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What motion or letter can you submit to the courts to appeal sentencing if your lawyer won't submit appeal for you

Boca Raton, FL |

Conspiracy charge was senetance by federal guideline but should have recived decution 2x1.1 by the way of 2b1.1 according to PSI report but the attorney didn't argue it at sentencing

Attorney Answers 5

Posted

You need a competent criminal defense attorney that practices in federal court ASAP. The Federal Criminal Rules of Procedure are strict and have deadlines. You may want to make a motion to reconsider the judgment with a brief BEFORE filing a Notice of Appeal. This is serious, get educated counsel to help: your lawyer or a new one to give a second opinion.

I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..

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Posted

Totally agree with Attorney Mascagni. This is serious stuff with deadlines looming.

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Posted

It is very strange that the attorney "won't submit appeal for you." Have you asked your attorney plainly to file a notice of appeal? That is all the trial court attorney has to do. If you are still within fourteen days of the entry of judgment you could file the notice yourself just to be sure that it gets done in time, or even write a letter to the judge stating that you want to appeal. But the best way is to have an attorney file the notice of appeal in the proper manner. Somebody else can take over the actual representation on appeal, but the notice has got to get in on time or there are big headaches at best and a blown appeal at worst.

It is trial counsel's legal duty to do this for you.

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9 comments

Asker

Posted

He informed the sentencing judge at sentencing he wants to be removed from the case so he doesn't have to file the appeal. The judge told he he has to submit a motion to the Magistrate Judge to be removed. He hasn't filed the motion and isn't responding to any calls or emails. The 14 days is fastly approaching this friday. Can I just find a sample letter online to how to write a letter to judge?

Joshua Sachs

Joshua Sachs

Posted

The way I understand the law he does not have to represent you on appeal but he does have to file the notice of appeal for you in the district court and he has to file it on time. He does not have the legal choice to refuse. If he is retained counsel he has no obligation to handle the appeal himself. If he is appointed counsel he can move either before the district court or before the court of appeals to withdraw. But, whether retained or appointed, on the way out the door he must file the notice of appeal. That is his final duty as trial counsel and he must perform it. Is this retained or appointed counsel? If appointed, call the federal defender's office. If retained, hire somebody else immeidately, even if only for the purpose of making sure that the notice of appeal gets filed. Anything else can be cured. Failure to file the notice is not so easy to fix. We are talking about a very short three-or-four sentence document here.

Asker

Posted

This is a retained counsel. I will keep trying to contact him to get him to file the appeal. I guess in the meantime I can just write a letter stating I plan on appealing and submit that to the courts. Thank you

Joshua Sachs

Joshua Sachs

Posted

Once the notice of appeal is filed you will need appellate counsel, whether retained or appointed. As my colleagues have all noted, and as I fully agree, an appeal is not a do-it-yourself project, and often it is best put in the hands of an appellate specialist. Listen, if you keep telling your attorney to "file the appeal" you will confuse him and scare him off. You want him to file the "notice of appeal," that is all.

Frank Mascagni III

Frank Mascagni III

Posted

I agree wholeheartedly. Have the attorney file the notice ASAP OR YOU GO TO THE CLERK'S OFFICE AND HAND WRITE A NOTICE OF APPEAL AND FILE WITH THE U.S. DISTRICT COURT CLERK.

Joshua Sachs

Joshua Sachs

Posted

By the way, you do realize that the fourteen-day notice of appeal runs from the date on which the judgment of conviction is "entered," and that "a judgment or order is entered . . . when it is entered on the criminal docket." Fed. Rule App. Pro. 4(b)(6). So you don't count from the date you were sentenced in open court. You count from the date on which the sentence is entered in the court's docket. This may (or may not) give a you few more days. But filing too soon is better than filing too late. The clerk will probably be willing to tell you the due date, but perhaps not. That is getting close to giving legal advice.

Joshua Sachs

Joshua Sachs

Posted

I am comforted by Mr. Mascagni's agreement. I feel very uneasy giving advice on a case about which I know nothing, particularly where there is an attorney involved already, and I would not do it were it not for the apparent upcoming deadline.

Asker

Posted

Thank you so much I truly appreciate the knowledge you all have shared. THANK YOU THANK YOU THANK YOU

Frank Mascagni III

Frank Mascagni III

Posted

Counsel, I read many of your excellent responses and find them well informed and reasoned. You are an asset to this site and I'm sure to your clients.

Posted

Need to know when the sentencing took place to better answer. Assuming you have private counsel, consult and potentially hire other counsel to see if their is a legal basis to pursue. It may have been a tactical/legal reason for not arguing. What reason have you been given for non-appeal?

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Posted

Hire an attorney that has experience with federal criminal cases. What you are saying is very strange because attorneys typically do the notice of appeal automatically to preserve the client's rights.

The information provided herein is provided as general legal information and does not constitute legal advice. The information is based on the facts given and should not be relied upon by the reader. An attorney-client relationship is not established by this transmitting this information. The best way to receive accurate advice and establish an attorney-client relationship is by retaining a licensed attorney.

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