charge in a plea bargain to get out of jail. My son should never have pled guilty. It was strictly a "DENCO" order until I stuck my nose in it. No contact was .one of the conditions of release and I knew .these were false charges so I submitted .proof to the court that the "no contact" .order had been violated and I asked for a rule .25/ chemical dependency eval be done. I .believe sentencing was not concluded in the domestic issue because a pre-sentence evaluation was never done
Expert:  Dwayne B. replied 11 months ago.

There is no way for me to contact you via email. However, we can continue when you get access to a computer if that would be better.

Customer: replied 11 months ago.
I am on my computer now and normally your responses would come right to my email address instead of this Smartphone But I chose to put in my smart phone number because the advertisement said it would be faster Actually it is not Because I can't simply type in everything It just gives me a small amount of space And I can't complete my paragraphs.
Expert:  Dwayne B. replied 11 months ago.

On your screen there should be a button or Customer Service, do you see it?

Customer: replied 11 months ago.
I'm on screen And it says I have a response with your name on it but I don't see any place 2 Touch for customer service I will keep looking here ...p.s. I am not computer illiterate, lol
Customer: replied 11 months ago.
Thank you, ***** ***** I am
Expert:  Dwayne B. replied 11 months ago.

I understand. I will send this to the moderator and ask them to help you with changing the email.

If you're going to be on the chat then you should be able to see everything if you just leave it on this window.

Customer: replied 11 months ago.
ok
Expert:  Dwayne B. replied 11 months ago.

Okay, now as to your questions, what exactly can I answer for you?

Customer: replied 11 months ago.
Can we get that guilty plea to stalking rescinded?
There is an arraingment tomorrow morning.
Expert:  Dwayne B. replied 11 months ago.

I ma having the same problem the other expert had in that the facts and dates don't make sense. If he pled guilty already, then there wouldn't be an arraignment on this charge scheduled for tomorrow. An arraignment only happens when a case is first filed, not after a guilty plea has been entered and he has been sentenced. In addition, you can only change a plea while the court still has jurisdiction, which would be for thirty days after the judgment was signed.

So either he has a new charge or he never entered a guilty plea on the old one. Which of these is it?

Customer: replied 11 months ago.
If he has to stay in jail due to my bringing up the drug issue can we at least get these weekly charges down? The $130 for a drug patch and testing 3xWeekly which equal $30/week. I am on disability and can't afford to pay this for him nor would I.
Expert:  Dwayne B. replied 11 months ago.

That has to be something his lawyer covers with the judge. Typically those charges are "set in stone" because they are what the county actually pays for the patches and testing but the lawyer could certainly raise the issue with the judge and there might be some kind of assistance available.

Customer: replied 11 months ago.
He doesn't have a job but he works for a disabled lady in order to pay off his vehicle which he bought from her. It will stay in her name until he works off his debt to her.
Customer: replied 11 months ago.
Thank you for letting me know that. We are so frustrated because the judge doesn't know of his financial position at all. No one has even mentioned the fact that he doesn't have a job and I feel his public defender should have brought that up.
Customer: replied 11 months ago.
His public defender keeps shusshing him whenever he wants to tell the judge that as well as his side of the story.
Expert:  Dwayne B. replied 11 months ago.

The financial position usually doesn't make much difference and so it usually isn't addressed. However, a judge doesn't really want to set someone up to fail so if your son can't find a job, can't make the payments, etc. then the judge would be inclined to do something else, or at least that's been my experience.

Expert:  Dwayne B. replied 11 months ago.

As to the PD shushing him, that's not unusual since often the client says something which makes things worse and isn't relevant to the proceeding, will "open the door" to something that isn't otherwise admissible, etc.

Expert:  Dwayne B. replied 11 months ago.

I can't say that's what's happening in this case but I've seen it happen many, many times.

Customer: replied 11 months ago.
Exactly, we need some new options. When I asked for a rule 25 chem dep eval be done - nothing happened. The PSI wasn't even done so the judge sent him back to jail until it was. My son even agreed to have this evaluation done and even do treatment if these conditions would be dropped (to me anyway).
Expert:  Dwayne B. replied 11 months ago.

The best thing to do is talk to the PD and explain the issues. However, be very careful about not following his advice because bad things can happen.

Customer: replied 11 months ago.
Well DeWayne, I expected that was why he was shushing him but I've been in that court room every single time and his financial condition has never been brought up and neither has his willingness to be evaluated. I called the public defender today and told him I'd like at least 20 minutes with him and I had a signed paper from my son giving permission for him to speak to me but he said my son knew what he was signing when he signed it and wouldn't speak to me any further. I also left a message for the lady who did the PSI with the same information and she never called me back. Now, of course, everyone's gone home so we won't get any help at all. Can I ask to speak in court in regards ***** ***** concerns which are identified here to you?
Expert:  Dwayne B. replied 11 months ago.

You can ask but you are really taking a risk. How old is your son?

Customer: replied 11 months ago.
He is 40 so I suppose the judge won't find "mama's trying to intervene" very helpful.
Customer: replied 11 months ago.
I just wanted him to get some evaluation and/or treatment and for this false domestic claim to be thrown out but my son was too interested in getting out of jail. Now the jailers said he'd have to stay in there until August 18th and if the judge gives him more time and no treatment tomorrow.........then I haven't provided any help at all in getting my son some help for his drug use.
Expert:  Dwayne B. replied 11 months ago.

You are in one of those really tough binds where if you speak up he judge will think you're making excuses for him and that's why he got into trouble but, of course, you want him to be taken care of. It might be better to try and talk to the probation officer or whoever is in charge of the patch issue.

