How can the judge continue my plea arrangement or case when my attorney is not present. This seems to violate some kind of right to me? am i wrong here?
No, you are not wrong. However, the facts are more complicated than simply yes and no.
In TN, a first-time DUI Defendant faces a MISDEMEANOR
A felony, with 48 hours of imprisonment. Keep this in mind as we go on.
The Sixth Amendment of the US Constitution
states that someone accused of a crime has the right to counsel to defend him or her in criminal prosecutions. However, this clause applies to federal
prosecutions only, not state prosecutions.
Under Argersinger v. Hamlin, 407 U.S. 25 (1972)
, counsel must be appointed in any case resulting in a sentence of actual imprisonment in a state court.
Finally, in Section 9 of the TN Constitution, it states that "in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel."
In short, one does have the right to counsel in TN if facing imprisonment, which was the case here, arguably.
One may wish to appeal
the sentence or otherwise file for a new trial
, based on lack of counsel and that counsel was not waived. It can get murky in that you are not indigent, however, the Courts often tent to treat the right to counsel as sacrosanct so this is a good argument, nonetheless. Of course, an attorney is recommended.what can be done about my attorney missing my final court date and me getting a different outcome due to the neglect?
One has two options:
1) File a complaint against the attorney - here
. This is not a lawsuit, but, the attorney may be punished by admonishment, fines, and/or even suspension based on the perceived grievousness of the matter.
2) File a malpractice suit (best done only after the criminal matter is over).
The statute of limitations
for legal malpractice is one year from the time the cause of action accrues. Tenn.Code Ann. § 28-3-104(a)(2)
. Malpractice is defines when:
(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which he practices or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.Kilpatrick v. Bryant, 868 SW 2d 594 - Tenn: Supreme Court 1993
- - - Can i ask for a refund my payment to my lawyer. And to make things clear, the lawyer was paid in full.
Yes, indeed, or likely, at least the party which was not used. Also, damages may be sought via the malpractice claims, including but not limited to any additional fees paid to a second attorney for the appeal.
For now, it is imperative to find an attorney to appeal the sentencing since one has only a limited time. May I recommend the TN Bar referral programs - here
. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.
I hope this helps and clarifies. Good luck.IMPORTANT
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