defendant robbed gas station with bb gun $130 taken, wore no mask, attendant did not get a good look, police entered defendant's home while 13 yr old nephew was home (unsure if entry was forced) found bb gun under defendant's bed. defendant robbed gas station to pay gambling debts. has no prior arrests or contacts with the law
what motions need to be filed? ( I am a pre-law student and am working on my final. this is a case we have to represent as a defense attorney) can defendant be charged with felony armed robbery?
DUI / DWI Attorney
This answer assumes that the defendant has been formally charged by way of an Accusation or an Indictment pursuant to O.C.G.A. Section 16-8-41. All pretrial motions, demurrers and special pleas are required to be filed within ten days after the date of arraignment, unless you have the court extend this time for filing. Preliminary discovery motions need to be filed wherein you elect to opt into discovery under O.C.G.A.Section 17-16-2; you request a copy of the Indictment or Accusation and a list of the State's witnesses pursuant to O.C.G.A. Section 17-16-3; you request the items of discovery as set forth under O.C.G.A. Section 17-16-4; and you request the names, current addresses, dates of birth, and telephone numbers of the State's witnesses. I am assuming inasmuch as you are a pre-law student you have access to these above code sections. If not, they can easily be retrieved through legal research resources on the internet. Also, you should file a motion to suppress any and all physical evidence retrieved from the search of the residence, as well as any statements that may have been obtained from the defendant during the search (be mindful of issues such as whether the minor nephew is alleged to have given supposed consent to the police to search the home or whether the search was conducted pursuant to a search warrant). Further, you should file a motion under Jackson v. Denno seeking to have the court exclude any statements made by the defendant. Also you should file a motion seeking to exclude any in-court identifications of the defendant. Depending on other facts in your case, additional motions may be appropriate. Also, keep in mind that although the State will have to show that the defendant took the $130 from the person of the attendant by use of "an offensive weapon, or any replica, article, or device having the appearance of such weapon", the defendant's use of the bb gun can be deemed to be an offensive weapon depending on the circumstances of your case. Whether or not the bb gun was such a weapon would not be the subject of a pretrial motion as it would be an issue to be resolved by the jury. The fact that the robbery was done to pay gambling debts probably will not generate much sympathy from the prosecutor as you explore the possibilty of a plea. Your final question of whether the defendant can be "charged with armed robbery" is answered YES. Try to have the charge reduced to robbery under O.C.G.A. Section 16-8-40, which upon conviction carries no mandatory minimum sentence, whereas a conviction for armed robbery carries a mandatory minimum sentence of 10 years. Such a reduction to the offense of robbery more likely than not would only be accomplished (assuming the prosecutor was willing to do such) with the defendant pleading guilty. A plea of guilty under the First Offender Act would be possible (if the prosecutor and court were agreeable) as the defendant has no prior record.
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