For the first time, some 14 months after a plea deal, I personally reviewed the case file searching for the truth and other aspects that would exonerate me. The criminal complaint alleges embezzlement and states that I was an employee of the company embezzled from. "Joe Doe, while an employee of XYZ company, did misappropriate cash and personal property in excess of $400........". This statement and the subsequent Information filed by the prosecutor were never heard or read by me and the public defender never noticed it and how the prosecutor came to this conclusion I have no idea.
Would this be grounds for post conviction relief if it is discovered 14 months after judgment, ie a new trial or dismissal?
I am not and never have been an employee of the XYZ company.
Not necessarily. I'm not sure if you are saying that you aren't a employee if the company, but even if this is true, being an employee is not a part if the crime if embezzlement. What is required is that you were given control of the property (for instance as an employee) and that you wrongfully took it for personal use. It is possible to withdraw a plea if new information is ra
Criminal Defense Attorney
Does the complaint have to be factually accurate? No. However, it must be based upon a good faith understanding of the facts.
As to grounds for post-conviction relief, it is unclear if such allegations were the basis for the plea bargain. Your counsel would be able to tell you about this.
In terms of setting withdrawing a plea, it generally must be done within six months. You are discovering this information fourteen months later. However, People v. Castaneda – a Cal. Supreme Court case – says the six month deadline for moving to withdraw a plea for an unrepresented is not a bright line as long as the motion is “seasonably made.” If much, much more than six months has passed, file a habeus corpus brief, as constructive custody is sufficient for habeas relief (see Villa case).
"Good Cause" to set aside a plea is shown when the defendant demonstrates that the plea was entered as the result of a mistake, ignorance, inadvertence or some other factor that demonstrates overreaching defendant's free and clear judgment. People v. Caban (1983) 148 CA3d 706; People v. Superior Court of City and County of San Francisco (1974) 11 C3d 793.
Talk to your attorney. The complaint's allegations may not have been what was the basis for the plea.
If you never have been an employee then how did you misappropriate? Don't answer on this public forum, but contact your attorney for further clarification. I'm certain there is a legal answer to it that many of us with limited facts would be shooting in the dark.
The response above is not intended as legal advice since it’s impracticable to provide thorough, accurate advice based upon the query without additional details. It is highly recommended that one should seek advice from a criminal defense attorney licensed in your jurisdiction by setting up a confidential meeting. Moreover, this response does not constitute the creation of an attorney-client relationship since this message is not a confidential communication because it was posted on a public website, thereby publicly disclosing the information, which is another reason to setup a confidential meeting with an attorney.
Some errors are NOT fatal to the case. Some are. Why it took you 14 months to review your own case is hard to understand and you may have missed your window of opportunity to do anything about it by waiting so long. That said, see an attorney IMMEDIATELY and have that lawyer review ALL your documents to determine if, under your state's laws you now have any options. Best of luck to you.
NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. Mr. Rafter is licensed to practice in the Commonwealth of Virginia and the US Federal Courts in Virginia. His answers to any Avvo question are rooted in general legal principles--NOT your specific state laws. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this matter.