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Experience:  29 Years In General Practice,
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My sons case was closed for a 2015 crime he is already

Customer Question

My sons case was closed for a 2015 crime he is already incarcerated and an Attorney that was dismissed reopened his case. I understood that case was done but I receive a call today that son will be arrainged next Tuesday how can this be when son case was closed and he is already doing time in prison
JA: Because laws vary from state to state, could you tell me what state is this in?
Customer: Ohio\
JA: Have you talked to a lawyer yet?
Customer: I spoke to Attorney briefly after multiple calls then reaching out to another attorney who work in the same office. Attorney called me and asked for my address to send fee back this was July 16,2016 he never worked case
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: This is the state of OHIO
JA: Anything else you think the lawyer should know?
Customer: I want to know how and why and Attorney that was dismissed can go reopen a case that was closed.
Submitted: 10 months ago.
Category: Legal
Expert:  Attorney2 replied 10 months ago.

Welcome and thank you for your question. I will be the Attorney that will be assisting you.

Expert:  Attorney2 replied 10 months ago.

I may be a little confused. I believe you are telling me that your son was convicted if a crime and served the time for that particular crime? What was he convicted of?

"The Prohibition Against Double Jeopardy

The Double Jeopardy Clause applies in several scenarios, some more obvious than others.

The Fifth Amendment to the U.S. Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” It’s a relatively straightforward concept: The government can’t prosecute someone more than once for the same crime. In practice, though, the double jeopardy prohibition can get knotty.

The Essence of Double Jeopardy

“Jeopardy” in the legal sense describes the risk brought by criminal prosecution. With notions of fairness and finality in mind, the Framers of the Constitution included the Double Jeopardy Clause to prevent the government from trying or punishing a defendant more than once.

Specifically, double jeopardy protects against:

  • a prosecution for the same offense after an acquittal
  • a prosecution for the same offense after a conviction, and
  • more than one punishment for the same offense.

A defendant facing any of these scenarios can hold up the Double Jeopardy Clause as a shield.

There are clear instances when this shield is available, such as when a jury has acquitted a defendant and the state brings the same charges a second time. (If the prosecution discovered new evidence of the defendant’s guilt after the initial trial, too bad.) Double jeopardy also bars punishment in certain prototypical scenarios—for example, when a judge tries to resentence someone who has already served the punishment for the crime in question.

But there’s often not an obvious answer as to whether the Double Jeopardy Clause applies. Certain principles guide courts in making this determination.

Criminal cases only

Double jeopardy applies to criminal cases only, not civil or administrative proceedings. That means, for example, that a defendant convicted of a crime isn’t immune from a civil lawsuit for damages (money) from the victim of the crime. It also means that the DMV can suspend and revoke driver licenses for the same actions that lead to criminal convictions. (An example is drunk driving, which a court and the DMV can punish separately.)

Attachment of jeopardy

The government must place a defendant “in jeopardy” for the Fifth Amendment clause to apply. The simple filing of criminal charges doesn’t cause jeopardy to “attach”—the proceedings must get to a further stage.

Generally, jeopardy attaches when the court swears in the jury. (See When does jeopardy attach in a jury trial?) In a trial before a judge, jeopardy attaches after the first witness takes the oath and begins to testify.

Jeopardy terminated

The attachment of jeopardy doesn’t necessarily mean the government can’t reprosecute the defendant—jeopardy must also terminate. This means that the case must in some sense conclude. The classic example is a jury reaching a verdict of either guilty or not guilty. Jeopardy also terminates when a judge finds the evidence insufficient to convict the defendant and enters a judgment of acquittal rather than letting the case go to the jury. (See If the prosecution dismisses charges after trial has started, can it later refile them?)

But just because a case ends doesn’t mean that retrial is barred. A hung jury typically allows a retrial. Similarly, if the defense consents to a mistrial, perhaps because of juror misconduct, the prosecution can usually reprosecute the defendant. On the other hand, if a judge declares a mistrial over the defense’s objection, the prosecution must show a critical need to retry the defendant. But that isn’t as tough as it sounds. For example, retrial is okay when, despite the defense’s protest, a judge declares a mistrial because a juror stopped coming to court. (United States v. Wells, 790 F.2d 73, 74 (10th Cir. 1986).)

Same offense

Double jeopardy prohibits different prosecutions for the same offense, but it doesn’t protect a defendant from multiple prosecutions for multiple offenses. Suppose, for example, that Bodie wins his trial for possession with intent to sell more than 50 grams of cocaine base. If the facts justify it, the state can try Bodie again for the “lesser included” charge of possession with intent to sell five grams or more of cocaine base. (U.S. v. Ginyard, 511 F.3d 203 (D.C. Cir. 2008).)

Same sovereign

The double jeopardy guarantee protects only against double prosecution or double punishment by the same “sovereign,” or government. Even if the exact same conduct is at issue, a state prosecuting someone doesn’t prevent the federal government from doing the same, and vice versa.

The Prohibition Against Double Jeopardy

The Double Jeopardy Clause applies in several scenarios, some more obvious than others.

The Fifth Amendment to the U.S. Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” It’s a relatively straightforward concept: The government can’t prosecute someone more than once for the same crime. In practice, though, the double jeopardy prohibition can get knotty.

The Essence of Double Jeopardy

“Jeopardy” in the legal sense describes the risk brought by criminal prosecution. With notions of fairness and finality in mind, the Framers of the Constitution included the Double Jeopardy Clause to prevent the government from trying or punishing a defendant more than once.

Specifically, double jeopardy protects against:

  • a prosecution for the same offense after an acquittal
  • a prosecution for the same offense after a conviction, and
  • more than one punishment for the same offense.