Everyone who does criminal law has seen people who stay in trouble because their parents never thought they did anything wrong and so when you have a parent that really is just trying to help then they get "tarred with the same brush".

Customer: replied 11 months ago.
I am in a bind. This is a tough judge too. I have to try to maintain my composure and so does my son but when you're not allowed to say anything in your own defense it gets pretty tough. Do you have any advice on what particular words to use? Or perhaps how I could request the judge give me a moment to hear me explain his financial situation?
Customer: replied 11 months ago.
My son wanted to get the money to purchase the drug patch before tomorrow morning's arraignment but I refused to give him the money. I just don't have money to burn and either do any of his friends.
Expert:  Dwayne B. replied 11 months ago.

No, no good advice. If the attorney won't call you as a witness then you really aren't supposed to speak since you're not a party. You may try writing a letter to the judge and asking the attorney to provide it to the judge as an explanation as to the financial situation. That would keep from putting the judge on the spot but would give him a chance to look at it if he is so inclined. If he isn't so inclined then he's just going to get mad anyway.

Customer: replied 11 months ago.
Ok, then should I make it short and sweet and let the public defender read it first? Would that help. Then maybe the PD would save face a little for not giving the information to the court earlier?
Expert:  Dwayne B. replied 11 months ago.

Yes, stick to the facts and don't argue about whether he did it or not, explain, etc. Just address the financial issues and nothing else.

I think that is the way that gives you the potential for the best result with the least down side.

Customer: replied 11 months ago.
Or should I give this to the prosecuting attorney?
Expert:  Dwayne B. replied 11 months ago.

No, give it to the PD.

Customer: replied 11 months ago.
OK. And then are your recommending that I not address the issue of false guilty plea and my taped evidence?
Expert:  Dwayne B. replied 11 months ago.

No, not at this point. The decision to plead guilty was your son's and any attempt by you to raise it now isn't going to help. If the judge did allow him to withdraw the plea, and I don't see how he could, but if he did then e would force him to go to trial and then if he is found guilty he chances he would max him out on the sentence are very, very good.

Customer: replied 11 months ago.
I wish he could go to trial. The girl has done this to other men before. What would be the maximum sentence?
Expert:  Dwayne B. replied 11 months ago.

What is the exact charge?

And her doing it to other men before isn't admissible.

Customer: replied 11 months ago.
I wanted him to go to trial in the first place and we talked about that long and hard and even taped the telephone threats in preparation for the hearing but then he got antsy and wanted to do anything just to get out of jail.
Expert:  Dwayne B. replied 11 months ago.

The tapes probably aren't admissible either since Florida is an "all party consent" state and so it is illegal to tape a conversation unless all parties consent to the recording. This also makes it inadmissible.

Customer: replied 11 months ago.
The 6 charges were:
1. Threats of violence, reckless disregard risk, severity level IV (not applicable-GOC)
DISMISSED
2. Stalking-Intent to Injure (Not applicable GOC) CONVICTED
3. 5th Degree Assault - Fear (not applicable GOC) DISMISSED
4. 5th degree assault-harm (not applicable GOC) DISMISSED
5. Domestic Assault-Fear (not applicable GOC) DISMISSED
6. Domestic Assault-harm (not applicable GOC) DISMISSED
Customer: replied 11 months ago.
We are in Minnesota
Expert:  Dwayne B. replied 11 months ago.

First off, if the plea bargain is withdrawn then he would be open to all the charges being pursued again.

The 5th degree assault can result in up to 90 days in jail,plus a fine of $1000. The stalking charge can be up to a year, the domestic assault is usually 90 days.

The real issue is that the judge can "stack" the punishments and make him finish one sentence before he starts another, assuming that the charges didn't all take place out of the same incident at the same time.

Customer: replied 11 months ago.
It was the same incident. He put her out of the vehicle because she was intoxicated and argumentative so she called the police needing a ride home and claimed domestic abuse. She has a lot of past history on record of this type of thing.
Expert:  Dwayne B. replied 11 months ago.

If it was all the same night then the judge shouldn't be able to stack them so it would mean up to a year in jail.

Customer: replied 11 months ago.
Can't her history be used against her in a trial and the tape recorded threats to get him in big trouble? She has even said "You're a dead man" on the phone and that is taped.
Customer: replied 11 months ago.
If none of that is admissable I guess he is stuck.
Expert:  Dwayne B. replied 11 months ago.

No, since it is illegal to record the conversation 1) it isn't admissible and 2) it could end up in charges for whoever recorded it.

Customer: replied 11 months ago.
But it was on his cell phone and it's an "ap"
Expert:  Dwayne B. replied 11 months ago.

That doesn't have any impact at all.

Customer: replied 11 months ago.
Dang. Well I guess I'll just have to go the hand written note then. If you have no more advice for me I will let you go, thank you, ***** ***** am grateful for your explanations.
Expert:  Dwayne B. replied 11 months ago.

I wish I had better news but I believe in being straightforward because all it does is hurt if we beat around the bush.

Expert:  Dwayne B. replied 11 months ago.

I'm just about to sign off for a while.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work.

Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered. In addition, once you issue your Positive Rating the question will lock open and no longer time out so you can come back to it anytime in the future if you think of any follow ups.

Customer: replied 11 months ago.
You're right, thank you, ***** *****'t want to waste my time either if it's a dead end. Thank you!
Expert:  Dwayne B. replied 11 months ago.

You're very welcome. Best of luck to you and your son.

Expert:  Dwayne B. replied 11 months ago.

Best wishes to you and please don't forget to leave a Positive Rating so I receive credit for my work.