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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11302
Experience:  Licensed Texas General Practice Attorney
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As a victim of an ongoing (over 4 years) stalking case, I am

Resolved Question:

As a victim of an ongoing (over 4 years) stalking case, I am wondering how I should pursue the fact that items in the sentencing order where overlooked and the sentence was signed off as completed, thus voiding the no contact order allowing the stalker to begin stalking again within days of his release from jail.
Submitted: 1 year ago.
Category: Legal
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

When was this sentencing order signed by the judge?

Customer:

the most recent order regarding modification of sentence was signed by the judge on May 16, 2012

ScottyMacEsq :

Have you talked with the police about the new stalking, or merely the prosecutors?

Customer:

I have made police reports, and currently have filed for a new protective order which the defendant is contesting, court date is set in August.

ScottyMacEsq :

Typically if a matter is "closed" and previous no contact orders voided, in error, that can be rectified if the court retains "plenary jurisdiction" over the case. But most of the time in criminal contexts, the courts lose that jurisdiction after 30 days following the signing of that order (when the case is actually "closed"). So in that regard, the prosecutors would be correct in that the prior case could not be reopened or rectified if more than 30 days have passed since that order was signed and the case closed. A court would not have any jurisdiction (authority) to do so. If it were to act, that would be an abuse of discretion, even if the underlying order had an error in it.

ScottyMacEsq :

Only if the court retained that jurisdiction (which it rarely does in these situations where something is final) could it make those changes.

ScottyMacEsq :

However, that is not a "license" for the individual to break the law again. While that individual could not be held in contempt for violation of a no-contact order that expired or was otherwise voided, there could still be the basis for seeking a new no-contact order based upon new harassment / stallking / etc...

ScottyMacEsq :

Just like the individual who could not be prosecuted for the same crime twice, he could be prosecuted for a similar crime, and it not be "double jeopardy".

ScottyMacEsq :

But again, once the court loses jurisdiction to hear modifications (30 days after signing the final order) then the court cannot legally hear such a modification. It would have no authority to do so, and any order entered would be void ab initio (from the beginning).

ScottyMacEsq :

That 30 day window is a short period of time, but it's the window that gives either party an opportunity to appeal. Once that's closed, then there's nothing that the court could do.

ScottyMacEsq :

I know this is probably not what you wanted to hear, but it is the law. I hope that clears things up anyway. And again, it's by no means permission or license for this individual to stalk. That's still against the law, and new crimes can absolutely be prosecuted as new crimes, just not under the old case. It would be an entirely new case. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

It seems to me that protective orders on convicted stalkers should not be a part of their sentencing, thus being voided upon their release from jail. How would I go about starting any legal change to protect victims?

ScottyMacEsq :

That would be a long and arduous process. It could certainly be effectuated through legislative change (which you could start with your representative). You could also seek out some victims advocacy groups to partner with you in that regard.

ScottyMacEsq :

Another option is to contact the state bar and see who is in charge of the "sentencing guidelines" committee.

ScottyMacEsq :

These committees publish guidelines and guidebooks for judges to use that are always being amended and modified, and this could certainly be that type of change..

Customer:

Ok. Also, I am wondering if I have any leverage due to the fact that the prosecutors office did not notify me of the agreed plea arrangement.

ScottyMacEsq :

If you mean leverage against the prosecutor(s), no. Prosecutors enjoy what's known as "absolute immunity" in these situations, such that even if there was a horrific consequence to their actions, they are not held liable for those actions. There is an immunity from civil liability that prosecutors and judges enjoy.

Customer:

Ok. Thanks for your help. Can I g

Customer:

t

Customer:

Woops! Can I get an emailed copy of our conversation?

ScottyMacEsq :

I cannot email you due to JustAnswer terms of services, but after you rate this answer, it will switch to a Q&A format (you may need to refresh the page after rating) at which point you'll be able to print this information, copy and paste into another program, etc...

Customer:

ok, thanks

ScottyMacEsq :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11302
Experience: Licensed Texas General Practice Attorney
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