Am I allowed to file motion for retrial after I signed a waiver of rights to appeal? What about appeal?
Dallas, TX
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Posted 7 months ago in Appeals
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I wanted a hearing. Attorney did a plea bargain. He said I had 2 choices, One of the choices he was telling me (and 3 family members in another room) was what the JUDGE was offering. ( 2 yrs state) He DID NOT SAY that is what he THOUGHT judge would give. I kept asking 'are you sure'. Isn't there something else we can do. . He said yes, he was sure. Nothing else we could do. I took the other choice (another uncertain road) and signed the papers without even looking at what they were. I now know if the hearing had taken place, I might have gotten 6 months state jail. I wanted it over. 6 1/2 years of probation already. I would have rolled the dice IT WAS MY RIGHT!!!!!.. He was my attorney, not my babysitter. HOW CAN I OVERRULE MY OWN WAIVER OF RIGHT TO APPEAL?
Answers (3)Alan James Brinkmeier
This attorney is licensed in Illinois.
Posted 7 months ago.
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In exchange for the plea you were asked under oath if you understood the charges, the sentence, and the consequences. It was your decision to answer at that time under oath. If you said yes and signed and were not under duress in open court when you were before the judge, then an appeal is not a likely course that would be successful. What you know is that you waived your right to appeal.
As you were represented by counsel you acknowledge you talked it all through with the lawyer, too, Good luck to you. NOTE: This answer is made available by the lawyer for educational purposes only. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed professional attorney that practices in the subject practice discipline and with whom you have an atttorney client relationship along with all the privileges that relationship provides. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question. Cynthia Russell Henley
This attorney is licensed in Texas.
Posted 7 months ago.
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First, I assume that you were on probation (deferred or straight) for a state jail felony and that in some manner the State alleged that you violated the probation.
The judge essentially runs your probation. While the attorney may not have made clear that you had a right to a hearing, he made clear what would happen if you pursued a hearing - you would get the maximum sentence. There are some judges who will refuse to revoke a person & keep them in programs with the hopes that at some point they will get the picture, straighten up, and be successful. If you were able to get back into court (via, perhaps, a writ of habeas corpus), you would be in front of the same judge with the same rules, only now s/he would know about your attitude - that you don't care to work at and try to finish probation & you just want it over with. I can guess what sentence you might end up with and it isn't at the lower end of the range. Different judges have different rules so I cannot state with certainty that your judge would not have revoked you and given you the minimum. But, if you have had prior motions to revoke or adjudicate your probation, it is not likely that you would have gotten the minimum from any judge. You are right = 6.5 years is a long time. Given that you know the judge's attitude, you might try to do your very best to finish the requirements and then file a motion to terminate probation. Since it has been extended, the judge may find it best to terminate as soon as you complete your requirements. Kimberly S. Keller
This attorney is licensed in Texas.
Posted 7 months ago.
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To invalidate an appeal waiver, you will, at a minimum, have to demonstrate your agreement to the appeal waive was not voluntary. In light of the information you have provided, you will likely have a very, very tough time proving that. You stated under oath, more than likely, that you had discussed the case with your lawyer, discussed the plea arrangement with your lawyer, and knew what rights you were giving up as a result of pleading guilty. Those averments, if stated, will make it very, very difficult to prove the appeal waiver was involuntarily entered.
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