Nunc pro tunc on 1993 1st Off DWI class A?

[txparalegalgirl]

What is the name of your state? TX

I just recently found out that my 1993 1st offense DWI (non-jury, 2 yr probation, $200 fine, dwi class, no community svc, no jail time) is on the books as a CLASS A. No priors, no enhancements, nada. This should have been a Class B all day long. I was attempting to obtain a professional license through the state, and it was found under my birth last name (legally changed later to stepfather's name) but it can not be located under my TDL or SSN. (big benefit to me all these years for all job applications I indavertenly gave false info) but not so good for me now. I could lose my paralegal license too (which was obtained 2 yrs after DWI)

First step I was going to attempt to have the clerk change the entry to Class B. Then....
I got certified copies of all the court records. There are many, many defects and an atty friend of mine (I'm a litigation paralegal) indicated that the "plea is invalid on its face" and I should be able to have it voided at the county level. 1993 was a yr of big changes in the vernon's 67011 and penal code 49.04 Here are the facts, based on my review of the certified copies of court/police documents...

1 - My atty at the time incorrectly filled out the plea by writing 2 years instead of 180 days for maximum confinement time;

2 - The district atty did not sign the jury waiver or consent to plea.

3 - The judge did not date the plea or accept plea choice (multiple choice selection on plea form.

4 - The complaint is not dated by signature of the officer at the notary stamp (notary invalid?);

5 - The charge information is not signed/dated/approved or denied by cop (or me), this is the certified copy from court;

6 - The cop put the wrong NCIC Code 5404 06 on the complaint and capias (this was for 3rd or more DWI) should have been 5404 00 for 1st offense DWI, no enhancements;

7 - The capias says that my bond was posted on 1-14-93, it was posted on 1-11-93. (I was arrested at like 3'ish in the morning and I was there for 19 hours. My bond was ready (friend) at 9am, even if they didn't post it until I was released, the date was still 1-11-93)

8 - The capias is clerk filestamped twice - Feb 06 1993 and Feb 24, 1993;

9 - Arrested 1/11/93 arraignment 1/19/93 (more than 7 days) doesn't it have to be within 72 hours? or atleast 7 days?

10 - The clerk file jacket indicated JAIL on 1-19-93 instead of bond. I never went back to jail;

11 - I specifically remembered pleading nolo, but it is changed to guilty on file jacket.

12 -

However, at this point it may be more prudent to attempt to void the conviction if possible, as the judgment (or plea?) appears to be "invalid/illegal on its face" instead of having them correct the Class A to Class B.

My ideas thus far are.... nunc pro tunc, mtn for arrest of judgment, mtn for reconsideration, mtn for facts and conclusions....

ANY OTHER IDEAS?

THANKS

 

[seniorjudge]

...There are many, many defects and an atty friend of mine (I'm a litigation paralegal) indicated that the "plea is invalid on its face" and I should be able to have it voided at the county level....

You need to find a lawyer who will give you correct legal advice.

Your time for appealing (if you ever could since you pled) this has long since passed.

 

[txparalegalgirl]

Now now Mr/Mrs. Seniorjudge, there's no need to be snotty. This is my first post, and I put a lot of effort into making my post clear.

I didn't mention the word "appeal" since I'm well aware of the fact that time has expired for an appeal.

However, my "friend" - who happens to be a prominent board certified criminal lawyer with over 35 yrs in Harris County - suggested there are alternatives based on the OBVIOUS clerical errors in the capias, information/charge, plea and judgment, not to mention them using an offense code that not in use at the time of the "conduct that created the offense". Simply put, I could just present a motion to the judge to request that it be changed to a Class B (max punishment the statute provides) or I can try for something more, such as a nunc pro tunc, etc. I'm not sure where St Odo of Cluny Parish is located, but if it's Louisiana, then obviously you may be referring to my rights under the napoleanic code instead of english law, which all other 49 states use. In Texas, there are cases and statutes that are on point directly with my situation.

But thank you for your candor.

Does anyone else have any thoughts/comments/suggestions?

 

[seniorjudge]

If you think you can make a collateral attack on the judgment, please, be my guest.

I was not snotty.

 

[julianna]

I need to just make a statement about this whiner....

$200 fine, no jail time, slap on the wrist... hmmmm horrible - just horrible! And now it's on your record forever... as it should be... as anyone who commits a crime and is found guilty should be...it's the penalty for breaking the law... anyone who does, has to deal with those consequences...

