Criminal Law

Criminal Law Questions? Ask a Criminal Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Criminal Law

in 1980, i was convicted of (2) robberies and (1) assault,

Customer Question
convicted and sentenced to 30...
in 1980, i was convicted of (2) robberies and (1) assault, convicted and sentenced to 30 years.

a) collected from the cene of the crime was 1 baseball cap and a glove gthat witnesses said fell out of the perpetrators pocket. Witnesses stated that the perpetrator had one glove on and one in his pocket, while in flight the cap fell off of his head and the glove fell out of his pocket.

b) Filed September 1 2002, was a request for DNA testing, pursuant to V.A.M.S. 547.035,RSMo., on both the cap and the glove which was granted by the Court. The motion was subsequently denied December 2, 2003, by the court based upon the prosecution stating that they didn't know where the items where at.

c) in appealing the courts deciasions, it was asked that the prosecution be ordered to at least provide chain of custody cronology documentation, evidence logs, which was also denied.

QUESTION: What is current precedent law reqarding an issue such as this and the arbitrary denial of the DNA request by the court based upon the prosecutions just saying they didn't have the evidence? What if any can be filed to overcome any procedural bar, pursuant to Missouri law, regarding this issue?

Case No. 801.00669, Appeal No 43449 Eastern District Missouri, State V. Cook 637 s.w. 2d 110(Mo.App.1982); Cook v. State, 741 s.w.2d 678 (Mo.App.E.D.1987)
Submitted: 5 years ago.Category: Criminal Law
Show More
Show Less
Ask Your Own Criminal Law Question
Answered in 2 hours by:
12/1/2012
Criminal Lawyer: Hammer O'Justice, Criminal Lawyer replied 5 years ago
Hammer O'Justice
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4,502
Experience: Almost 12 years of legal experience, primarily in criminal law
Verified
Hello.

The issue you are discussing is not so much an issue of precedent but of statutory law. Missouri has a statute regulating post-conviction requests for DNA testing.
http://www.moga.mo.gov/statutes/C500-599/5470000035.HTM

The movant bears the burden of producing facts that meet the statutory requirements. And the standard for the court order is very high, meaning that the court does not have to order DNA testing unless a reasonable probability exists that the DNA evidence will disturb the conviction.

There have been a few cases that have addressed the law more in depth, and what the requirements of the court are:
http://www.leagle.com/xmlResult.aspx?page=5&xmldoc=2005275164SW3d111_1243.xml&docbase=CSLWAR2-1986-2006&SizeDisp=7

http://mo.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20030415_0000526.MO.htm/qx

Basically, a court is given wide discretion to determine if the moving party has met the requirements. The court is required to issue findings and conclusions that support its decision. The appellate court is limited to setting aside the court's ruling on the DNA issue if "the motion court's findings and conclusions are clearly erroneous," which is a high standard.

The other problem is that at this point, you are not eligible to have the issue considered again. You filed the request, and it was denied, and then you could have appealed it. At this point, the issue has been fully and finally litigated. It also seems that from your question, you are no longer in custody and have served your sentence. The DNA testing is only available for individuals who are currently incarcerated (see the law above). So because you have waited too long since your original petition to take the case to the highest court that you can, and because you are not eligible under state law for testing any more, there is nothing you can do about the retest unfortunately.

While DNA testing is not available to you, there are other routes you can take to try to address the conviction. A writ of error coram nobis is a petition that requests that an earlier conviction be set aside because of some fundamental error with the conviction (such as evidence not known at the time, which may include DNA testing). You can also try to obtain a pardon, which is official government forgiveness of the conviction:
http://doc.mo.gov/division/prob/ExecClem.php

Sorry I can't give you better news about the DNA testing issue, but it is too late due to the fact that you already filed the request and too much time has passed to request review of the denial.
Ask Your Own Criminal Law Question
Ask Hammer O'Justice Your Own Question
Hammer O'Justice
Hammer O'Justice
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4,502
4,502 Satisfied Customers
Experience: Almost 12 years of legal experience, primarily in criminal law

Hammer O'Justice is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends.

NormaPensacola, FL

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

< Previous | Next >

Meet the Experts:

Ely

Ely

Counselor at Law

3,194 satisfied customers

Private practice with focus on family, criminal, PI, consumer protection, and business consultation.

P. Simmons

P. Simmons

Lawyer

2,063 satisfied customers

16 yrs. of experience including criminal law.

RobertJDFL

RobertJDFL

Lawyer

1,862 satisfied customers

Experienced in multiple areas of the law.

LawTalk

LawTalk

Lawyer

1,815 satisfied customers

30 years legal experience

Nate

Nate

Lawyer

1,736 satisfied customers

Over 10 years of criminal defense practice.

