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Tug_Kitten

Filing a Declaration in Support of Request to Recall Sentence

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My husband was just recently sentenced on several cases he had in California and signed a plea agreement with a final prison sentence of 8 years 4 months with half time eligibility to complete 4 years 2 months.  He was incarcerated in the prison before, but has been out of the system for quite awhile (completed parole, etc).  He has now been sent to prison and because of prior classifications he had they are reviewing his file and may send him back to a segregated status and he would therefore not get the half time he is entitled to under his plea agreement.  He sent me a Declaration in Support of Request to Recall Sentence (Penal Code 1170 (d)) with supporting cases to request that the court re-sentence him to the half time he was given at 100%. I have tried to contact his lawyers for help with this, but they haven't been any help. One of them told me they don't think it is legal, which I don't understand as it is on a legal document with supporting cases. Can someone please give me some advice as to how to file this?

Thank you.

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Being on legal paper doesn't mean that the motion is a legal motion.  Under the statute, the court has the power under its own motion to recall a sentence within 120 of imposing it OR if the case is referred back to the court by the BOP.  How he is housed has no bearing on good time/work time credits.  IF it hasn't been over 120-days since his sentencing, he is free to send a letter to the judge asking them to recall the sentence.  No guarantees though especially since his request is based upon something that might happen vs. something that has. 

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GuessAgain,

 

Thank you for your response, I appreciate any help I can get.  Couple of questions/additional info...What is the BOP?  Also, it has not been 120 days and I'm guessing maybe I was incorrect in stating it was a legal document, maybe what he sent me is the letter you referred to.  The cover page he sent looks "legal" as it a copy of a typed "form" .  I'm not sure what you mean by "How he is housed has no bearing on good time/work time credits".  If he is segregated as in the past, he will not be able to get the half time, will not be able to get good time/work time credits and will have to do approximately 85% of his time. Also, are you saying that we should not file this without knowing if this will actually be the case? Most likely it will be beyond the 120 days if we wait for that.

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There's no "we" here, first off, and your husband shouldn't be involving you like this (it's not as though you can represent him) v. pestering his lawyers about it (and if he doesn't like their answer, seeking new counsel).  Husband is clearly expecting you to do more than simply handle mailing/filing (which he can do on his own) of a declaration in support of ... what ... a petition that evidently hasn't even been prepared.

 

I think what GuessAgain means is that the mechanism in the statute you mention is for the judge on his/her own motion within 120 days or the parole board at any time ... and this doesn't seem to be situation where your husband was sentenced to life without possibility of parole and under 18 at the time he committed the crime, etc., in which case under that particular statute, the defendant's free to submit a petition for recall and resentencing.

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Fallen,

 

I have to say I was a little offended by your reply.  I don't know if you're married or not, but a marriage is a partnership and I don't feel my husband is asking too much of me to help him get this request filed and it's not about me or him it is "we". It's something we've never dealt with before and I just want to be sure for both of us that it's done correctly since what happens to him affects both of us. As for his lawyer (and we aren't seeking new counsel "because he doesn't like their answer"), I don't feel I was "pestering" him, I simply asked for his assistance/guidance in the matter, but he has shown his arrogance after getting his money and making his deal that he doesn't have time to further help us.  I don't know the legal system all that well and I'm just trying to learn. All I wanted here was to see if anyone has dealt with this sort of situation or knows these procedures and could maybe point me in the right direction.  I really didn't expect anyone to be mean.

:(

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The emotional lens is best avoided in this medium.  You cannot represent your husband, and this has nothing to do with being married.  (I'd say the same thing to siblings or parents.) 

If it were a matter of simply filing it (meaning taking it to a courthouse and putting it in the clerk's hands), that would be one thing.  I wasn't referring to you pestering the lawyers, but that your husband ought to pester them instead of involving you.  You're misinterpreting. 

If a lawyer in fact said he didn't have time to help, then you talk with a different lawyer.  If that person or anyone else dances around the simple topic of expecting to be paid for time spent addressing X, they shouldn't.  Demand that they be direct.

"I really didn't expect anyone to be mean."

Mistaking matter of fact directness for meanness is a common problem in the electronic medium.

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He can mail his letter to the judge directly from prison rather than have you do anything with it.  He can mark the outside of the envelope as legal mail and the judge will get it.  The reality is that the judge isn't going to do anything.  There was an agreed sentence and that's what he imposed.  If the prison does put him in Ad Seg, there are procedures within the prison system for him to challenge it.  If those challenges reap no results,  he can file a petition for habeas corpus.  Prisoners file those on custody and credit issues all the time.  As an aside, MOST inmates put in Ad Seg at this point in time that aren't temporary for behavior problems, are gang members.  If that's his situation, he need to officially drop out and go through the debriefing before the prison will move him anywhere else.

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Fallen,

I appreciate your explanations and I apologize for being emotional and my misinterpretations.  Really the simple things are what I wanted to know. My interpretation from your statement is that it seems as though this form or letter is not something that I can go to the court and file, is that correct?  Being that what I have seems to be the letter that GuessAgain referred to (a typed cover page with handwritten supporting information and similar cases) I'm wondering if that is okay to file for him? I realize that I cannot be a legal representative for my husband, but that is why I wanted to know if this is something that a lawyer has to file or not. His lawyer did not come right out and say he didn't have time to help, he was just very short in saying my husband or I could file it and he didn't think it was legal.  When I asked for why he thought that he did not respond.  As for my husband talking to the lawyer directly, he does not have access to phones and letters are taking quite a while to get back and forth so it just seemed quicker for me to try to handle it then him wait weeks to get an answer from the lawyer directly to him.

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Your husband can file whatever he likes (under his own name and use you as in effect the courier), but that doesn't make this letter/declaration/what have you a viable or correct vehicle. 

 

"When I asked for why he thought that he did not respond."

Some lawyers are just asses, and some are thinking ahead how they don't want to be on the hook for what constitutes legal advice when they aren't being paid for it and, adding insult to injury later, have someone pointing the finger at them when X doesn't work or Y causes more trouble.  Can't know why he wouldn't respond from here.

Belatedly, I presume by "they" as in "they are reviewing his file", you mean the prison administration.  It isn't even clear that he should be doing anything based on a "may" and possible misinformation about what segregation means to half-time status, when it may be some other aspect of his criminal record that means he might be or even is in fact ineligible for half time, which raises the issue of whether there was possibly an error made by legal counsel in advising him to take a plea (or it may be that he was stuck taking it because he'd have been hammered worse based on the evidence if he didn't).

 

I'd suggest to your husband that whomever told him this is the proper vehicle/route to address his issue re-think it or explain in simple terms why (s)he/they think(s) it is. 

 

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=01001-02000&file=1170-1170.9

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