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Ineffective Assisstance Claim of Counsel-Excessive Restitution
I pled guilty to a White Collar crime a year ago, and was given a restitution order of $125,000. Needless to say, I made $7,000 dollars last year and am working as a waiter part time currently. I feel my attorney should have raised an objection at sentencing, and I also believe the judge erred in not conducting a fact finding inquiry to see my financial situation. He didn't even go over my Pre-Sentence report that clearly stated that I could not pay this amount. This case was in South Carolina, and there is clear unambiguous 4th circuit law that says the judge was supposed conduct an inquiry and use my Pre-Sentence report as a guide. I did not waive my right to an appeal on my plea agreement, and an Ineffective Assistance claim of counsel (2255) in not time barred.
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my e-mail is Myrtle501@aol.com Attorney answers (2)
Reputation Level 20
Answered over 3 years ago.
Criminal Defense Attorney in San Francisco, CA.
It is difficult to believe your time for appeal has not run; however, you may be able to attack the underlying judgment through a writ of habeas corpus. Financial ability is a factor in restitution but restitution itself turns into the equivalent of a civil judgement after your probationary period is up. Thus you cannot be re-arrested because you did not pay. Still you need to consult a SC lawyer on this.
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Reputation Level 6
Answered over 3 years ago.
White Collar Crime Lawyer in Seattle, WA.
The time for a direct appeal has almost certainly expired, but the time for a 2255 motion may not have. However, you have other options, which may be just as effective and more direct. One is to return to the sentencing court for a new hearing to modify the restitution payment schedule. Also, the attorney that previously represented you, or a new one, should be able to approach the Probation Office or the financial office of your US Attorney's office, or both, and seek modification of the payment amounts. Whether you can attack the restitution amount is not at all clear from what you've posted, but all federal defendants are entittled to reviews of their financial status and adjustments of their payment plans so they can survive.
Good luck. 2 people marked this answer as good
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