A defendant pleads guilty without a plea bargain(an "open plea"). The crime: shoplifting that turned into a robbery. (The law used to be that if a shoplifter grabbed or pushed someone while leaving the store, that would be a misdemeanor theft, now it's a felony robbery.). The defendant used to have a good job, and has fallen into crime by becoming addicted to drugs. The defendant has priors. The lawyer was hired, not appointed.
The defendant is shocked to get prison time, real prison time, not probation or the substance-abuse punishment facility. " . . . I was misled," said the prisoner. The trial judge says, "I don't believe that's true."
Defense lawyer faxes the trial court coordinator a paper titled "Notice of Appeal" 31 days after sentencing,apparently stating that counsel had told the defendant that the plea could be withdrawn if the judge's sentence were harsher than the defendant would like and complaining- accurately- that the judge had been impermissably involved in plea bargaining. The appeal notice is not followed up. More than three-and-a-half years later, the defendant seeks, and gets, an out-of-time appeal. The opinion of the Austin Court of Appeals is assigned to retired presiding judge of the Court of Criminal Appeals John F. Onion, Jr., who reverses the trial court and remands the case to it.
Now this case can be said to be about the importance of filing a motion for new trial timely, having whatever evidence is necessary for it to be presented to the trial court . It is not, though. The trial court stated in the record that it did not believe the defendant's claim of having been misled. The trial judge had considered the defense argument, and disagreed. This trial judge was no prosecution whore. The trial judge was elected out of Austin and contributed to MoveOn.org back in the day
The trial judge really made a judgment about the situation at the beginning, knowing the circumstances and observing demeanor of the witness before him. Every appellate judge is, by comparison, a paper-shuffling latecomer to the situation.
If the motion for new trial had been OK, the Court of Criminal Appeals would likely have found some other reason to reverse.
The defendant is shocked to get prison time, real prison time, not probation or the substance-abuse punishment facility. " . . . I was misled," said the prisoner. The trial judge says, "I don't believe that's true."
Defense lawyer faxes the trial court coordinator a paper titled "Notice of Appeal" 31 days after sentencing,apparently stating that counsel had told the defendant that the plea could be withdrawn if the judge's sentence were harsher than the defendant would like and complaining- accurately- that the judge had been impermissably involved in plea bargaining. The appeal notice is not followed up. More than three-and-a-half years later, the defendant seeks, and gets, an out-of-time appeal. The opinion of the Austin Court of Appeals is assigned to retired presiding judge of the Court of Criminal Appeals John F. Onion, Jr., who reverses the trial court and remands the case to it.
Now this case can be said to be about the importance of filing a motion for new trial timely, having whatever evidence is necessary for it to be presented to the trial court . It is not, though. The trial court stated in the record that it did not believe the defendant's claim of having been misled. The trial judge had considered the defense argument, and disagreed. This trial judge was no prosecution whore. The trial judge was elected out of Austin and contributed to MoveOn.org back in the day
The trial judge really made a judgment about the situation at the beginning, knowing the circumstances and observing demeanor of the witness before him. Every appellate judge is, by comparison, a paper-shuffling latecomer to the situation.
If the motion for new trial had been OK, the Court of Criminal Appeals would likely have found some other reason to reverse.
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