I Was being charged with a simple battery, but since I plead not guilty and ready to proceed to trial, the DA refiled my case with felony assault and felony battery, I believe it was out of retaliation and maliciousness because I refused to plead guilty, what type of motion could I use? I also never used a weapon as I'm getting charged with ADW I threw one punch and the threat was gone I stopped immediatly. It just so happened it was a lucky punch and gave the alleged victim a fractured jaw. I made no threats or stances as to imply me wanting to fight or showed any hostile behavior.
Criminal Defense Attorney
The prosecution can up the charge if the facts of the case warrant it. Here, you indicate that you fractured someone's jaw. Fracturing a bone is a class 4 felony. Causing a serious physical injury is a class 3 felony. Serious physical injury is defined as being so severe that it creates a reasonable risk of death or causes serious and permanent disfigurement or protracted impairment of an organ or limb.
The prosecution will base their case on what the victim and witnesses, if any, says happen. If someone says you had a weapon or you started the fight, then you will be charged accordingly. If it comes down to your word against the victims, because there are no other witnesses, then the prosecutor will usually side with the "victim." It will take you and your attorney to convince the prosecutor and perhaps eventually a jury, otherwise. Just saying you didn't start the fight won't be enough.
Attorney David Kephart is an experienced Criminal Defense Trial Attorney and Jury Consultant. He is the recipient of the Arizona Attorneys for Criminal Justice President's Award and the recipient of the International Academy of Trial Lawyers Commendation for Excellence in Trial Advocacy. His response to your question is intended to be a general statement of law, should not be relied upon as legal advice, does not create an attorney/client relationship, and does not create a right to continuing email exchanges.
Criminal Defense Attorney
If your question is can the prosecution file the "upgraded" charge the answer is yes. If your question concerns the viability if self-defense the answer is it depends. It depends on which of the participants in the altercation was the aggressor and if the response was appropriate. Other factors will be important to consider.
A motion based on your suggestion that the prosecution upgraded the charge based on retaliation is problematic.
Consult and retain an experienced criminal defense lawyer in your jurisdiction. This is your best approach.
Of course, every answer is based on the question asked and requires a more complete context. This answer should not be relied upon to make a legal decision. Seek the advice of an experienced criminal defense attorney before acting. Law Offices of Raymond G. Wigell, Ltd. Defenders of the Constitution since 1975/ Aggressive Creative Defense Strategies/ Website: www.waaltd.com 24/7 call (708) 481-4800 text (708)218-0923
Estate Planning Attorney
Fortunately, in your case, the prosecutor has to prove that you did not act in self-defense if you are alleging that is what happened. Unfortunately, that happens at a trial. It is certainly in your best interest to look at retaining private counsel, but for the upgraded felony charges, you should be eligible for appointed counsel if you can't afford your own. You should also discuss with them prosecutorial abuse of discretion which might apply in your case, but require certain facts that you have not stated in your question.
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