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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 26840
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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the current term is for drug poss, no victim in this case.

Customer Question

the current term is for drug poss, no victim in this case. the prior term he served is the one with a victim.? may 9th was the release date for the case, then it was june 22 due to write up and points, now we were told due to penal code 3058.6 his new date is july 22? what can i do about this??
Submitted: 8 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 8 years ago.
Seems to be a common problem. Look at this news article.

My reading of Penal Code 3058 is the same as yours. That is, it specifically applies to those inmates who are presently serving a term for a violent felony, which, according to the information you've provided, this inmate is not.

My suggestion is that you contact the criminal lawyer who handled the case and tell him that you have reason to believe that his client is being improperly held beyond his release date. Ask him if he could prepare a writ of habeas corpus to bring him before a judge who could hear the facts of his unlawful detention and order his release (and whether he thinks that's advisable or likely to end up keeping him in longer).

Also, if held beyond his release date, he will have grounds once he's out for a civil suit. For every day he is being held beyond his lawful release date, he should be able to be to get damages. For that, you'd need a civil attorney but you can discuss this aspect with the criminal lawyer too, as if you're interested in recovering damages, it may make a difference in how he'd recommend proceeding on the present situation.

If I've helped, please click the green Accept button so I can get credit for my work.

This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.

Customer: replied 8 years ago.

no lawyer that handled the case. public defender. need a little more help than contacting someone that can help i need direction so i may handle this manner in a time and non cost to my self

Expert:  Zoey_ JD replied 8 years ago.
A public defender IS a lawyer and doesn't charge. A writ of habeas corpus has to be prepared to get him before a judge. The inmate can do it himself with some help from a jailhouse "lawyer," but if you want it to get to the right place at the right time aand contain all the right things necessary for the judge to consider the relief you want, an actual lawyer who is already familiar with the case and the court would be the best place for you to start.

If I've helped, please click the green Accept button so I can get credit for my work.

This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.
Zoey_ JD and other Criminal Law Specialists are ready to help you
Customer: replied 8 years ago.

it will take to long almost a year or month and he will be out by then...

Expert:  Zoey_ JD replied 8 years ago.
I'm not talking about appealing his case or challenging the sentence, which can go on for quite some time.

That's not what you're looking to do here. What you want is for a judge to know is that he's served all the time he's lawfully required to serve and that his constitutional rights are being violated because he is being detained unlawfully past his release date. I'm talking about taking emergency action to get someone to look into that matter by bringing him before someone who can order his release. A writ of habeas corpus can get him before a judge quickly. His lawyer should know how to do this. Ask him (or her).

No matter how all of that comes out, after it's all said and done, if he is held beyond his release date, like I said to you before, the state could be held liable to pay him some compensation for the unjust delay. This is a seperate matter from what you're asking about, but it's related. It may be a good idea to get the writ done, just so that down the road if he wants to sue for his unlawful detention, he has judicial evidence that the Department of Corrections violated his Constitutional rights.