My boyfriend also was convicted of a DWI recently from back in 2005 - and this was his first, and they gave him 4 weekends in jail for it, $1100 in fines and penalties, and 3 years probation... And you know what? He is now advocating that everyone, EVERYONE who gets arrested for DWI should have to spend at least 1 weekend in solitary confinement as he was... it opened his eyes, and made him think --- he stopped drinking (not because he had to, but because he wanted to).... he's not whining... he's grateful because {as I'm sure the case is with you too} this was not his first time DRIVING drunk, but his first time getting caught! If they slapped his wrist and sent him on his way, maybe he would have killed someone or himself...

Stop being a baby... you took a chance, got caught, got off soooo easy... and the only thing left is a record... that's life.... If you don't want a record... don't commit any crimes... (oh and by the way... a B-misdemeanor will ALSO show up on any SS check any employer would run) ANY conviction of anything other than a traffic violation...

Wipe your tears and move on....

 

[txparalegalgirl]

This will be my last post. It's unfortunate that the "whiners" are the people who we as the public are attempting get advice from. This site is a joke!

First, I'm not whining.

Second, I was punished above what the statute allows. Vernon's 67011-1(c) was the statute citation. I just want to be put back where I should be.

AND BY THE WAY, my punishment was harsh enough for a 1st offense DWI (with my particular circumstances and points) and I'm not complaining. I paid my dues. (2 yr probation, $200 fine, 12 hours DWI education)

The DA screwed up. Too bad. I plan on pursuing this with a real lawyer, not some joke that hides behind a free advice column. And in the process, if I can get the conviction overturned, because of their failure to follow the laws, why not? And if you would have read my post in its entirety, I was looking for LEGAL ADVICE not an emotional outburst from some chick in NY who knows jack squat about texas law in 1993, and who is obviously bitter because her 'boyfriend' got in trouble. waa waa!

I know that I will run into issues with a Class B still, but nothing like the stigma and collateral effects of a Class A.

 

[outonbail]

This will be my last post. It's unfortunate that the "whiners" are the people who we as the public are attempting get advice from. This site is a joke!

Well I'll tell you what, you apparently have more experience and knowledge of how the wheels of justice turn than the average bear. You also mention having friends who practice law and according to you're post, are very good and efficient at what they do.

I also see you as being a motivated person who is making every effort to align all her ducks in a row as best as you can, so that you're as prepared for the unexpected legal hurdles you might be facing, as you can be. You also seem to have a valid reason for this pursuit of justice, or at least for reaching you're goal of setting the record straight.

Hence, I was hoping you would be kind enough to retract you're statement which claims this will be you're last post. I know this asking allot but I have a fairly good reason for asking this of you.

You see, there are many people who come here with similar situations as that which you're currently facing. They too have questions and seek advice on how they can in effect, turn back time and make corrections to erroneous mistakes and false information appearing in their record, so these errors don't continue to close the doors of opportunity on them time and time again.

Unfortunately, these situations are quite involved and not something many people have experience with, nor the good fortune of actually accomplishing the task they set out to accomplish. There's more advice offered here on how to proceed with a case before it reaches the point of sentencing and becomes a record carved in stone, whether correct or not. Sort of like preventative maintenance will help avoid the situation and usually provide better results than taking action after the damage has arrived.

So, if you are able to do what it is you're setting out to do, please post back with the details of how much you were able to accomplish and what struggles you may have had to overcome in actually realizing you're goal.

Then when other people come here with a similar situation, there is some first hand information available from someone who has been there and done that, which will help guide them, or at least let them know what they're in for and if the efforts and expenses they will be facing, can actually provide any positive results.

Doing this will certainly help others who come here looking for advice and of course, maintain a status that is above "a Joke".

 

[txparalegalgirl]

Well I'll tell you what, you apparently have more experience and knowledge of how the wheels of justice turn than the average bear. You also mention having friends who practice law and according to you're post, are very good and efficient at what they do.

I also see you as being a motivated person who is making every effort to align all her ducks in a row as best as you can, so that you're as prepared for the unexpected legal hurdles you might be facing, as you can be. You also seem to have a valid reason for this pursuit of justice, or at least for reaching you're goal of setting the record straight.

Hence, I was hoping you would be kind enough to retract you're statement which claims this will be you're last post. I know this asking allot but I have a fairly good reason for asking this of you.

