I am just very confused, we were not told anything about the recividist until he was sentenced. He has a prior felony for theft by taking of a motor vehicle and another felony conviction of possession of Meth. He had a public defender that just stood there while the judge spoke and never said a word. Also he has been in county for ten months and the judge never said he would get credit for times served. Would it even be worth trying to get him an attorney? Or should I just be ready to be alone the next ten years :( We asked for rehab and the judge denied it.
Benjamin David GoldbergCriminal Defense AttorneyMarietta, GA ·
When you say he was sentenced as a recidivist, it is unclear which recidivist provision he was sentenced under. If he only has the 2 prior felonies that you listed, the recividist portion of his sentence won't have any effect on where he falls on the parole grid. That being said, his prior criminal history could and will absolutely have an effect on his release date. If this is a residential burglary, the parole grid says he will serve 65-90% of his 10 years. If it is a non-residential burglary, it is much lower on the grid. Parole is an inexact science, so it is impossible to predict when he might parole out. It could be less than the 65%, it could be 100%. His best bet is to behave himself while incarcerated and take advantage of any and every class he can enroll in. Otherwise, there are lawyers who represent people trying to obtain parole. You can read about that here -- http://www.georgiapostconviction.com/
John Arnold SteakleyCriminal Defense AttorneyMarietta, GA ·
The time to get him an attorney was the moment he was arrested. Public defenders are usually adequate attorneys, but they function inside the limitations of their low budgets and high caseloads. Mr. Fife is correct that it doesn't sound like your fiance is a "recidivist" the way lawyers use that term to mean that someone is no longer eligible for parole.
If he IS a recidivist and was sentenced as such, then yes, he will do the entire 10. If he does not have enough prior convictions then he will be in the 65-90% range for residential burglaries and less for non-residential burglaries.
Assuming he is eligible for parole, remember that the 65% is just a guideline. The Department of Corrections isn't required to follow it. They actually have quite a bit of leeway in paroling people.
As for withdrawing the plea, a negotiated plea is essentially a contract between the prosecution and the defense, but the judge does not have to accept a plea. Some clients experience regret about pleading guilty and want to know whether it is possible to withdraw their plea and go to trial instead.
After sentencing, the decision whether to allow withdrawal lies within the trial court's discretion. In order to withdraw a guilty plea after sentencing has been pronounced, the client has to show that it is necessary to correct a “manifest injustice”.
Mere regret does not constitute manifest injustice. The client has to show that the plea was not a knowing, intelligent and voluntary plea. Clients can argue that they were not in their right mind, were misinformed, or for some other reason did not understand what was happening.
The client must also file the motion to withdraw a guilty plea in the same term of court as the plea. Visit my website to see the term of court for your particular county. After the expiration of that term, the trial court lacks jurisdiction to allow the withdrawal of the plea. Even if the client does not withdraw the plea in time, the client has four (4) years to challenge a felony plea via a Writ of Habeas Corpus.
Jesse Cole KentPersonal Injury LawyerLawrenceville, GA ·
The sentence is was the sentence is. I don't mean to be crass, but it sounds like this is now his second conviction; you don't get a "break" when you're a repeat offender. He'll do 10 years. There is very little chance any part of his sentence will change. In fact, if you file something to change his sentence, his sentence could get worse. If your fiance entered a plea, all of the public defender's work was done behind the scenes, so there was nothing for her to say in court while the judge was talking.
There is a difference between a judge or prosecutor calling someone a "recidivist" because they have prior felony convictions and someone being sentences "as a recidivist" under the recidivist sentencing statute. If he were to be sentenced under the recidivist statute, notice that recidivist punishment was being sought would have to have been filed by the prosecutor in advance of the plea. But if the defendant had just the two felonies that you mentioned, he would not have been eligible for sentencing under the recidivist sentencing statute. Parole uses a complex grid system which assigns point values to different circumstances. This being the third felony will give him points on the grid system that would increase his time in prison more than someone who had fewer or no past felony convictions (all other things being equal). You should consult with an attorney regarding any reconsideration of the sentence, because there would have to be basis other than you didn't like the sentence such as the sentence exceeding the negotiated plea (that being said, it is not true that he would be sentenced greater if the plea was withdrawn and re-tendered--a judge cannot sentence more harshly in retaliation but the judge can sentence more harshly for a guilty verdict than he did for the guilty plea). It sounds like your fiance tendered a non-negotiated plea, which would not give him protection if the judge sentenced more harshly than your fiance was expecting. Also, your fiancé should be entitled to credit for the time he served assuming that he was not serving other holds or sentences (for example if either of the previous felonies resulted in a revocation of the probation). If he is entitled to the time in jail, he can get an affidavit of custody from the sheriff and submit that to the Department of Corrections to make sure he gets credit for that time.
