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JB Umphrey
JB Umphrey, Lawyer
Category: Criminal Law
Satisfied Customers: 20233
Experience:  Handling criminal and probation matters for over 14 years.
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If my criminal case is done but I have a civil law suit and

Customer Question

If my criminal case is done but I have a civil law suit and discovered new issues can I get a retrial in my criminal case? I did not go to trial in criminal or to prelim my public pretender coered me to take a deal
Submitted: 5 years ago.
Category: Criminal Law
Expert:  JB Umphrey replied 5 years ago.
Welcome and thank you for your question!

If you accepted a plea bargain, this means that you did not have a trial in your criminal case. When did you accept the plea bargain in the criminal case?
Customer: replied 5 years ago.
March , 2009 but recieved the new evidence in the civil law suit this year when the depositions n no reports were in the tecord for the sheriff dept
Expert:  JB Umphrey replied 5 years ago.
Thank you.

From the collective facts you've described, there is no legal basis to undue the criminal conviction. There are two reasons:

First, this is a situation where you plead guilty -- you did not go through a trial and had a jury convict you based upon bad evidence. If you were, in fact, not guilty, you had the right to go forward to a jury trial. You waived that right and, instead, took a calculated plea. Because of that, there is not a basis for the judge to set aside the conviction.

Second, there is a legal doctrine called "finality of judgment." Basically, that means that judgments aren't going to be aside aside, due to the passage of time because there has to be some finality. In this situation 3.5 years have passed. The finality of judgment rule is a separate reason why the judge would not set aside the conviction and order a retrial. This is a matter of procedure. It's not an avenue of recourse that a defendant is entitled to under law.

Be that as it may, an option that you could consider is to have your attorney present the new evidence to the prosecutor and see if the prosecutor will agree to have your plea agreement set aside. The prosecutor does have the discretion to agree to set aside the plea and dismiss/withdraw the original charge in the interest of justice.

I know that this is not what you wanted to hear but you deserve a candid answer. I wish very much that I could offer you an answer that was more favorable to your circumstances, but the law seems to be pretty clear. Had I been able to provide an Answer which might have given you a successful outcome, it would have been my pleasure to do so.

I hope you understand.

It has been my pleasure to assist you today with your information needs. It is my goal that you are satisfied. No expert can promise you an answer that is favorable to your circumstances. But I will do my very best to explain the legal principles that are related to the facts you’ve described so that you can better understand the “why” of things.

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~~ J.B.