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Double Jeopardy appeal worthwhile

Vancouver, WA |

I was convicted of a felony and a misdemeanor for 1 single act. I had a public defender and therefore was allowed to get an appeal attorney at no cost (unless I lose). The appellate attorney feels there is a good chance to win at appeal but advises that result would likely be a vacation of misdemeanor conviction and nothing more. Also, she advises that if I lose the appeal, cost to me will likely be in the $4K neighborhood.

I have 3 previous misdemeanors and I'm starting to wonder if risk is worth potential benefit?

Also, case is "set for motion calendar" with Court of Appeals. What does that mean?

Attorney Answers 4

Posted

I don't think its constitutional to make an indigent person pay if the appeal is lost. Make the lawyer appeal that, too.

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Posted

That is an unusual system, that you would have appointed counsel on appeal but would have to pay for the attorney (or costs, or transcript charges, or whatever the $4K represents) if you do not prevail. Are you sure that is correct? It seems very strange, but I don't know anything about Washington law.

Based only on what you have described in your question, I would not think that there is a multiple jeopardy issue in your case at all. As a matter of state law you might be entitled to have one of the convictions vacated, which is what your attorney has already told you.

There is not much we can tell you except what you already know, that you have a decision to make and that you should make it in consultation with your appellate attorney.

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Robert Kinsey Taylor Jr

Robert Kinsey Taylor Jr

Posted

A lesser-included offense should merge, for sentencing purposes, with the more serious offense. If you were given two sentences -- one for a felony and one for a misdemeanor which constituted a component of the felony (a lesser-included offense, as legally defined), there is a double-jeopardy violation and the remedy is to merge or eliminate the sentence for the lesser offense. If that will shave time off of your overall sentence, it's probably worth an appeal. As noted elsewhere, I have never heard of a "loser pays" court-appointed criminal appeal system. I am not a Washington State attorney, but I would like to hear from someone in Washington State who can shed some light on this. Do you make criminal defendants pay for the transcription, etc., if they lose their appeals?

Posted

I would agree with the two previous answers. I really question a system built for persons who are indigent to have to repay costs for losing an appeal. That seems wrong. That being said, its a collateral issue that would be dealt with once the office charges you for the attorney fees, and could not be addressed in this appeal.

I think you should listen to the advice your attorney gives you much more than listen to the advice of people who don't know the facts of your case. i think that's why you won't get a direct answer.

That being said, double jeopardy is pretty straightforward and the attorney should be able to evaluate whether it was double jeopardy or not without much being left to discretion. Its your decision, so remember that.

Best of luck,

Shannon K. McDonald

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Posted

I agree with the previous posts that if you win on appeal its free, and if you lose, you owe money. That is not how the system works. I would consult with an independent appellate counsel to first find out if what you have been told is the true state of the law. In essence they're saying that we know you can't afford a lawyer, but we'll give you one for free. And if you win, its still free, but if you lose, you'll have to pay. Where does that money come from if you were already found to qualify for an attorney at no cost?

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