Post by Harrison Smithmy son was convicted of a non violent misdemeanor,(no dui, no
domestic violence etc), sentenced to 3 years probation (bench
probation), 3 months ago.
Post by Harrison SmithCan he appeal the conviction to a different judge, and have the
probation removed or reduced, and even the misdemeanor reduced to
an infraction or dismissal?
Appeal on what grounds? You generally have to claim that the court
made some kind of legal mistake, and the mistake was serious enough
to have changed the verdict.
You can appeal a conviction, if you're still within the time you're
allowed to do so (90 days is likely too late to start an appeal.
30 days for state, 60 for federal is more typical), and if you've
got grounds to do so. You usually have to appeal to a higher court.
Grounds might include the judge allowing evidence that shouldn't
have been let in because of an illegal search, the judge falling
asleep during the trial, or other improper procedure. Innocence
by itself is not normally sufficient grounds. You can't bring in
new evidence.
Warning: If he appeals, he could end up with a sentence worse than
what he started out with. Don't piss off the judge with appeals
for lame reasons. He could end up with 5 years in solitary
confinement.
Most states allow applying for an early release for probation. This
is based on the discretion of the judge (he's probably stuck with
the same judge). Guidelines include serving at least 1/3 of the
time on probation, and meeting requirements of probation, such as
completing rehab, completing community service, and paying restitution
if ordered. Sex offenses, DUI, and jail felonies are not usually
eligible for early release from probation.
Probably one of the worst things to do is to appeal the conviction
on the grounds that the judge was having sex with the prosecuting
attorney on the bench during the trial, fail, and then apply for
early release from probation the next day. And if that happened,
why did you wait 90 days to appeal?
See also: http://criminal.findlaw.com/criminal-procedure/probation-faq.html
http://criminal.findlaw.com/criminal-procedure/the-appeal-writ-and-habeas-corpus-petition-process.html
I am not a lawyer, and I don't play one on TV. If you seriously intend
to appeal, talk to a lawyer, and *HURRY*.