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First, a Pro Se POST CONVICTION RELIEF was filed for an issue relating to tampering with evidence (a Joseph Graves issue) and the judge responded with:

Since Defendant is seeking to withdraw her plea of guilty on the basis of newly discovered evidence, she will only be allowed to do so upon a showing of "manifest injustice.”

Since the circuit court judge didn't agree, we had a professional appeal filed for the same issue and amended the appeal with a second sentence manipulation issue. 1.5 years later, the professional appeal was Per Curium Affirmed by the District Court of Appeals. No opinion was given and we don't even think anyone read it.

We then file another professional Post Conviction Relief based on the facts of the record to provide the judge with what he asked for: a "manifest injustice". The manifest injustice was sentence manipulation and cruel and unusual punishment.

The circuit court issued an ORDER DISMISSING DEFENDANTS UNTITLED MOTION AS UNTIMELY. Again, we don't think anyone read it even though we cited the Judges request for a showing of a manifest injustice and titled the sentencing manipulation issue "MANIFEST INJUSTICE", emphasized using bold and capitals.

Post Conviction Relief Document

Can the judge ask for a manifest injustice then dismiss the motion? What should the defendant do next? Can we ask for a thorough review and opinion because she was providing what the judge asked for? Is the lower court required to read appeals and post convictions before filing a motion?

  • If you're referencing a real world case could you provide an explicit reference so anyone interested in answering can examine the full situation instead of relying on your confusing summary? – feetwet May 20 '16 at 12:19
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    What was affirmed in the professional appeal? – user3851 May 20 '16 at 13:14
  • @Dawn, hopefully the edits will answer your question. Let me know if you need more information – Breakskater May 20 '16 at 19:28
  • I'm not quite sure what you mean when you say the appeal was affirmed. Usually "affirmed" means that the appeals court agrees with the lower court's holding and that the petitioner's appeal was unsuccessful. Is that what happened? – user3851 May 20 '16 at 19:46
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    @feetwet Okay, I've added the sanitized Post Conviction Relief document as a link to the question. Let me know if it needs further sanitization. It's a beautiful piece of work IMO – Breakskater May 24 '16 at 4:34
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It looks like you've glossed over the core problem here, which a trial lawyer might confirm: The responsive motion was ruled untimely. That's a pretty big obstacle to surmount. I.e., it doesn't matter how good your filing is; if it's untimely it doesn't merit consideration.

The only ways I know of to advance an appeal at such a point are:

  1. File a motion/petition for reconsideration/relief. The grounds for reconsideration of an order depend substantially on the nuances of the case, and can vary by venue, but they typically include:

    1. Mistakes of law or rules (by the court)
    2. Newly discovered evidence
    3. Misconduct or misrepresentation by another party (including your counsel)
    4. Excusable neglect
    5. Extenuating circumstances or other compelling justifications for the untimeliness of the filing. (E.g., the appellant was held hostage incommunicado during the response period, and filed as soon as freed.)
  2. Appeal the Order of Dismissal.

(I would also note that if I had paid a lawyer to file a motion, the motion was dismissed as untimely, and the lawyer hadn't given me adequate warning that it might be untimely under the rules of procedure; then I would take my lawyer to task and put the onus on him to fix the problem promptly, diligently, and at his expense.)


Amendment, having reviewed the Motion for Postconviction Relief:

It looks like there are three substantive questions:

  1. Is State v. Steadman binding on that court, and does it say what that Motion says it does? If so then all court officers made a mistake of law.
  2. Was the sentence based on an incorrect calculation of the drug weight? If so, then that represents a substantive mistake of fact warranting the court's reconsideration. But:
  3. If a defendant accepts a plea bargain, can any of these questions be raised in court? I would hope so, but (cynically) not be surprised if the answer is no.
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  • thanks. I think we will try #1 first because the sentence manipulation was (newly discovered) and overlooked by the defendant and court, (misconduct) was present by the officer, waiting for another appeal's decision before starting this post (extenuating circumstance and excusable neglect). I believe those are sufficient reasons for petitioning the untimely and for filing the post conviction relief? – Breakskater Jun 7 '16 at 3:16
  • @Breakskater - I think so, but ultimately it's what a judge thinks that matters! – feetwet Jun 7 '16 at 13:40
  • that's unfortunate but I agree – Breakskater Jun 7 '16 at 22:10
  • @Breakskater I don't think it was overlooked. The court just ruled that you didn't show that it amounted to manifest injustice. You lost your appeal of that ruling, right? Isn't it now law of the case that the sentencing manipulation didn't constitute manifest injustice? – David Schwartz Jun 9 '16 at 16:23
  • That issue, sentencing manipulation, was never heard by the lower court and no opinion by the court of appeals; I doubt the issue was even read – Breakskater Aug 6 '16 at 3:47
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I read it till page 4 only, following is my summarized version till pg 4 with inputs:-

State v. Steadman , holds that defendant does not have the right for downward departure sentencing but I believe she definitely have the right to be considered for downward departure sentencing (DDS) , whether she gets it or not thats a different scenario.

She's not asking for DDS as a matter of right because of sentencing manipulation by officer's conduct but to the least her matter is worthy of consideration because:

  1. sentencing manipulation by officer took place
  2. her counsel failed to address this critical issue
  3. plea bargaining happened in ignorance of above two things
  4. had she known before plea bargaining that sentencing manipulation could bring her reduced sentence, she might have chosen to go for trial instead of plea bargaining.

I agree with the reasoning given by judge w.r.t corrupt former employee, that doesn't help defendant's case. Can't see any injustice arising from this employee being corrupt.

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  • thanks for your answer. Can you read the post in its entirety? I would love to hear your feedback regarding the other issues: punishing end users as traffickers, disproportionate sentencing, active ingredient weight vs aggregate weight. – Breakskater May 31 '16 at 14:17

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