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Stevexo, Criminal Attorney
Category: Criminal Law
Satisfied Customers: 1000
Experience:  Thirty years Criminal Defense
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I feel like my court appointed attorney did not represent me

Customer Question

I feel like my court appointed attorney did not represent me to the best of his ability. Several points that could have been to my benefit were omitted from his arguments both in the original trial and in the appeals. I feel like had he worked with me more closely, the outcome of my trial would have been different. Is there anything I can do?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Dave Kennett replied 5 years ago.
Dear JACUSTOMER - If all appeals have been exhausted then I know of no other action you can take. You would not be eligible for another court appointed attorney so unless you have the means to hire a private lawyer to look into all of this I see no way to get the conviction overturned. It is very rare that any attorney will call the defendant to the witness stand. You could have insisted that you be able to testify against his advice but I will tell you that in 30 years of experience I have never called a defendant to testify with the exception of an alibi defense. You already pled not guilty and whatever you said would be just more denial of the fact and would allow the prosecutor to cross examine you and really hurt the case. Obviously I don't have all the details and it is a bit late to do anything about what happened but unless you can get a private attorney to look into your case I see nothing that can be done.
Customer: replied 5 years ago.
Relist: Answer quality.
Expert:  Stevexo replied 5 years ago.
Steven T Greene Esq. Qualified as an expert in Criminal Law,30 years of Criminal Defense trial work. Yes, there is only one thing when my clients get to this point that can work in some situations.You appear to have ex guested the appellate process, thus there is only one avenue of attack left for you. In Florida where I practice, it is called a 3.850 as that is the rule number, but what it really is, is a motion for post conviction relief. This is not an appeal which goes to a higher court, this is a motion for post conviction relief which is filed in the trial court and usually argued on the grounds of incompetency of counsel under the 6th Adm to the US Const. These motions are also sometimes called writs of habeas corpus, and they can in certain instances result in a judgment and sentence being vacated, and of course that is your goal. There are no real strict time limitations as with an appeal that is generally 30 days. In Florida this can be filed up to 2 years from conviction. It appears the grounds that you want to argue, are some of the best in these type of motions, and that is, ineffective assistance of counsel. Because having your right to counsel includes the right to have competent counsel. It would be a joke if it were not this way, as if you needed a court appointed attorney, and the judge would only appoint an attorney that did not understand these cases, you will have been denied the right to counsel as defined by the case law because to have counsel means to have competent counsel. Your right to testify or not testify is an important constitutional right. So much so that at least where I am ,after the State rests it's case, the court on the record will inquire as to if my client desires to testify or not testify. It is explained to him by the Judge on the record his rights concerning this. Whichever decision he makes will be put on the record, and the Judge will question him concerning the decision, to make sure the decision he makes is freely done. So if you wanted to testify and you can prove you were not allowed, and that this was not a strategy decision, than this could be a basis for a motion of this type. Also, if you requested to have witnesses subpoenaed and to testify on your behalf, and your Attorney did not do this, and you can prove it, another great issue for this Writ. Both of these grounds, not being able to testify, and also denial of your right to present witnesses, are both valid excellent grounds for a motion for post conviction relief. It is a hard standard you have to meet for these cases, that the attorney's performance was below that of competent counsel, and the court must also be of the opinion that but for the mistakes your Attorney made, there would have been a different outcome at trial. The main US Supreme Court case to look at which sets the standards and outlines the procedure dealing with ineffective assistance of counsel is, Strickland vs Washington. Glad I could help. Good Luck, Steve
Customer: replied 5 years ago.
What are the rules for post conviction relief in Va, and how can I begin the process? Is there a specific form I need to fill out or a specific law I need to know?
Expert:  Stevexo replied 5 years ago.
Yes there is some law you will need to know, most of it of a Constitutional nature and are based on US Supreme court cases., the main one being Strickland v Washington, that establishes the standard and type of proof required for incompetent counsel. Also look at the case law in Va on Habeas Corpus, as other than post conviction on DNA, they do not have a very good statutory scheme for how it is to be done, so take your guidance from case law in the Habeas area and perhaps sample federal forms. The process starts by filing the writ, but this is not like an uncontested divorce and exact forms will be hard to come by. You need to get someone in your state who specializes in post conviction motions to handle a case like this. Sincerely, Steve