You see, there are many people who come here with similar situations as that which you're currently facing. They too have questions and seek advice on how they can in effect, turn back time and make corrections to erroneous mistakes and false information appearing in their record, so these errors don't continue to close the doors of opportunity on them time and time again.

Unfortunately, these situations are quite involved and not something many people have experience with, nor the good fortune of actually accomplishing the task they set out to accomplish. There's more advice offered here on how to proceed with a case before it reaches the point of sentencing and becomes a record carved in stone, whether correct or not. Sort of like preventative maintenance will help avoid the situation and usually provide better results than taking action after the damage has arrived.

So, if you are able to do what it is you're setting out to do, please post back with the details of how much you were able to accomplish and what struggles you may have had to overcome in actually realizing you're goal.

Then when other people come here with a similar situation, there is some first hand information available from someone who has been there and done that, which will help guide them, or at least let them know what they're in for and if the efforts and expenses they will be facing, can actually provide any positive results.

Doing this will certainly help others who come here looking for advice and of course, maintain a status that is above "a Joke".

Well, I must say that I was certainly, pleasantly surprised to receive a post that didn't cause me to flinch.

Thank you for your intelligence and insight, outonbail.

An interesting note, there were apparently a flood of cases in 1994-1995 in Harris County (houston) Texas whereby Defendants were overturning their convictions because the asst district attys were not using the correct jury waiver language and/or forms. The Court rectified that, but they had to let a bunch of criminals go. I just want my "clerical errors" to be rectified. But if that doesn't work, then I will fight to overturn conviction, since I was only made aware of the 'defect' last week. Again, this conviction is not on my record under my drivers license or social sec. # - that's why for 12 yrs I never knew. It an only be found under my last name and bday (when searching JIMS and DPS).

My facts are pretty straightforward, the most of important of which is that I "JUST FOUND OUT LAST WEEK" that my 1st offense DWI conviction was entered as a Class A (which has stiffer punishments and longterm effects) incorrectly starting with the cop who put the NCIC code on the charge information as 5404006 instead of 5404001 (Class B, 1st offense no priors). (006 being a 3rd strike DWI w/SBI) Also, there is the issue that the indictment does not charge an actual statutory offense and now I_m not even sure if the county court had jurisidiction (may be district court) over a 3rd offense DWI w/SBI (which is the 'code' they used on my charge).

So... there are protections allowed me by the texas constitution, federal law, state law and local law. I am just trying to figure out which one I should focus my energies on.

*** Newest find is filing a Writ of Error Coram Nobis ***
Then of course - to repeat myself for benefit of future readers - there is a Nunc Pro Tunc remedy....

(see this link for other advice re: coram nobis)
https://forum.freeadvice.com/showthread.php?t=76736


I have several crim attys reviewing the facts and docs in my case, so I will keep you posted.

"There is no crueler tyranny than that which is exercised under cover of law, and with the colors of justice ..."

- U.S. v. Jannotti, 673 F.2d 578, 614 (3d Cir. 1982)

 

[seniorjudge]

...
I have several crim attys reviewing the facts and docs in my case, so I will keep you posted.
....

If you really are a paralegal, tell me what in that sentence would make me doubt that it is true.

 

[txparalegalgirl]

If you really are a paralegal, tell me what in that sentence would make me doubt that it is true.

Wow, you must not have much to do but slam people. Just leave this post alone if you have a problem with it. I'm not asking for your advice.

But then again, you have posted over 17,408 times since Aug 2005 - THAT'S ON AVERAGE 24.87 TIMES PER DAY. If you are a REAL Judge, can you tell me what's wrong with that???? TAX DOLLARS that's what!

Incidentally, I can have as many attorneys as I want reveiw my file, until I hire one, there is no problem with getting more than one opinion. If you are referring to any grammar, well I, unlike some other people here, actually have a life with more to do than worry about posting perfect grammar and english here.

But then I guess there is not much going on in St Cluny of Odo these days.... so maybe your posts are a fine example of what goes on when people have ill intentions towards others... I really hope that you are not a real judge, you are so biased....

 

[Curt581]

Wow, you must not have much to do but slam people. Just leave this post alone if you have a problem with it. I'm not asking for your advice.

Translation: "Give me the answer I want to hear".

If you're not here for advice, what are you here for?

Someone to agree with you?

But then again, you have posted over 17,408 times since Aug 2005 - THAT'S ON AVERAGE 24.87 TIMES PER DAY. If you are a REAL Judge, can you tell me what's wrong with that???? TAX DOLLARS that's what!

