did they violate my 6th amendment

[bernardmcse]

i was charged with what i found to be a "nonexistent crime" 10 years ago. being that long ago i am forced to make motion for leave to appeal. I have attacked the effectiveness of my counsel:

Issue 1. The defendant will show that his "counsel's performance was deficient and, but for his counsel's unprofessional errors, the result of the proceeding would have been different." United States v. Cronic, 466 U.S. at 694, and Powell v. Alabama "Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crimes, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.'' 194 The defendant states he did not receive ''effective aid in the preparation and trial of the case.' Powell v. Alabama, 287 U.S. 45, 71 -72 (1932); Glasser v. United States, 315 U.S. 60, 70 (1942).

Do I have a chance for leave to appeal?

More information

For the nonexistent charge I have found this arguement:

Issue 2. The defendant will show he pled to a nonexistent crime. See Achin v. State, 436 So.2d 30, 30 (Fla.1982) ("One may never be convicted of a nonexistent crime") and if in fact a nonexistent crime, "the conviction of a nonexistent crime is fundamental error, which may be raised for the first
time on appeal." Merritt v. State , 712 So. 2d 384 (Fla. 1998); Barragan v. State, 957 So. 2d 696, 697 (Fla. 5th DCA 2007); Fredericks v. State, 675 So. 2d 989(Fla. 1st DCA 1996)(holding that conviction of nonexistent crime is fundamental error mandating reversal even when error was invited by defendant).

 

[endrun]

You omit a great deal in your post such as:1)does the case law you cite apply totally or only partially to your situation, ie, were you convicted of a crime? 2)What are the details here, ie, what was the crime you assert was nonexistent and upon what references do you cite was nonexistant;3)What are any possible(or actual) counterarguments to your assertion that the crime you were charged with was nonexistent as such.

 

[dee_dub]

I would add that the case law you cite does not seem to be on point. It speaks to a layman's need for counsel, but does not say how effective that counsel need be. Nor does it suggest that what your counsel did, whatever that might be, was not assistance enough to satisfy your 6th amendment right.

But I'm not American, and what do I know.

 

[jezzicaz789]

hi all

Hi all!
I've just visited this forum. Happy to get acquainted with you. Thanks.

 

[jharris352]

I would agree with the others that we need a good deal more information. This happens to be one of my main areas of expertise because when I was in college I worked for a post conviction assistance project in Virginia. I've done 500+ habeas corpus petitions (both federal and state) and 499 of them cited ineffective assistance of counsel as their main area of "appeal." (Don't get anal with the number, I just mean almost everyone cites Ineffective assistance IA as their grounds.

As Dee_dub says, Chronic is not on point. The controlling landmark Supreme Court case is Strickland v. Washington 466 U.S. 668 (1984). You are to be complemented for even finding Chronic and Powers. Chronic is important as is Powers, but only if they are strictly on point. You can have no discussion of IA in US law without talking about Strickland. It IS the case on point.

Click the link and read the case. There is basically a two pronged test for IA: Did the attorney render deficient aide and did that rendering of inefficient counsel likely change the outcome of the case. Basically Error and Prejudice. Literally, your counsel could have SLEPT through the case and if the evidence against you was bad enough and the errors might not have "changed the minds of the jury" and Strickland would say you were not denied your 6th Amendment rights.

I've done a number of law review articles on this and even guest lectured at UVA on a number of occasions so I really need more information to focus my answer.

So questions:

1. Were you appointed counsel? If you paid for counsel the 6th Amendment IA argument does not apply.

2. I take it you were convicted? Are you still serving a sentence? If you are not currently "incarcerated" in some form habeas corpus is unavailable to you.

3. I can not imagine that you can file an "out of time appeal" from a conviction that occurred 10 years ago.

4. What exactly did the attorney not do on this "non-existent" crime?

5. What jurisdiction are you in?

Now please, do not write a book. Keep it short for us and use paragraphs so we can easily read it.

 

[CdwJava]

jharris, the original post was one year ago. The thread leaped to the top when a visitor passed by to say, "hi." I doubt you are going to get an answer to your questions. Though, I wish he (or she) would do so.