Legal Question in Criminal Law in Florida

Hi, my boyfriend just got 1 year and a day in prison. He didnt have the best Atty. The prosecuting Atty offered the 1 year and a day and his Atty never even tried to get a lessoer time like 6 months or something in county jail so I feel he got railroaded. However he has 30 days to appeal the verdict. Do you think it would be worth appealing the decision? This is the second time he VOP. We saw people that had public defenders that had more violations and more serious crimes than Brian and they were re instated. He doesn't want to appeal if he stands a chance of getting more time added. Also will he stay in the faulkenburg jail during the appeal process or will they still send him to Orlando FL for intake?

Asked on 5/20/11, 5:20 pm

1 Answer from Attorneys

Craig Epifanio Craig Epifanio, P.A.

You've got a lot of issues going on here so let me try to answer some of them. You don't say what he was charged with so one year may be a terrible sentence, but it could just as easily be a great sentence. To answer your last question, they will likely take him to the prison regardless of any appeal. Your other question is a lot more complicated to answer. Only your boyfriend, after discussions with the attorney, can decide if he should appeal. But appeal what? He pled knowing what he was doing right? He wasn't forced to accept the deal, right? He had the option to go to an evidentiary hearing (a VOP trial), right? Other than you feel the sentence is not fair, what can you appeal? Remember, to appeal it has to be either a CLEAR judge error, a CLEAR prosecutor error, or a CLEAR defense attorney error. The only thing you seem to be saying is that his defense attorney committed an error. Based on what you put, I don't know what error there is to be reversed on appeal. I wasn't there so I don't know if there was or not, but I am basing my answer solely on the facts you provided in this post. You can't appeal a sentence just because others may have gotten less, because the fact is that many people with or without public defenders get much harsher sentences for what some may consider lesser crimes. A judge is supposed to treat each person individually. How do you know the attorney didn't try and negotiate something better? Even if he didn't, would the state still have offered the same thing, or possibly something worse? As you can see, my response poses a lot more questions than it gives answers and that's because he needs to discuss this with his attorney, despite your feelings on the competence of the attorney. If your boyfriend isn't happy with his attorney, then hire a new attorney to appeal the potential ineffective assistance of counsel. He has options and I am by no means saying he has no hope, but all I wanted to do is express legally, SOME of the things that an appeals court looks for. Good luck.

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Answered on 5/22/11, 12:34 pm

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