Families of SOs Community Group
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My husband was sentenced to 7 years for possession/distribution of CP and is in the appeals process now. His attorney says there are a few things on his probation she feels she can get changed; and she says there were some issues she can bring up (for example - the prosecutor lied about a couple things). Does anyone have experience with the appeals process? What should, if anything, I expect? If you have gone through this process, what would you have asked your attorney beforehand? His attorney said I can contact her with any questions so I am making a list of things I would like to ask.
I am assuming your husband signed a plea bargain for his charges instead of going to trial. The reason I say this is that 99% of the CP cases are negotiated with a plea bargain to avoid a trial, since CP defendants usually have a much harsher sentence if rendered by a jury than if they plead with the prosecution.
When you say he is in the appeals process, is he appealing his conviction or is he having probation problems and he wants his probation modified? There is a difference. An appeal of his conviction is attacking the conviction only and has nothing to do with the terms of his probation. If he is challenging his conviction and is filing an appeal with the Court of Criminal Appeals, since he signed a plea, he has very few appealable issues. After all, he agreed to the plea bargain and the conditions of the plea when he signed it and was sentenced. He can possibly appeal that his attorney did not make him aware and he signed a plea he did not understand----in effect, an ineffective counsel issue----but that is rarely successful.
Now if the attorney is appealing the actual conviction, if he should prevail and get the case overturned, the appellate court will usually just remand the case back to the original jurisdiction for a retrial. In other words, your husband starts all over just as if the first conviction never happened. At this point the prosecutor can take the charges to trial or allow him to plea again. I have seen cases when a conviction was overturned and the case was remanded back to the country of conviction and the offender received a much harsher sentence the second time around. I was in prison with a guy who had a five year sentence overturned by the Court of Criminal Appeals. The case was remanded back to the county of conviction, and the DA would not allow him to plea. Instead, he went to trial and received 80 years.
If he is appealing his conviction that went to trial, please understand that the appeal judges do not replay the trial and try to determine who was lying or whatever. They have great respect for the jury and their contention is that the jury was there, heard all the evidence, and made a decision. So they will not interfere with the jury verdict. The appeals court only wants to make sure that the state or government convicted your husband by following the law and the legal trial procedures. They want to make sure that no evidence was presented that should not have been presented, that the judge’s instructions to the jury were within legal means, that the DA did not step out of line in some manner---procedural issues.
So, I doubt the attorney is appealing the conviction. Is he currently on probation? If so, then a decent attorney can sometimes get the conditions of the offender’s probation modified in his favor. This is a much easier proposition that challenging the conviction. Some POs override their authority and make conditions that were not set out at sentencing. POs cannot change sentencing orders. POs are only officers of the court and they job is to see that the sentencing orders are carried out; they do not make the rules. They have a wide latitude, but they cannot get out of line. The judge at sentencing is always the final arbiter.
For an example, a PO cannot set out conditions that are unreasonable or incompatible with the crime. In a CP case, preventing computer usage is reasonable, but not being able to go to shopping centers where children may be with their parents is not reasonable.
I have given you a lot of information about the appeals process. If you find that some of his probation conditions are unreasonable, they can possible be changed or modified.
I also fully understand that all of this is new to you, so if I did not make things clear, please contact me with your questions. I write very long posts bc I want the folks to understand my message.
Message me or post another message on the board if you have any questions at all.
rewdiazepam
He did not sign a plea deal. He went to trial and was found guilty by a jury. The prosecutor did offer a plea - 6 years (I think it was 6, may have been 4), but he did not want to take it because he is adamant he did not do what they say he did. The judge went with probation's recommendation of 7 years. He has been in a FCI facility since end of October 2016 and has a current release date of February 2023.
So, I am assuming his attorney is appealing his conviction. He was told that the only way the judge would give him more time is if he gave her a reason to give him more time. Is that not true? She also said she is going to try and get some of his charges dismissed because there are multiple charges of the same thing.
You said "They want to make sure that no evidence was presented that should not have been presented" - there was evidence that was misrepresented (I can't go into detail), which is one of the issues his attorney wants to bring up. The prosecution also limited my testimony at his trial.
