My sentence by the judge for simple trespass was, 30 days EOMP, 15 days suspended to 1 year probation, plus the conviction on my record. I am also not permitted to enter the entire area where the plaintiff lives for one (1) year. No problem for most, however 90% of my income comes from that particular area. I live in a secure community with several sections. With no DL I am limited to a Golf cart, but still able to work in the community. DA was biassed, Judge went along, attorney I hired told me this is how it works here Craven Co district court in New Bern, NC. I did not violate anybodyies space yet I lost all I have worked for for the last three years. What recourse can I obtain to get my lively hood back from the injustice of a corrupt court system.
The short answer is: not likely. Judges have broad discretion in pronouncing sentences and the stay away order would likely be deferred to on appeal. You should consult with a criminal and/or appellate attorney for further advice on ways to attack the underlying conviction and/or sentence because if you go solely with a due process argument (violation of life, liberty and pursuit of happiness), that argument is not likely to succeed. Good luck.
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Criminal Defense Attorney
You could appeal on the constitutional basis that the sentence constitutes cruel and unusual punishment. Without knowing more, it seems highly unlikely that you will win on that basis. A successful appeal on that basis would result in a remand of the case for re-sentencing. If you were convicted by way of a guilty plea, you might be able to make an argument that the guilty plea was constitutionally infirm (invalid) if you can show it was not a knowing an voluntary plea. A defendant has to be aware of the elements of the crime he is pleading guilty to (what the state has to show to prove you guilty of that crime) the maximum sentences and the rights that you gave up by pleading guilty (rights to a trial by jury, etc.) You also have to admit facts which, if proven constitute the crime for which you were convicted. The fact that your sentence impedes your ability to make a living is usually not going to be a valid basis for an appeal.
"Life, liberty and pursuit of happiness" is a phrase from the Declaration of Independence, not the constitution. At the most it states a political aspiration, and it does not declare or establish any right cognizable at law. You do have a constitutional right to due process of law, which includes prohibitions on cruel and unusual punishment, but you are unlikely so succeed on those grounds on the facts you set forth in your posting. You may or may not have a challenge to your sentence under your state law.
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Criminal Defense Attorney
It is utterly commonplace for judges to put that term in a suspended sentence that you cannot be in the place where you were convicted of trespassing. I'm not saying you didn't get a raw deal, I'm just saying that you have received a totally normal punishment for a trespassing conviction. It's not harsh or unusual in the least.
Your money is better spent working on getting your license restored than on filing an appeal. And I do appeals for a living! I could tell you to pay me and I'll fight for you, but, realistically, sir, this is not a winner. Good luck figuring out your new business plans.
This information is for educational purposes only and is not intended to form a client/lawyer relationship. You can contact me for a limited telephone consultation or an email consultation at my website, www.sjfarberlaw.com, which is listed below. In addition to operating my own firm, I also work for North Carolina Prisoner Legal Services, Inc., a non-profit law firm which exists to protect the rights of prisoners in the custody of the state of North Carolina. If a loved one is in prison in North Carolina, advise the inmate that they may write to North Carolina Prisoner Legal Services, Inc. NCPLS will review their case at no cost and will litigate at no cost to the inmate if the case meets NCPLS' standards. NCPLS can also provide some assistance to inmates seeking to represent themselves. I am also available for cases that do not deal with inmates incarcerated in North Carolina's jails and prisons.
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