Celebrating 10 years! 2007-2017

Status Conference During Appeal

Client is appealing a DUI 1st conviction. States admits seiz stonewalljacksonfan04/17/18
In my state, you wouldn't be looking at jail time on a 1st o onehell04/20/18
He has a federal job with high sensitivity so it will harm h stonewalljacksonfan04/21/18
There would have been a statement of facts in the pleadings, thirdtierlaw04/21/18
Well, yeah that is the main expectation. But on the other h stonewalljacksonfan04/23/18
I did not have knowledge about such kind of rules of court, frankie05/12/18
what a good post stonewalljacksonfan05/12/18
stonewalljacksonfan (Apr 17, 2018 - 12:25 pm)

Client is appealing a DUI 1st conviction. States admits seizure. Conditional guilty plea, appeal. Court of Appeals grants writ, says there was a consensual encounter, so motion to suppress is denied (it says in the decision that if there was seizure there would have been reversal). Supreme Court denies writ by panel, we ask the whole court to consider the writ. Trial judge sua sponte sends a notice of status conference right after that. No other details about what “status” discussions will involve. Anything to expect - reporting to jail, plea deal, anything else? The motion is very strong but at the same Def got screwed by coa, which said in the decision that by record it should have reversed but then considered the judicial admission of seizure a statement of fact and reinterpreted
the seizure as a consensual encounter.

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onehell (Apr 20, 2018 - 11:25 am)

In my state, you wouldn't be looking at jail time on a 1st offense DUI but here at least, you also don't have to bring client to status conferences unless specifically ordered to do so. So if there's any worry you just don't bring them.

As to the reason, I assume it's cuz you lost the appeal so the trial judge figures "OK, you lost the appeal, so the condition on your guilty plea has been satisfied and I want to set this for sentencing." Sounds like you'll be asking to postpone that till a decision on your request for the en banc review, but I think that's discretionary relief and not an appeal of right so you might or might not get that postponement, and the prosecutor might or might not agree to it. It seems arguable whether a request to hear it en banc means it's still on appeal and if so, whether there is some kind of stay on further trial court proceedings.

In any case, I gotta tell ya I think I agree with the appeals court and the supreme court panel. You can stipulate to facts and you can choose not to argue a particular point of law, but conclusions of law are still are reviewed de novo and the appellate court has every right to rule that the stipulated facts show consent even if the prosecution chose not to make that argument.

In any event, isn't your client spending a lot of money on all these appeals? For a first offense to which he has conditionally pled guilty? At what point do you conclude that it's just time to take your medicine and put this behind you so the guy can move on with life? Does he have a CDL or something?

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stonewalljacksonfan (Apr 21, 2018 - 2:17 pm)

He has a federal job with high sensitivity so it will harm him. Prosecutor had the burden of proof of seizure and admitted seizure as a judicial admission. Court oof Appeals overruled the judicial admission and said there was a consensual encounter. Not sure how it works in terms of due process, because defense could never present evidence of seizure. All appeals starting with COAare discretionary relief. So writ with a panel of Supreme Court or writ with en banc are both discretionary relief. The client wants to go to writ of mandamus and SCOTUS then if unsuccessful.

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thirdtierlaw (Apr 21, 2018 - 3:29 pm)

There would have been a statement of facts in the pleadings, if the COA read those facts and decided that there wasn't a seizure, it doesn't matter what the State stipulated to below.

I think I remember you/your client posting about this on here before, and many of us believed that there was no seizure, sure you argued that the state stipulated there was, but if I remember correctly many of us disagreed with that conclusion.

Onehell is likely correct about trying to get it set for a sentencing hearing. The court will want to hear how much time you need, or if you've already reached an agreement on a sentence for the court to just adopt. It's pretty uncommon for a judge to not accept the proposed sentence on a DUI #1, they are pretty common and standard.

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stonewalljacksonfan (Apr 23, 2018 - 9:33 am)

Well, yeah that is the main expectation. But on the other hand, the "Status" conference request is very vague, not clear what it is for. Defendant is not required to appear. The court case status website says it is for motion hearing. COA affirmed the case based on consensual encounter. Defendant was convicted in trial court based on validity of the seizure. There is a chance that en banc grants writ, and if the defendant is scheduled to report for punishment before that, then what? All in all, a very weird case without a lot of precedent, thus the question.

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frankie (May 12, 2018 - 7:15 am)

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stonewalljacksonfan (May 12, 2018 - 9:43 am)

what a good post

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