My fiancé got sentenced to 9 years with an extended term HFO. Didn't have good representation. Can he go back and get time taking off due to the fact the alleged victim is now being prosecuted for similar charges?
Your fiancé has 30 days to file an appeal and 60 days to file a motion to modify his sentence. If you're within these time frames then I suggest you act quickly or he may lose the opportunity to do something about his sentences.
As a lawyer who's appeared before every judge in that circuit, I would caution you about pursuing this course of conduct with someone unfamiliar with the court.
Posting an answer to your question does not create an attorney / client relationship such that you can or should rely on the information provided herein to take action. Instead, it is intended to simply provide you with information. I am not your lawyer and cannot provide you with legal advice unless and until I am hired to do so.
You need to have the case reviewed by a new criminal defense attorney ASAP to see what, if any, post judgment motions can be made to alter or amend the original sentence. Each state has time limits in which to act. Act immediately.
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..
The short answer, probably not. One has nothing to do with the other. If he was sentenced after plea, he can motion to withdraw plea but would have to present legal reasons why he should be allowed to withdraw his plea. The court looks at things like whether the plea was voluntary and knowingly made. Dissatisfaction with the sentence, especially in a negotiated plea is unlikely to work. Within 30 days of sentencing your fiancé' can appeal the judgement and sentence of the court. Again, you will need to show valid legal reasons to get a do-over. [If he is beyond 30 days of sentencing, he can try to file a motion for belated appeal to win the right to file an appeal].
Two US Supreme Court cases that were decided in March 2012 may or may not be helpful to you:
Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (www.supremecourt.gov/opinions/11pdf/10-209.pdf)
In Cooper, the petitioner's trial counsel advised him to reject a plea offer of 51 to 85 months in prison made by the State and advised him to proceed to trial. 132 S.Ct. at 1383. The petitioner was convicted at trial and received a mandatory minimum sentence of 185 to 360 months in prison. Id. The parties conceded that counsel's actions were deficient. Id. at 1391. The Court held that the petitioner was prejudiced by counsel's advice and held that the proper remedy was to order the State to re-offer the same plea agreement. Id. at 1391. (citing Perez-Ortiz v. Sec'y, Dept. of Corr., 6:11-CV-188-ORL-31, 2012 WL 2285058 (M.D. Fla. 2012))
Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (www.supremecourt.gov/opinions/11pdf/10-444.pdf)
In Frye, the Court held that (1) defense counsel has a duty to communicate formal offers from the prosecutor that may be favorable to the accused; and (2) defense counsel acted deficiently when he allowed a formal plea offer to expire without advising the defendant of the offer or allowing him to consider it. 132 S.Ct. at 1408. The Court found that the prejudice inquiry required it to look not at whether the petitioner would have proceeded to trial absent the ineffective assistance, but whether he would have accepted a more favorable plea offer. Id. at 1410. (citing Perez-Ortiz v. Sec'y, Dept. of Corr., 6:11-CV-188-ORL-31, 2012 WL 2285058 (M.D. Fla. 2012))
The likelihood of a positive outcome- exoneration or a mitigated sentence- is increased with the help of an experienced criminal litigator. Seek out an experienced criminal litigator for a free consultation. If you cannot find one on Avvo, search at Florida Association of Criminal Defense Lawyers (FACDL.org) Speak to several that offer free consultation. Hire one that you feel comfortable with and you can afford. FACDL find a lawyer: http://tinyurl.com/8e4h3my