A defendant facing any of these scenarios can hold up the Double Jeopardy Clause as a shield.

There are clear instances when this shield is available, such as when a jury has acquitted a defendant and the state brings the same charges a second time. (If the prosecution discovered new evidence of the defendant’s guilt after the initial trial, too bad.) Double jeopardy also bars punishment in certain prototypical scenarios—for example, when a judge tries to resentence someone who has already served the punishment for the crime in question.

But there’s often not an obvious answer as to whether the Double Jeopardy Clause applies. Certain principles guide courts in making this determination.

Criminal cases only

Double jeopardy applies to criminal cases only, not civil or administrative proceedings. That means, for example, that a defendant convicted of a crime isn’t immune from a civil lawsuit for damages (money) from the victim of the crime. It also means that the DMV can suspend and revoke driver licenses for the same actions that lead to criminal convictions. (An example is drunk driving, which a court and the DMV can punish separately.)

Attachment of jeopardy

The government must place a defendant “in jeopardy” for the Fifth Amendment clause to apply. The simple filing of criminal charges doesn’t cause jeopardy to “attach”—the proceedings must get to a further stage.

Generally, jeopardy attaches when the court swears in the jury. (See When does jeopardy attach in a jury trial?) In a trial before a judge, jeopardy attaches after the first witness takes the oath and begins to testify.

Jeopardy terminated

The attachment of jeopardy doesn’t necessarily mean the government can’t reprosecute the defendant—jeopardy must also terminate. This means that the case must in some sense conclude. The classic example is a jury reaching a verdict of either guilty or not guilty. Jeopardy also terminates when a judge finds the evidence insufficient to convict the defendant and enters a judgment of acquittal rather than letting the case go to the jury. (See If the prosecution dismisses charges after trial has started, can it later refile them?)

But just because a case ends doesn’t mean that retrial is barred. A hung jury typically allows a retrial. Similarly, if the defense consents to a mistrial, perhaps because of juror misconduct, the prosecution can usually reprosecute the defendant. On the other hand, if a judge declares a mistrial over the defense’s objection, the prosecution must show a critical need to retry the defendant. But that isn’t as tough as it sounds. For example, retrial is okay when, despite the defense’s protest, a judge declares a mistrial because a juror stopped coming to court. (United States v. Wells, 790 F.2d 73, 74 (10th Cir. 1986).)

Same offense

Double jeopardy prohibits different prosecutions for the same offense, but it doesn’t protect a defendant from multiple prosecutions for multiple offenses. Suppose, for example, that Bodie wins his trial for possession with intent to sell more than 50 grams of cocaine base. If the facts justify it, the state can try Bodie again for the “lesser included” charge of possession with intent to sell five grams or more of cocaine base. (U.S. v. Ginyard, 511 F.3d 203 (D.C. Cir. 2008).)

Same sovereign

The double jeopardy guarantee protects only against double prosecution or double punishment by the same “sovereign,” or government. Even if the exact same conduct is at issue, a state prosecuting someone doesn’t prevent the federal government from doing the same, and vice versa." http://www.nolo.com/legal-encyclopedia/the-prohibition-against-double-jeopardy.html

Customer: replied 10 months ago.
Son is in prison now and there was case that was open while he was going to trial on another and was given time that he is serving now. The case that was pending was closed, A Attorney that was dismissed in 2015 reopened the case, how can e do that when he was dismissed and my son is incarcerated already doing time. When I asked him to return fee ever since 2015 I get a call that my son will be arrainged on August 9th, how can you reopen a closed case was my question
Expert:  Attorney2 replied 10 months ago.

You stated the case was dismissed can you tell me why it was dismissed.

Customer: replied 10 months ago.
The Attorney was dismissed in 2015, case was closed UNAVAILABILITY OF ACCUSED FOR TRIAL/SENTENCING,son was on trial for a federal case at the time so this state case was closed. An Attorney that thought he was my sons
Attorney reopened case and I received a call from his office that son will be arrainged on August 9th. Son is in federal prison now.
Expert:  Attorney2 replied 10 months ago.

They may have thrown out the case at that time. If the case was literally dismissed and closed this is unconstitutional.

Customer: replied 10 months ago.
The Attorney was well aware he was not representing my son and I want to know how can he reopen a closed case that a decision was already made
Customer: replied 10 months ago.
I am so devastated, thank you
Expert:  Attorney2 replied 10 months ago.

Is this State or Federal Court that he is retrying him for the exact same crime?

Expert:  Attorney2 replied 10 months ago.

You can be tried for the same crime twice when one is in state and one is in federal court. You can also be tried twice if there was no final disposition. I would like to see that the case he is being arraigned on was actually dismissed.

Expert:  Attorney2 replied 10 months ago.

I would be devastated as well. Where in Ohio is the arraignment happening? I can provide you with a link for a local attorney that provides FREE consultations that can check the status on the case for you. There are also civil rights attorneys that can help.

Customer: replied 10 months ago.
Youngstown Ohio
Expert:  Attorney2 replied 10 months ago.
This is a link for criminal defense attorneys in that area that provide FREE consultations in that area http://lawyers.findlaw.com/lawyer/firm/criminal-law/youngstown/ohio. Give me a moment for information on Pro Bono Attorneys
Expert:  Attorney2 replied 10 months ago.
https://www.justia.com/lawyers/ohio/youngstown/legal-aid-and-pro-bono-services
Expert:  Attorney2 replied 10 months ago.
Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you. If you would be kind enough to rate my service positively so I will receive credit for my work I would appreciate it.
Expert:  Attorney2 replied 10 months ago.

Do you have any additional questions for me?

Expert:  Attorney2 replied 10 months ago.

What were you able to find out?

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