As far as probation, his attorney says how his probation rules (?) are written now he cannot even go to the grocery store by himself with our daughters (6 and 3 right now) since he is unable to be alone with children under the age of 18 - she feels she can get that changed and I am hoping and praying that she does because that will make our lives a little easier.
I should also mention this is in Arizona so I'm not sure if that makes a huge difference.
Thank you for all of the information, this is certainly an overwhelming process. I have read your responses to others in the same situation and I appreciate all of your advice.
If he went to trial, then he undoubtedly has some appealable issues, as no trial is perfect. I don’t know if any of the issues will be enough to overturn the conviction, as appeals, as a rule, are not successful very often.
One obstacle that an offender faces on an appeal is a legal doctrine called “harmless error.” Harmless error means that the appeal court acknowledges there was an error made, but the error was not egregious enough to affect the outcome of the trial. If they rule harmless error, then the case will not be overturned and remanded.
Another point is that usually an issue cannot be brought up on an appeal unless the defense attorney objected to it during the trial.
So he is in federal prison.
You said, “So, I am assuming his attorney is appealing his conviction. He was told that the only way the judge would give him more time is if he gave her a reason to give him more time. Is that not true? She also said she is going to try and get some of his charges dismissed because there are multiple charges of the same thing.’
Yes, the attorney is appealing his conviction. If he prevails on his appeal and it is remanded back to the original jurisdiction and pleas a second time, the judge will probably not give him more time that his original sentence. BUT if he wins an appeal, and decides to take it to trial again, he CAN receive a harsher sentence, as the jury will recommend a sentence at that point. Yes, the judge will be the final arbiter, but if the jury came back with a 20 year sentence the second time around, the judge may not want to buck the jury and allow the longer sentence. Judges are elected officials and they usually defer to the jury regarding the sentence it imposes.
If some of the charges were multiple charges, then the attorney might be successful. Maybe with some of the charges dismissed, your husband will fare better.
A seven year sentence for CP after going to trial is not a terrible sentence. Most guys serve anywhere from five to 10 years on a simple possession for a first time offense, but remember, your husband was convicted of distribution. Federal law has mandatory minimums which are set by Congress. Distribution, receipt, or manufacturing CP carries a mandatory minimum of five years on a first time offense at the federal level, while there is no mandatory minimum for simple possession. States usually have no mandatory minimum for these charges.
The biggest drawback with a federal conviction is that there is no parole in the federal system and an inmate must serve approximately 85% of his sentence. He actually only receives 54 days---actually 47 days---a year good time credits for good behavior. State prisons are usually more generous with their good time credits. But even if he does not win his appeal, he will come out OK. He’s going to be OK.
If there was faulty evidence, that can be an appealable issue for a new trial.
You said, “As far as probation, his attorney says how his probation rules (?) are written now he cannot even go to the grocery store by himself with our daughters (6 and 3 right now) since he is unable to be alone with children under the age of 18 - she feels she can get that changed and I am hoping and praying that she does because that will make our lives a little easier.’
Probation rules are always very strict in the beginning. The PO acts like a hard ass to put the fear of God into the probationer until he sees that the probationer is not a problem offender who will try to push the envelope and break the rules. Once the PO sees this, he is more lenient. In the beginning he may have a curfew, but that will be probably be lifted after several months. As far as your children, expect the PO to not allow him to be alone with them for a while after his release from prison. But since they are his biological children, at some point, he can be a normal father.
The PO will not be this strict forever, even if it is tough in the beginning. POs have a horrendous caseload of a few hundred offenders and if they see an offender with a wife and kids---a family---doing his best to just follow the rules, he is usually happy to let up so he can concentrate on the troublemakers. Probation departments do not have the resources or manpower to watch every probationer like a hawk.
Take this one day at a time and keep your faith. He will be fine.
If you ever need me, I will be around. You can contact me any time.
rewdiazepam
Wendy
To begin, I am so sorry that you son has such a cranky probation officer who seems to be so unreasonable.
