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Zoey, JD
Zoey, JD, Attorney
Category: Legal
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Experience:  Active member of the NYS bar since 1989
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My husband is charged with 4th degree felony forgery but the

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My husband is charged with 4th degree felony forgery but the facts or the case do not equate the 4th dgree under ohio law. Yes he wrote on the check, he did not sign the check and the check was not cashed so there was no loss. The public defender wont even call us back. Should we motion to dismiss because the facts do not match the charge.
2913.31 Forgery - Forging identification cards or selling or distributing forged identification cards.
(A) No person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall do any of the following:
(1) Forge any writing of another without the other person's authority;
(2) Forge any writing so that it purports to be genuine when it actually is spurious, or to be the act of another who did not authorize that act, or to have been executed at a time or place or with terms different from what in fact was the case, or to be a copy of an original when no such original existed;
(3) Utter, or possess with purpose to utter, any writing that the person knows to have been forged.
(B) No person shall knowingly do either of the following:
(1) Forge an identification card;
(2) Sell or otherwise distribute a card that purports to be an identification card, knowing it to have been forged.
As used in this division, "identification card" means a card that includes personal information or characteristics of an individual, a purpose of which is to establish the identity of the bearer described on the card, whether the words "identity," "identification," "identification card," or other similar words appear on the card.
(C)
(1)
(a) Whoever violates division (A) of this section is guilty of forgery.
(b) Except as otherwise provided in this division or division (C)(1)(c) of this section, forgery is a felony of the fifth degree. If property or services are involved in the offense or the victim suffers a loss, forgery is one of the following:
(i) If the value of the property or services or the loss to the victim is seven thousand five hundred dollars or more and is less than one hundred fifty thousand dollars, a felony of the fourth degree;
(ii) If the value of the property or services or the loss to the victim is one hundred fifty thousand dollars or more, a felony of the third degree.
(c) If the victim of the offense is an elderly person or disabled adult, division (C)(1)(c) of this section applies to the forgery. Except as otherwise provided in division (C)(1)(c) of this section, forgery is a felony of the fifth degree. If property or services are involved in the offense or if the victim suffers a loss, forgery is one of the following:
(i) If the value of the property or services or the loss to the victim is one thousand dollars or more and is less than seven thousand five hundred dollars, a felony of the fourth degree;
(ii) If the value of the property or services or the loss to the victim is seven thousand five hundred dollars or more and is less than thirty-seven thousand five hundred dollars, a felony of the third degree;
(iii) If the value of the property or services or the loss to the victim is thirty-seven thousand five hundred dollars or more, a felony of the second degree.
(2) Whoever violates division (B) of this section is guilty of forging identification cards or selling or distributing forged identification cards. Except as otherwise provided in this division, forging identification cards or selling or distributing forged identification cards is a misdemeanor of the first degree. If the offender previously has been convicted of a violation of division (B) of this section, forging identification cards or selling or distributing forged identification cards is a misdemeanor of the first degree and, in addition, the court shall impose upon the offender a fine of not less than two hundred fifty dollars.
Submitted: 7 months ago.
Category: Legal
Expert:  Zoey, JD replied 7 months ago.

Hi,

I'm Zoey and I'll be assisting you. I'm reviewing your question now. Are you online at this time?

Expert:  Zoey, JD replied 7 months ago.

First of all, you cannot draft and file kind of motion, as only a lawyer or the defendant himself can advocate on behalf of the defendant. Secondly, as your husband is represented by counsel, a judge will not entertain a pro se motion. It will be given to the lawyer who can either adopt it as his own or reject it. The latter is much more common, in which case it will be dismissed out of hand.

If your husband's public defender works for a defender organization, he or she has a supervisor to whom he must be accountable. Your husband can call the defender organization, ask to speak to the supervisor and find out if the lawyer intends to move to dismiss the charges because the elements of the crime are not made out and if not, why not.

It's not clear that the check has to be cashed for this crime to be charged, but I don't have enough facts to know if it's dismissible on its face. Contacting the public defender's supervisor would be a good first pass. From there, if that doesn't get you results, your husband could discuss the matter with his lawyer on his court date.

Public defenders are in court all day every day and many of them are notorious for being bad about returning phone calls. They do most of their updating with their clients on the actual court date.

Ultimately, if your husband doesn't get a satisfactory explanation from his lawyer as to why his case is still going forward, he can ask the judge to relieve his present attorney who doesn't seem to be willing to communicate with hm or to work on his behalf and ask the judge to appoint him a new one.

Expert:  Zoey, JD replied 7 months ago.

Just checking in to see if you need more help or any clarification of my answer. If so, please reply here on this question thread.

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