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Can son appeal a plea conviction??

Killeen, TX |

Son was charged with 3rd degree felony-AGG assault on family member. She was stripper that he slapped while driving around.Classified as dating violence in TEXAS. Prosecutor offered plea of 90 days in jail and 5 years probation with deferred adjudication. Son did the 90 days, probation set up, etc. After the 90 days in jail, goes before judge to be put on probation. Judge refuses probation. Gave 4 years in TDC. Son refused and set for jury trial. When son didn't take the 4 years because assault didn't happen in that county, the prosecutor files AGG kidnapping the next day because this can go from county to county. He was told this is a life sentence. Goes back to court and takes the 4 years because he was scared. No kidnapping occurred.Plea was 6/22/10. Court appointed lawyer.

Son signed the prosecutor's offer for 90 days in jail- 5 yrs deferred felony which he served the 90 days.(His 1st felony). Probation people visited him in jail. When he went back to court to be placed on probation, the judge refused the probation and wanted him to do 4 years. Son refused the 4 years at this time because the assault didn't occur in the county he was being tried.Victim testified it happened in other county. They then added the AGG kidnapping because this can go from county to county.(lawyer said) They first charged him with Agg assault on family member but that has been revised to just assault 3rd degree, when he took the 4 years plea because of the AGG kidnapping charge. Lawyer told him they were going for life. Scared him!! Agg Kidnapping was waived when he took the 4 years. but will always be on his record. His Lawyer told him if he tried to appeal, he would be charged with perjury!!

Attorney Answers 2

Posted

There are a couple of problems with your question. First of all, Aggravated Assault is a second degree felony and punishable by 2 to 20 years in prison (assuming no priors). If your son was placed on probation and served his 90 days as a condition of that probation, then he was ON probation and the Judge could not "refuse" it.

Now, the judge could have revoked it, but I'm confused about the part where you say he "gave 4 years in TDC". A prosecutor does have the ability to file aggravated kidnapping, which is a 1st degree felony and punishable by 5 to 99 years or Life in prison. It is not unusual to see prosecutors upgrade charges on an accused person in an effort to get them to plead out. But, that is not an automatic Life sentence.

He can make the argument that his plea was coerced and involuntary, but a Motion for New Trial needs to be filed almost immediately, and there will need to be some proof of the fact that his plea was involuntary or some new evidence that wasn't available at the time of the plea.

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Posted

Your son should consult with a lawyer right away. If he wishes to withdraw his plea, he should do so as soon as possible, preferably before sentencing. The longer he waits the harder it will be. Only a lawyer meeting privately and fully advised on the case could offer good legal advice here. This response is for informational purposes only and is not offered as legal advice.

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