Marsha411JD

Marsha411JD

Lawyer

1,631 satisfied customers

Licensed attorney with 29 yrs. exp. in criminal law

AttorneyTom

AttorneyTom

Lawyer

1,242 satisfied customers

Attorney

< Previous | Next >

Related Criminal Law Questions
Motion to correct an illegal sentence under rules of the
motion to correct an illegal sentence under rules of the criminal procedure … read more
Ray
Ray
Lawyer
Doctoral Degree
30,828 satisfied customers
Ms.. My nephew was charged with Robbery by Intimidation. He
Good evening, Ms.Wilson. My nephew was charged with Robbery by Intimidation. He is currently serving 15 year sentence with a maximum possible release date of 2022. He was 18 at the time and under the … read more
Zoey, JD
Zoey, JD
Doctoral Degree
181 satisfied customers
My brother was sentenced to 7 year in prison and completed
Hi My brother was sentenced to 7 year in prison and completed 5 … read more
Dwayne B.
Dwayne B.
Juris Doctor
28,688 satisfied customers
I was convicted of a felony and was sentenced to 3 year
I was convicted of a felony and was sentenced to 3 year probation. After a year of probation, the probation officer asked court to waive the rest of my probation which he granted the order. My questio… read more
Ely
Ely
Counselor at Law
Juris Doctor
3,194 satisfied customers
My son was sentenced to 4 years with 85 percent can he go to
My son was sentenced to 4 years with 85 percent can he go to fire camp and get half time or is it mandatory to do 8t% … read more
Nisha Jones, Esq.
Nisha Jones, Esq.
Juris Doctorate
1,731 satisfied customers
What happens in a sentencing hearing? The case specifically
What happens in a sentencing hearing? The case specifically I'm wondering about is a sexual battery case, but maybe all sentencing hearings progress the same way. Do the attorneys speak, then the defe… read more
RobertJDFL
RobertJDFL
Lawyer
Juris Doctorate
1,862 satisfied customers
I want to understand what happens in a Florida sentencing
I want to understand what happens in a Florida sentencing hearing following a murder conviction. I understand these hearings are transcribed and made available as public record. Where could I find the… read more
Dwayne B.
Dwayne B.
Juris Doctor
28,688 satisfied customers
HiHi, my partner was charges with aggravated robbery and was
HiHi, my partner was charges with aggravated robbery and was indicted. He accepted a plea to an amended charge of robbery. The case was weak but the prosecutor told him if he would plead guilty that t… read more
Zoey, JD
Zoey, JD
Doctoral Degree
181 satisfied customers
My daughter is serving an eight year prison sentence in
My daughter is serving an eight year prison sentence in Nevada. She has an interstate agreement from Arkansas. Looking for forms to request her sentence in Arkansas run concurrent with Nevada. … read more
Nisha Jones, Esq.
Nisha Jones, Esq.
Juris Doctorate
1,731 satisfied customers
In criminal law, if someone is awaiting sentencing of a
Second opinion] In criminal law, if someone is awaiting sentencing of a Federal Felony and I have evidence that should be considered by the sentencing Judge, how can one ensure the evidence is brought… read more
James Daloisio
James Daloisio
Attorney
Doctoral Degree
79 satisfied customers
Is it a mandatory 3 year minimum sentences for 948.12(1m) in
Is it a mandatory 3 year minimum sentences for 948.12(1m) in Wisconsin. What if the person is not a threat to society... can he just get probation??? … read more
Zoey, JD
Zoey, JD
Doctoral Degree
181 satisfied customers
I had a criminal court hearing and was sentenced, but was
I had a criminal court hearing and was sentenced, but was never sworn in can this be thrown out… read more
Nisha Jones, Esq.
Nisha Jones, Esq.
Juris Doctorate
1,731 satisfied customers
In 2009 i plead no contest to a robbery conviction. on this
in 2009 i plead no contest to a robbery conviction. on this case i had a codefendant who committed the crime. I did admit to providing information which led to the crime but it is factual and clear th… read more
Zoey, JD
Zoey, JD
Doctoral Degree
181 satisfied customers
I had a robbery conviction in 1984 6 mo jail and 3 yrs
I had a robbery conviction in 1984 6 mo jail and 3 yrs probation, I got an expungement. Does that mean I can now do jury duty? … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,307 satisfied customers
If a sentencing order states:" Sentenced to six years to be
If a sentencing order states: " Sentenced to six years to be served concurrently with revocations of his/her probation in cases A and B"... does this confirm that the sentences count as one incident o… read more
Thelawman2
Thelawman2
Doctoral Degree
1,287 satisfied customers
I was the victim in an attempted robbery. The assailant has
i was the victim in an attempted robbery. The assailant has been arraigned and bail set. The assistant DA has requested that I testify before a grand jury but I dont really want to for various reason.… read more
LegalKnowledge
LegalKnowledge
Juris Doctor
28,100 satisfied customers
MY BOYFRIEND WAS SENTENCE TO 24 YRS FOR ARMED ROBBERY. HE
MY BOYFRIEND WAS SENTENCE TO 24 YRS FOR ARMED ROBBERY. HE HAS SERVED 17. HE IS HAS NOT HAD ANY INCIDENTS, HE TEACHES AND HAS COMPLETED EDUCATIONAL COURSES AS WELL. IS THERE ANY AVENUES THAT I CAN TAKE… read more
Hammer O&#039;Justice
Hammer O'Justice
Criminal Lawyer
4,502 satisfied customers
What are the sentencing guidelines for armed robbery,
What are the sentencing guidelines for armed robbery, kidnaooing and false imprisonment? … read more
Dwayne B.
Dwayne B.
Juris Doctor
28,688 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x