A PO is an officer of the court. He does NOT make up the rules of probation, but he only enforces the rules of probation as set out at sentencing.
Each state has some standard rules for sex offender probation as set out by state statute. Sex offender probation rules are very intrusive b/c the state uses the normal probation rules, but adds extra conditions for the sex offender. Her are some of the rules for sex offender probation in Florida---
http://tinyurl.com/y9aeahud
The particular rules for each sex offender are tailored for the offender himself and his offense. Your son may not have all the conditions on that list or he may have some conditions that are not included in that list.
The PO can modify some of these rules, but he cannot just willy nilly start making up his own rules. He can only enforce the rules of probation which was laid out in the plea bargain or by the judge at sentencing.
Some POs push the envelope and try to make rules that are not part of sentencing. POs have a wide range of rules they can enforce b/c one part or stipulation of probation is that the PO can “use any means needed to facilitate the rehabilitation of the offender.” So the PO has a wide latitude to make and enforce rules.
But some POs make rules that are unreasonable and unrelated to the crime. Since the judge---NOT the PO---is the final arbiter, he sets the rules out at sentencing.
A rule that a sex offender is not allowed around minors is reasonable since the sex offender may commit another crime against children. A rule that a sex offender cannot have a driver’s license is unreasonable since driving a car has nothing to do with his crime. A rule that a CP offender cannot get on a computer and access the internet is a reasonable rule; telling someone who robbed the local liquor store he cannot be on the internet is unreasonable. The rules have to be relative to the crime.
PO rules can be unreasonable and can be appealed to a judge.
But going over the POs head in an effort to change the rules of probation is tricky and risky. If a probationer rocks the boat too much, the PO can make life hell for him, even if the PO is in the wrong. So, a probationer has to choose his battles and be wise with his choice.
Your son would be best served by learning to get along with his PO. A good relationship with the PO is a prescription for an easier time; a bad relationship is a prescription for a trip to hell and back.
If a rule is just silly and unreasonable, a probationer can petition the court and ask the judge to either chastise the PO or change the rules of probation. The judge always has the final say.
In the beginning, the PO is always a hard ass and is very strict with the probationer. The PO wants to see what kind of person the probationer is. He wants to see if the probationer is a decent guy only trying to get through probation or if he is a continual problem by pushing the envelope regarding the rules. In the beginning, the PO does not know your son from Adam, so he is rather strict.
Always keep in mind that the PO is God to the probationer. He can revoke the probationer if the probationer continues to break the rules. If he revokes the probationer, he can be sent to prison to finish his sentence.
After a few months of being overly strict, as the PO figures out that your son is not a troublemaker, not going to be a problem, and only wants to serve his probation without any turmoil, he will begin to simmer down, relax some of the rules, stop being a hard ass, and it will be easier for your son. This is generally what happens.
Denying every address you give to him is just a bunch of foolishness, but the PO will have control over your son’s life---especially in the beginning as I described----and can tell your son where and where he cannot live. Florida is the worst state in the country for sex offenders and by far the worst for residency restrictions.
Wendy, you said, “He also threatened to violate my son and send him to jail because he lives in a proper designated area in my jeep on the side of the road public street parking.”
POs make a lot of threats to keep their probationers in line, but let me tell you something important-----It is not the POs decision who is revoked or not. And, they won’t likely revoke your son for his first infraction; usually there has to be multiple instances in which the probationer breaks the rules. And often, even when the probationer is revoked, he does not go to prison. He often just goes to jail for a couple of months.
If a PO does try to revoke your son, he has to petition the court with the reason for the revocation. The judge---remember he is the final arbiter----will listen to the evidence and decide whether there is enough evidence for a revocation. And the judge will hand down the punishment if he is revoked. Judges often do NOT take the POs side in these matters. Some judges do not even like POs.
But your son is only trying to follow the rules, so he won’t ever get revoked. CP offenders are rarely troublemakers, as they are usually decent guys who just made a mistake.
Wendy, you asked, “How can I get my son a new PO.”
