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Lawyer doesn't want to file motion to dismiss

Discussion in 'Justice System, Criminal Lawyers' started by lawbooger, Nov 11, 2021.

  1. lawbooger

    lawbooger Law Topic Starter New Member

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    Jurisdiction:
    California
    I have a felony criminal case pending and it is completely bogus. No crime was committed and the prosecutors are either intentionally framing what I have done as a crime or they are just really really stupid.

    I was so in shock when I found out about these charges I called and hired the first lawyer I spoke to. I paid him 5k retainer. I felt we were on the same page w everything. He promised he would give me a legal analysis on my case within 2-3 months of hiring him.

    its now been ten months and he is only just now starting to talk to me about my case. I am concerned we are not in agreement to proceed.

    I wanted him to file a motion to dismiss due to lack of personal jurisdiction.

    I live on the east coast and have never been in california during the alleged time period. THe "crime" occured online, but there actually was no crime, it was a case of confusion and mistake and I can easily prove that.

    I have previously represented myself successfully in court, twice this year alone, and both cases ended up with the opposing side being sanctioned and fined for their conduct against me. One of those cases I won on a motion to dismiss for personal jurisdiction. I know I'm not a lawyer but my point is I've done my research and read the relevant case law.

    My attorney said he wouldn't file the motion for dismissal based on personal jurisdiction but then after a few minutes of arguing the point back and forth he said he agreed with me and seemed to really respect my legal argument. I thought we were in agreement and on the right track.

    A few weeks ago he texts me and says he just got out of court, he didnt even tell me i had a court date until he got out of it! and we have another court date in a few weeks and the DA wasn't ready to discuss the case. I asked him when we are going to motion to dismiss and he said he didnt want to do it. That i would need to find another lawyer if I wanted to do that. his paralegal was on the phone call and promised to get me case law that explains why it cant b edone. they sent me Hageseth v the people and I read it and realized that my argument was even stronger than I thought. I for sure want to make this motion at the preliminary hearing, not after the hearing as my attorney wants.

    I don't even think my attorney has truly reviewed and pondered my case yet!

    I already paid this lawyer a flat fee. He is saying we can file the motion to dismiss after the preliminary hearing. I really think he is only saying this because my retainer needs replenishment after the preliminary and if he files a motion to dismiss before he gets more money, hes not paid more and hes out of a job w me if the motion is successful.

    I feel that I have very strong legal grounds to dismiss based on personal jurisdiction and I don't want to submit voluntarily to the jurisdiction of this california court without making them prove their case which I am certain they cannot prove.

    What can I do?
     
    Last edited: Nov 11, 2021
  2. justblue

    justblue Well-Known Member

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    What is the crime you are being charged with?
     
  3. lawbooger

    lawbooger Law Topic Starter New Member

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    Impersonation and identity theft. they are claiming that an online discussion page I made about someone is not a free speech protected discussion page but actually an IMPERSONATION page. That i'm pretending to be the person I am talking about instead of being a discussion page about them and related topics.

    I do not see how california can say they have jurisdiction over discussions about their residents. I feel that I just need to prove, and I think i can, that I was talking ABOUT someone, not impersonating them and the case should be dismissed at the preliminary.
     
  4. justblue

    justblue Well-Known Member

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    And you are being charged by the State and not the Federal Government?

    Take all your "proof" and information on the case and consult with another attorney. I highly suggest you don't attempt to do this pro se.
     
  5. army judge

    army judge Super Moderator

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    You have confused criminal procedure with civil procedure.

    The government need not have jurisdiction over a person to charge him or her with a crime.

    You need not prove anything.

    The state has the burden of proof in a criminal matter.

    The criminal defendant need only assert his/her defenses at trial to include affirmative defenses.

    If you are unsatisfied with your attorney you can hire another attorney who knows how to get "subbed" in to become your attorney of record.


    Inform yourself and stop discussing the case on the internet or anyplace else.

    As a criminal defendant you have the RIGHT to remain silent. If you're smart, that's exactly what you'll do.

    You should only discuss this sensitive matter with your attorney, no other persons, just your attorney.
     
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  6. lawbooger

    lawbooger Law Topic Starter New Member

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    you say i have confused criminal procedure with civil procedure however there does seem to be a way to make a motion to dismiss based on personal jurisdiction. where does it say in criminal law that a state can exert jurisidiction over a person in another state ?
     
  7. lawbooger

    lawbooger Law Topic Starter New Member

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    Lack of jurisdiction - Criminal Defense Wiki.

    "If a court fails to properly establish jurisdiction over an individual, or if the crime took place outside the court's geographical reach, then the accused can make a motion to dismiss the proceeding based on a lack of personal jurisdiction"
    "
    Personal Jurisdiction Personal jurisdiction in a criminal case is established when the defendant is accused of committing a crime in the geographic area in which the court sits. If a crime results in federal charges, the federal court that sits in the state where the offense was committed has personal jurisdiction over the defendant. In a conspiracy case, the defendants may face prosecution in any jurisdiction in which a conspiratorial act took place. This can include a number of states if at least one conspirator crossed state lines or if the conspiracy involved criminal acts in more than one state. KIDNAPPING is another crime that can establish personal jurisdiction in courts in more than one state, if it involves crossing state lines"
     
    Last edited: Nov 11, 2021
  8. lawbooger

    lawbooger Law Topic Starter New Member

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    my question is not whether I can make a motion for personal jurisdiction. I know I can. My attorney says I can. He just doesn't want to file it until after the preliminary hearing.

    I think this is because he wants to bill me for it and cant bill me if its filed at the preliminary. I want to know if theres any other strategic reason from a legal perspective to wait to file such a motion.
     
  9. cbg

    cbg Super Moderator

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    If you are looking for a law you can invoke by which you can force the lawyer to act as you want him to, there isn't one. If you are unwilling to abide by his advice and you are determined that the case be handled your way and no other, your recourse is to fire the attorney you have and hire one that will allow you to direct the handling of the case.
     
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  10. Zigner

    Zigner Well-Known Member

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    The state is proceeding as if the crime occurred within the state, and they are on solid ground for that.
     
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  11. justblue

    justblue Well-Known Member

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    I told you....take your file and seek a second opinion.
     
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  12. lawbooger

    lawbooger Law Topic Starter New Member

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    I have decided to represent myself pro se in criminal court in california.

    I want to do some research and see examples of motions. Past court cases to cite etc.

    What are some online resources or books that could help me with this difficult challenge of pro se representation?
     
  13. justblue

    justblue Well-Known Member

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    Go to a Law Library.

    Based on your original thread, you would be ...unwise...to represent yourself. I highly suggest your find an attorney that you trust to defend you in criminal court.

    Lawyer doesn't want to file motion to dismiss
     
  14. army judge

    army judge Super Moderator

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    Okay, good luck.

    You don't need anyone's permission to DO the things you cited above.

    You can proceed anytime the feeling strikes you.

    Good luck.

    You indicated that YOU desired to represent yourself in a criminal proceeding.

    I am not a person to deny anyone their desires.

    Good luck.
     

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