Criminal Trials, Hearings Felony Conviction Set Aside in Georgia

[hellosunshine]

In 2010, I was convicted in Georgia of terroristic threats and acts (O.C.G.A. 16-11-37), which is a felony and sentenced to 3 years probation, which was part of a plea deal. The charges stem from a text message in which I sent to my then-boyfriend, who filed a police report. My boyfriend and I continued our relationship even though these charges were still impending, but he told me that he asked for the charges to be dropped or withdrawn. I later discovered that he had lied; he never made any request for the charges to be dropped.

Once my court date arrived, my boyfriend (who was now my ex)never showed up to testify in court, but told the DA that I had been stalking him and his ex wife for over a year. I was completely blown away by these allegations, as both my ex's and my cell phone and email records would refute. In spite of this evidence, and that fact that I had no prior record, I was still convicted and had a private attorney. Less than a month following adjudication, my ex contacted me to apologize for my ordeal and wanted to rekindle our relationship, but I refused. Subsequently, he has contacted me at various times even on my birthday and even though the court ordered him to have no contact with me.

I would like to hire a new attorney to file a motion to either have my conviction set aside, or be granted a new trial (or a trial since I never had one) based on newly discovered evidence (my ex contacting me after he asserted that he was in danger of me) and the cell phone and email messages that will prove my ex continued to have a relationship with me and lied to authorities about being stalked. A request for a new trial would also be based on prosecutorial misconduct in that the DA relied on the false statements of a witness to convict me.

I would like to know what chance I might have for getting retribution. Will I be granted a trial to assert my Fourth and Sixth Amendment rights? If so, will I still be on probation or does everything start over from the beginning.

 

[Michael Wechsler]

What you're describing is problematic. You have already been convicted of a crime. Why didn't your attorney bring up the contact from your ex at your trial? At this point, I'm wondering whether your attorney was incompetent and you had "ineffective assistance of counsel." I tend to doubt that since most people are not that incompetent. If you continued your relationship, why was this not raised in court? If it was, what happened?

Appeals typically require that (a) you show that the court made an error of fact or law (in this case fact), and that (b) assuming you can establish the first prong, the error was significant and without it, you probably would have been acquitted. That's a pretty high bar to reach. Was this evidence you speak of not available at trial? If you're talking about a perjury charge, that is very serious and you should probably bring your evidence to a prosecutor - perhaps not the same one if you feel he or she may not give you the time of day since he or she is convinced you were guilty.

Something tells me that I'm not hearing the entire case with all the relevant facts but the above contains the general requirements for an appeal.

 

[hellosunshine]

Hello thelawprofessor,

Yes, I agree that this is a problematic issue with much, much more to the story; but, I couldn't explain the entire situation on this forum. To answer your questions, yes, my attorney had the evidence regarding the cell phone and text messages between my ex and I. And yes, my attorney as well as the district attorney knew that my ex and I had continued our relationship, even weeks prior to my sentencing. It appears that my attorney was more interested in protecting my ex than in representing me.

I appreciate your advise and plan to file an appeal, pro se.

Thank you again.