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Can I case be dismissed if the indictment charge is incorrect?

Plano, TX |

I have been indicted on a criminal charge in Texas. It is a state jail felony for first time offenders. It is a third degree felony for those who have a prior conviction of the same offense. I am a first time offender. My arrest report states "without a previous conviction." However my indictment document states "with previous conviction", a third degree felony. The charge on the indictment is obviously incorrect. I have no previous conviction. I read that an incorrect indictment can be amended up until the trial but will result in a case dismissal at trial. Is that true? If so, can the prosecutor just file another indictment with the correct charge? What's the likely hood of that happening?

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Attorney answers 3

Best Answer
Posted

Not exactly. If you are charged with a state jail with an enhancement paragraph, and the State can't prove up the enhancement, then you will just be convicted of a state jail. So you need to worry less about the indictment and more about finding an attorney to handle your case.

Macy Jaggers's answer to a legal question on Avvo does not establish an attorney-client relationship. Ms. Jaggers offers everyone a free consultation to discuss their case. Feel free to call her office at 214-365-9800 to make an appointment (phones are answered 24 hours) or visit her website at www.macyjaggers.com for more information about her services and recent victories.

Patrick Owen Earl

Patrick Owen Earl

Posted

I was going to post here too but Macy said it all.

Evan Edward Pierce-Jones

Evan Edward Pierce-Jones

Posted

I agree.

Posted

You need to hire a criminal defense attorney to represent you and defend the charge. A felony charge is a serious matter, your attorney will know how to handle any error in the indictment.

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..

Posted

Ms. Jaggers is absolutely correct. At trial, the prosecutor bears the burden of proving the charged crime and the enhancements beyond a reasonable doubt. If he or she fails to prove the charge, the verdict is supposed to be not guilty. The enhancement is part of the punishment case. If the prosecutor fails to prove that, then the punishment will be the basic level, not the enhanced level.

An amendment to an indictment does not require dismissal of the case.

A prosecutor may choose to seek a new indictment from the grand jury instead of amending the one that has already been returned. However, for most indictment problems, the cure is simply an amendment.

You really do need to get a lawyer to assist you with this matter.

Answers on Avvo are for general information purposes only and should not be relied upon as legal advice. No attorney / client relationship is created by providing this answer. For specific advice about your situation, you should consult a competent attorney of your choosing.