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Can a felony dwi conviction be overturned after the appeals period has expired?

Richmond, VA |

I was convicted of a felony DWI (3rd) when the record stated thatthis would have been a 2nd offense. The preious one was classified as a first offense. I was told by my attorney to plead Guilty at the trial, in order to receive lieniency, yet still got convicted of the felony by an overzealous proecutor, newly appointed to that Court. No appeal was filed or ever offered, and no plea deal was ever offerred to me. My life has been destroyed, in the prime years of my life, and I need a way to get back on my feet. I am hoping that there is a way to at least reduce the charge to a 2nd offense. The appeals period ran out while they sent me straight to jail, I had no way of even filing an appeal, and the attorney never made the effort to file one. It happened over 3 years ago. Please advise.

Attorney Answers 2

  1. If your conviction occurred over three years ago you are definitely too late to appeal and the opportunity for some other post-conviction remedies has probably also lapsed.

    No judge should have accepted a plea of guilty to a DUI 3rd felony without proof that two qualified prior convictions occurred. One issue of note is that if you have two DUI convictions, even if both are termed a "1st offense," a third conviction can still be a felony conviction. It is the number of DUI convictions within the statutory time period, not the nature, that counts.

    You might want to find an attorney in your area who specializes in post-conviction relief. Make sure you have a frank discussion about the merits of your case and the likelihood of success before you hire anyone, though.

  2. I completely agree with Mr. Cornick. In addition, I would like to add that there are ancient writs that are recognized in Virginia that may be available to you in your case. Additionally, you could ask for a pardon, but these are exceptionally rare.
    Good luck with you case.

    [Note: Consistent with Avvo policy, this communication is intended as general information and not specific legal advice, and this communication does not create an attorney-client relationship.]

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