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We need to know if my son can file a “post conviction

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Hello! We need to know...
Hello! We need to know if my son can file a “post conviction relief” himself, being that the ADC has not appointed an appellate lawyer for him. We have found that his trial lawyer never filed a motion for a new trial or the appeal. We had to get a paralegal to file one on behalf of my son! Can you please advise being my son is incarcerated and fears for his life!
Submitted: 1 month ago.Category: Criminal Law
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Answered in 5 hours by:
3/16/2018
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 1 month ago
Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 30,105
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Hi,

I'm Zoey.

I've reviewed your post. Please be patient as I may need to research for you, and it also takes time to compose and type a reply.

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Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 1 month ago

A defendant has the right to file for an appeal on his own behalf if he is no longer represented by counsel. Your son can do this for himself. However, the form and legal content is important in order to ensure that the appeal is not simply rejected by the higher court. There are, I'm sure, jailhouse lawyers who can assist your son with this, but if you can retain a post-conviction (appeals) lawyer, that would give him the best chance for success.

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Customer reply replied 1 month ago
My son was misrepresented by the public defender, witnessses were not called in during trial, he was interrogated by investigator while under the influence and physically sick, which was brought into trial. We believe their lack of to be either both prosecutor and defense lawyers are homophophic, racist (my son is Hispanic and the accuser is white), or deemed incompetent. The defense lawyer did not read nor investigate vital messages between the accuser and partner wanting to set up my son as the one who assaulted the accuser. The presiding judge even wanted to call a 35 c or a mistrial on the defense lawyer. The jury selected were predominantly all white (only 2 blacks were picked, and older), some were anti gay. An appeal will take a long time, and my son is being beaten up and threaten in prison. He fears for his life, being that other inmates knows he was in a gay relationship with the partner of the accuser. It’s a horrrible twisted mess, but we need help soon!
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 1 month ago

He can file a motion to grant him a new trial on the basis of the ineffective assistance of his lawyer. That would take less time to process than an appeal.

In the meantime, however, to address the safety issue, he could ask for protective custody and you could try to involve civil rights agencies who address dangerous prison conditions and who advocate on behalf of inmates, such as the ACLU, the Southern Poverty Law Center and the NAACP.

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Customer reply replied 1 month ago
Hello!
My son requested the Public Defender right after the trial verdict and he failed to do so. The lawyer quit on my son after the trial so the judge got him another lawyer who didn’t fight or do anything to help my son. This lawyer was asked by my son to file a motion for a new trial and he failed to do so until a year later and 3 days just before sentencing. Judge said it was too late and went on to sentence my son. My son filed a motion himself 5 months after the trial but the judge and DA denied his request. I contacted the ACLU but they couldn’t help us due to my son already being sentence. There has to be someone who can file on behalf of my son?
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 1 month ago

If the judge already denied the motion based on the fact that it's too late to file one and if the ACLU essentially said the same thing, the only remedy he would have left would be to appeal the case on Constitutional grounds.

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Customer reply replied 1 month ago
Hi Zoey! Can you define what is Constitutional grounds? And how to go about it?
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 1 month ago

When someone is convicted of a crime in Colorado, a notice of appeal must be filed within 45 days. That puts the state on notice that the defendant intends to appeal his conviction. If that is not filed in timely fashion, a defendant loses the right to appeal on almost all grounds except for those that are Constitutionally protected. For instance, if the court lacked jurisdiction, if the statute under which he was convicted was repealed as unconstitutional, if the sentence was illegal if there was newly discovered evidence which was unknown to anybody at the time of the trial but which, had anyone known was of the sort that would have changed the outcome of the case.

An exception could be possible if there were exceptional grounds preventing him from exercising his right in timely fashion. For example, if he was never told he had a right to appeal in the first place, or if his lawyer told him that he'd filed a notice to appeal but never did, that might allow him to file late. Then he could appeal for all of the possible reasons, such as a judge's error or the ineffective assistance of his counsel.

Most criminal lawyers do not handle appeals. It is a sophisticated and specialized area of criminal law. Pro se appellants generally don't do that will. Even with the aid of a lawyer, most appeals fail. But it's an area where a lawyer is necessary for best results.

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Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 1 month 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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