defendant was charged with possession and dealing same drugs. He was found guilty of both and sentenced for both. (55 yrs )30 for dealing (no deall occured) and 25 for poss, run consec. Def. Did not raise double jeopardy, HOWEVER the state did and C.O.A. responded: Even though def did not use the term double jeopardy, we (C.O.A.) feel he meant to. Now is def bared from raising claim of double jeopardy in his pcr. After all you can't deal in ANYTHING without first possessing it right?
It would be really difficult to answer this question without reading the briefs and the opinions - however, in general terms you cannot "waive" constitutional claims and double jeopardy is a constitutional claim. I don't want to speculate, but if they are stating that you are claiming it is double jeopardy, and it is now, then that is what they are potentially referring to. They cannot permit a double jeopardy claim to stand and if it is a true double jeopardy situation, you should be able to bring that up on a PCR. You should get a good, experienced appellate lawyer to review your case and try to provide some direction to you. Best wishes to you.
No attorney client relationship has been established by this response. This information is based only on the facts and details provided in the question and is more of a general explanation or citation to the applicable law, or portions of the applicable law concerning your case, and should not be construed as "legal advice" but "legal information." You should still contact a lawyer to review your case in detail, as well as any and all legal documents in your case, and to obtain specific advice based on your situation. You should not post private information or identifying information in your question, for your own protection, as this could be used against you or as evidence by an averse party later on. I am only licensed to practice in Indiana and any information I post that involves another state should not be construed as practicing law in that state. Please be advised that if you would like to formally retain me, and/or our law firm, you must sign a formal retention agreement and adhere to the terms of representation in order for an attorney/client relationship to be formed between us. Please be sure to rate the best answer, or mark your answer as helpful, if you believe the information posted was helpful to you. Please be sure to read the AVVO usage terms and those terms are hereby incorporated herein.
Keep in mind that I am not an Indiana attorney.
Your question is not entirely clear, but if my understanding of your question is correct the issue is much too complicated for this kind of forum to address adequately.
Here is what it seems to me that you are asking. You took an appeal from a trial conviction. It is not entirely clear what issues you raised on appeal, but perhaps you addressed the question of whether you could be subject to retrial in the event that your appeal were successful. You did not specifically argue that double jeopardy considerations would prevent a retrial, but the State argued, and the court of appeals apparently agreed, that you raised a double jeopardy issue by implication whether you specifically used those words or not, and it decided the double jeopardy issue against you.
Now, having lost your direct appeal, you are worried that the court's double jeopardy ruling on appeal may stand as a res judicata bar to any attempt you might make to raise double jeopardy in a PCR or other subsequent proceeding. Is that what you are asking?
In my opinion, again not being familiar with Indiana law, you have a serious worry. If the argument you presented to the court of appeals truly depended on double jeopardy considerations, you cannot escape res judicata simply by avoiding the magic words. On the other hand, you may have a strong argument that you cannot be held to have raised and lost an argument that you did not actually make.
This is a very difficult procedural issue, far beyond the capacity of a simple Q&A forum to resolve. A court could resolve it either way and, as my colleague notes, the outcome would depend very heavily on just what was said and argued in the briefs and decision on your appeal.
It sounds like you are concerned that your double jeopardy claim is barred by res judicata on pcr. Did counsel raise it on direct appeal or not? If he did not but should have done, do you have a claim of ineffective assistance of appellate counsel? These and other questions come to mind. You need to speak with a lawyer about your case. This is too important to do it yourself.
This answer is intended to provide you with general information and is not legal advice upon which you should rely. Do not think that this post establishes an attorney-client relationship between us.
Our Rating is calculated using information the lawyer has included on their profile in addition to the information we collect from state bar associations and other organizations that license legal professionals. Attorneys who claim their profiles and provide Avvo with more information tend to have a higher rating than those who do not.What determines Avvo Rating?Experience & background
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline