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Appealing Violation of State & US Constitutional Rights for Defendant


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#1 GaryLee

GaryLee

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Posted 20 February 2013 - 06:49 PM

Gary Lee, Mohave County, AZ

I filed the following motion 2/19/13 Any other suggestions for rules of court, statutes, case law to strengthen the above argument for defendant's constitutuional criminial rights in Appeal to Appellate court seeking relief from Superior Court?

MOTION RESPONSE TO PROSECUTOR
DENYING to VACATE JUDGEMENT

Per Criminal Rule 24.2a3 Motion to vacate judgment; That the conviction was obtained in

violation of the United States or Arizona Constitutions. This means that court has previously

litigated the case; thus muting the prosecutor’s statement regarding multiple times. It means the

court violated defendant’s constitutional rights multiple times not just once. Hence defendant

made several attempts. Neither is the issue regarding timeliness. The issue is clearly violation

of defendant’s AZ and US constitutional rights. The case law supports defendant’s protection

of constitutional rights as Rule 24 above points out, to prevent ignoring defendant’s constitutional

rights as follows:


The appellate court acknowledges defendant was charged with 13-2904(A) via e-ticket. “The

court agrees with the defendant and the state that the e-ticket issued lacked specificity to place the

defendant on notice of the crime alleged.” U.S. Const. Amend. VI. In all criminal prosecutions,

the accused shall.... and to be informed of the nature and cause of the accusation......

AZ Const Preamble 2 Section 24. Rights of accused in criminal....to demand the nature and

PAGE 2 of 4
cause of the accusation against him, to have a copy thereof......

The STATE of Arizona, Appellee v. Enis John CHERAMIE, III, Appellant. No. 2 CA-CR

2006-0319. Court of Appeals of Arizona, Division 2, Department B. November 30, 2007.

U.S. Const. amend. VI. This means that an indictment "must describe the offense with sufficient
specificity so as to enable the accused to prepare a defense." Id. ¶ 16. The Arizona

Constitution contains a similar right for an accused to "demand the nature and cause of the

accusation against him, to have a copy thereof," and states that "[n]o person shall be prosecuted

criminally in any court of record for felony or misdemeanor, other than by information or

indictment." Ariz. Const. art. II, §§ 24, 30. ¶ 9 Sanders, 205 Ariz. 208, n. 2, 68 P.3d at 441 n.

FIRST VIOLATION OF DEFENDANT’S CONSTITUTIONAL RIGHTS


The appellate court also acknowledges the state substituted 13-2904(A)(1) The court also

acknowledge defendant made multiple attempts to point out the defective complaint and

violations of statutes and rules in making the substitution, but all attempts were unsuccessful. The

appellate court erroneously claims the defendant is incorrect that the technical defect constituted

a fatal flaw int the state’s case. The following case law below, supports fatal flaw in state’ case:

The STATE of Arizona, Appellee v. Enis John CHERAMIE, III, Appellant. No. 2 CA-CR

2006-0319. Court of Appeals of Arizona, Division 2, Department B. November 30, 2007.

U.S. Const. amend. VI. This means......." Ariz. Const. art. II, §§ 24, 30. ¶ 9 Sanders, 205 Ariz.

208, n. 2, 68 P.3d at 441 n. 2. However, the substitution of an offense that includes elements

that differ from those of the offense actually charged violates both the fundamental Sixth

Amendment right to notice, id. ¶ 20, and Arizona's "constitutional guarantees that an accused

stand trial with clear notice of the crime with which he is charged." State v. Martin, 139 Ariz.

PAGE 3 of 4
466, 471, 679 P.2d 489, 494 (1984); see State v. Riveram , 207 Ariz.69, ¶ 8, 83 P.3d 69, 72

(App.2004) (right to notice under Arizona Constitution equivalent to Sixth Amendment right).

219 P.3d 1039 STATE of Arizona, Appellee v. Mark Allen FREENEY, Appellant.

No.CR-08-0363-PR. Supreme Court of Arizona, EnBanc.December 4, 2009. ¶ 16 When the

elements of one offense materially differ from those of another—even if the two are defined

in subsections of the same statute—they are distinct and of another—even if the two are

defined in subsections of the same statute—they are distinct and separate crimes. E.g.,

State v. Leenhouts, 218 Ariz. 346, 349 ¶ 13, 185 P.3d 132, 135 (2008) ("Because the elements

required to prove a violation of subsection A.1 [of A.R.S. § 13-1302] differ from those

required to prove a violation of subsection A.3, the original and supervening indictments

do not allege the same charge."); State v. Sustaita, 119 Ariz. 583, 591, 583 P.2d 239, 247 (1978).

SECOND VIOLATION OF DEFENDANT’S CONSTITUTIONAL RIGHTS


The appellate court incorrectly states defendant was convicted on 13-2904(A)(1) From the trial

audio, 10:18-24am Judge agrees time not issue, profanity not issue, empathizes regarding order

of protection eviction 20 minutes to pack and get out, regarding intent and knowledge,

defendant’s posture demeanor not intended to be aggressive, but appeared to be to clerks. 10:21-

23am Judge comments that defendant was persistent not acting with intent or knowledge to

disrupt Prosecution did not provide sufficient evidence, per the law of the case, as outlined

during hearing, to convict on the substituted charge ARS13-2904.A.1 as the judge correctly

ruled.


Defendant is convicted on a charge that was never filed with the court legally or illegally.

PAGE 4 of 4
Defendant objected several times during the hearing when the prosecutor repeatedly asked

questions about defendant’s statement; “If I had a gun...”; since., abusive or

offensive language charge, ARS13-2904.A.3, was not on the original complaint and was not

relevant to the substituted ARS13-2904.A.1 charge. It was over ruled. When the judge ruled, he

did not convict on the substituted charge , but on defendant’s use of abusive or offensive

language, which was never charged. 10:18-24am Judge comments KICKER in this case is

the gun statement... The trial court, again, violating defendant’s constitutional rights, to

demand the nature and cause of the accusation against him, to have a copy thereof; thus

prejudicing the defendant in preparation before trial and in lack of time during trial to defend

against a charge that was never filed with the court legally or illegally, ARS13-2904.A.3.

THIRD VIOLATION OF DEFENDANT’S CONSTITUTIONAL RIGHTS

Defendant again respectfully motions the court to vacate judgement for repeated violations of

defendant’s constitutional rights, by both the appellate and trial courts, as detailed above, per

criminal rule 24.2a3.




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