Let’s try making things work with this PO first, as getting a new one is complicated. While this PO is a major ass right now, he will probably become more pleasant as time goes by.
Wendy, I have been through the whole gamut with our criminal justice system. From an arrest, to a false conviction at trial, on to the registry for 13 years. I was never on probation, but I have helped dozens upon dozens of offenders and their families that have been on parole or probation. We WILL get through this.
Anytime you have a question, a concern, or just need to talk, you can send me a private message or post here on the open board. I frequent several sex offender support boards and prison reform boards, but I come over here a few times a day to look at the posts and retrieve my messages.
I will be here if and when you need me.
Take one day at a time, keep your faith, try to relax, and we will talk anytime you need me.
rewdiazepam
This is to add to my previous message on this thread’
Let me tell you how to find a place where your son can live.
Let’s see if we can’t get you started.
Go to the Florida sex offender registry site, then to the offender search page. Here is the link below---
tinyurl.com/2czp4c
Scroll down about halfway down the page. You will see a tab or area which says “Offender Search.” Just to the right of that tab, you will see two more tabs labeled “Standard” and “Guided.” Let’s try the “Standard” option.
Click on “Standard.” Now scroll down about halfway down the page and you will see some white oblong boxes where you can input information. For our search, we will pretend you want to search for all the offenders in Jacksonville. Since I have no idea the area you want to look in, I chose Jacksonville. But you will have to type in the name of the town you are interested in.
Type Jacksonville or whatever city in the “Offender’s City of Residence” area and click “search.” I just did a search for Jacksonville and the search returned 2,144 results. Each result has the offender’s address and a link to a map to their residence. Most offenders have a “show map” link in dark blue text. When you click it, you can see a map showing where they live.
NOW, COMMON SENSE WILL TELL YOU THAT THE OFFENDERS IN THIS LIST ARE COMPLIANT WITH FLORIDA LAW AND ARE ABIDING BY THE SEX OFFENDER REQUIREMENTS. NOTICE THE ADDRESSES IN WHICH THESE OFFENDERS RESIDE. YOU KNOW THAT THAT ADDRESS IS ALSO COMPLIANT.
SO NOW YOU KNOW THE GENERAL AREA TO LOOK TO FIND A PLACE FOR YOU AND YOUR SON. THIS PROCEDURE WILL GIVE YOU THE GENERAL AREA WHERE THESE OFFENDERS ARE LIVING, SO YOU KNOW SOME LANDLORDS IN THAT AREA ARE RENTING TO OFFENDERS.
But, let’s get even more specific. Keep looking at each offender’s address. If you keep looking down the list of offenders, you will eventually find an address that includes something like “Apt 4” or “Apt 5” or something that shows the offender lives in an apartment complex. For example, I went to the page three of our search results for Jacksonville. I found that an offender named John A. Allen who lived at
1848 W 5TH ST APT 2
JACKSONVILLE, FL 32209-6065
Bingo. You now know that 1848 W 5th St. is most likely an apartment complex that rents to sex offenders. You can no doubt find several offenders in any general area that are living in rented apartments.
When you have a list of the addresses, start calling. You may not want the offenders that live in Jacksonville, so use the city or area of your choice.
Remember when we began our search??? Instead of inputting our information in the “Offender’s City of Residence” box, we could have used the “Offender’s County of Residence” if you want to use the county instead of the city for your search. Or you could use the zip code. Either way will give you a list of offenders.
If you have problems with any of these links or need some help, contact me or ask on the board. By determining where other sex offenders are legally living, you can find an area for you and your son.
Good luck,
rewdiazepam
PS If you completely come to a dead end, message me. The last thing I would ever want would be a mother and her son living on the street with no place to go.
rewdiazepam
I have very few kind words to say about Alabama,Florida or Louisana.
I was contacted by a registrant who lived in Panama City near his sisters house in his car. He had been a car dealer up north who got caught with cp on his laptop. I told him how he could become a truck driver as he had been doing day labor for two years. Today he is a truck driver and lives in NC .