According to the transcript of the plea hearing in trial court, he judge states there is a bill of information that needs to be signed, without having defendant sign the judge continued askinf he defendant questions, then convicted him without the bill of information being signed. It was signed after attorney made threat but it's clear as day that the judge convicted defendant before it was signed.
I believe a friend on avvo may have asked the same quetion but didnt metion that it was signed AFTER being convicted.
Thank you for the advice this person has filed a Motion for Appropriate Relief however the Judge that was recused from his case from the start of all this somehow was the Judge to review this motion and denied it, she went so far as to Barr him from future filings.
Criminal Defense Attorney
The timing is close enough that it does not matter. The defendant signed the information at a time when it was clear that that his intent was to accept the plea bargain. This level of technical minutia is not going to get him anywhere. If he wants a trial and the time has not passed for him to withdraw his plea, he can try to do that and put the case in front of a jury. If the time has passed, he can still try a Motion for Appropriate Relief to try to change the outcome of his case.
1 lawyer agrees
DUI / DWI Attorney
I agree with Seth on this one. Sounds like the Bill of Information was signed contemporaneously, which would likely preclude a Motion for Appropriate Relief.
Article 89 of Chapter 15A of the North Carolina General Statutes is a good starting point:
Article 89. Motion for Appropriate Relief and Other Post-Trial Relief. § 15A-1411. Motion for appropriate relief. (a) Relief from errors committed in the trial division, or other post-trial relief, may be sought by a motion for appropriate relief. Procedure for the making of the motion is as set out in G.S. 15A-1420. (b) A motion for appropriate relief, whether made before or after the entry of judgment, is a motion in the original cause and not a new proceeding. (c) The relief formerly available by motion in arrest of judgment, motion to set aside the verdict, motion for new trial, post-conviction proceedings, coram nobis and all other post-trial motions is available by motion for appropriate relief. The availability of relief by motion for appropriate relief is not a bar to relief by writ of habeas corpus. (d) A claim of factual innocence asserted through the North Carolina Innocence Inquiry Commission does not constitute a motion for appropriate relief and does not impact rights or relief provided for in this Article. (1977, c. 711, s. 1; 2006-184, s. 4; 2010-171, s. 5.) § 15A-1412. Provisions of Article procedural. The provision in this Article for the right to seek relief by motion for appropriate relief is procedural and is not determinative of the question of whether the moving party is entitled to the relief sought or to other appropriate relief. (1977, c. 711, s. 1.) § 15A-1413. Trial judges empowered to act. (a) A motion for appropriate relief made pursuant to G.S. 15A-1415 may be heard and determined in the trial division by any judge who is empowered to act in criminal matters in the district court district as defined in G.S. 7A-133 or superior court district or set of districts as defined in G.S. 7A-41.1, as the case may be, in which the judgment was entered. (b) The judge who presided at the trial is empowered to act upon a motion for appropriate relief made pursuant to G.S. 15A-1414. He may act even though he is in another district or even though his commission has expired. (c) When a motion for appropriate relief may be made before a judge who did not hear the case, he may, if it is practicable to do so, refer all or a part of the matter for decision to the judge who heard the case. (1977, c. 711, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 71.) § 15A-1414. Motion by defendant for appropriate relief made within 10 days after verdict. (a) After the verdict but not more than 10 days after entry of judgment, the defendant by motion may seek appropriate relief for any error committed during or prior to the trial. (b) Unless included in G.S. 15A-1415, all errors, including but not limited to the following, must be asserted within 10 days after entry of judgment: (1) Any error of law, including the following: a. The court erroneously failed to dismiss the charge prior to trial pursuant to G.S. 15A-954. b. The court's ruling was contrary to law with regard to motions made before or during the trial, or with regard to the admission or exclusion of evidence. c. The evidence, at the close of all the evidence, was insufficient to justify submission of the case to the jury, whether or not a motion so asserting was made before verdict. d. The court erroneously instructed the jury. (2) The verdict is contrary to the weight of the evidence. (3) For any other cause the defendant did not receive a fair and impartial trial.
NC General Statutes - Chapter 15A Article 89 2
(4) The sentence imposed on the defendant is not supported by evidence introduced at the trial and sentencing hearing. This motion must be addressed to the sentencing judge. (c) The motion may be made and acted upon in the trial court whether or not notice of appeal has been given. (1977, c. 711, s. 1; 1979, c. 760
NOTE: Although a response is provided to the specific question, there may be other facts and law relevant to the issue. The questioner should not base any decision on the answer and is specifically advised no client-lawyer relationship has been established. Put simply, seek the advice of competent counsel without delay to discuss the particular aspects of the case, factual scenario and historical background. NOTE: There may be other facts and law relevant to the issue. Readers should not base any decision on the;information provided herein and are specifically advised no client-lawyer relationship has been established. Put simply, seek the advice of competent counsel without delay to discuss the particular aspects of the case, factual scenario and historical background WHY: The content herein is provided for educational purposes and should not be inferred as applying only to DWI / DUI criminal defense. In fact, it may be equally relevant to claims of personal injury involving accidents and the consumption of alcohol or more simply, to the daily practice of law. Bill Powers lectures on such issues on a regular basis with the intent to educate, to be fair, to be accurate and to encourage, open, honest and scientific discussion on the subject. Attorney Bill Powers did NOT represent the Defendant in the particular cause of action.