Think he might be retired?

Besides... what's it to you how many times he's posted? Even if he is still on the bench, what do you care what he does with his free time?

Seniorjudge is one of the most (if not THE most) insightful and respected members of this forum. Like E.F. Hutton, when he talks, people should listen.

 

[txparalegalgirl]

Translation: "Give me the answer I want to hear".

If you're not here for advice, what are you here for? SOMEONE BESIDES HIM TO CHIME IN

Someone to agree with you? NO, REAL ADVICE NOT THROWING STONES. SO IF YOU DON'T KNOW AN ANSWER - DO YOU JUST SAY MEAN THINGS? I BET YOU WERE THAT KID IN HIGH SCHOOL WITH NO FRIENDS.

Think he might be retired? NO PROBABLY OUT OF WORK SINCE HURRICANE KATRINA (AUG 2005) OR JUST NOT WORKING VERY HARD TO GO THROUGH THE HUUUUGE BACKLOG OF CASES. THERE SHOULD BE NO FREE TIME, JUDICIALLY SPEAKING OF COURSE.

Besides... what's it to you how many times he's posted? Even if he is still on the bench, what do you care what he does with his free time? FREE TIME? OKAY EINSTEIN, DO THE MATH... YOU THINK HE ONLY POSTS AFTER HOURS... PLEAAAAASE**************

Seniorjudge is one of the most (if not THE most) insightful and respected members of this forum. Like E.F. Hutton, when he talks, people should listen.

WOW if THAT'S THE CASE, I FEEL SORRY FOR ALL THE PEOPLE WHO COME HERE THINKING THEY WILL GET HELP, WHEN YOU GUYS ARE JUST WAITING TO JUMP DOWN SOMEONE'S THROAT

IN CASE YOU AND SR JUDGE NEED REFRESHING

LOUISIANA CODE OF JUDICIAL CONDUCT
CANON 1
A Judge Shall Uphold the Integrity and Independence of the Judiciary

CANON 2
A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All Activities
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

CANON 3
A Judge Shall Perform the Duties of Office Impartially and Diligently


CANON 4
Quasi-Judicial Activities
A Judge May Engage in Quasi-Judicial Activities to Improve the Law, the Legal System, and the Administration of Justice


CANON 5
Extra-Judicial Activities
A Judge Shall Regulate Extra-Judicial Activities to Minimize the Risk of Conflict With Judicial Duties


CANON 6
A Judge Shall Accept Compensation or Gifts for Quasi-Judicial and Extra-Judicial Activities
Only Under Restricted Circumstances


CANON 7
A Judge Or Judicial Candidate Shall Refrain From Inappropriate Political Activity​

 

[Curt581]

IN CASE YOU AND SR JUDGE NEED REFRESHING

LOUISIANA CODE OF JUDICIAL CONDUCT

(edited for brevity)

​

Wow. You know how to cut and paste. Good for you.

How do you know he's actually FROM Louisiana?

Instead of making assumptions, you could have done a 10 second search and found this:

"In the novel "A Confederacy of Dunces", author John Kennedy Toole created the fictional "St. Odo of Cluny Parish".

From: http://en.wikipedia.org/wiki/List_of_parishes_in_Louisiana

See, that's your problem. You make assumptions. You've been making assumptions from your first post.

You assumed S.J was being snotty. He wasn't. He was cutting through the B.S. to the basis of your post. He gave you legally correct information. YOU are the one that got snotty.

You're assuming you can somehow get a fourteen year old conviction, based on a No Contest plea no less, vacated. I seriously doubt you'll be successful, but Hey, knock yourself out. You're going to pay huge amounts of money to an attorney to get it done, not do it for free based on information from an Internet message board.

 

[txparalegalgirl]

Wow, good for you - you know how to search. Unlike you, I have actually read that book. I see you too, can cut and paste.

I never wanted my conviction VACATED. I want my clerical errors corrected.
An illegal sentence under Texas is law is voidable. The charge and the information were never "sworn to" etc etc - I don't want to introduce new evidence I only want to ...

you know what NEVER MIND.....

I can afford to pay huge amounts of money, no problem. I am just doing my homework so I don't pay more than I need to.

Wow. You know how to cut and paste. Good for you.

How do you know he's actually FROM Louisiana?

Instead of making assumptions, you could have done a 10 second search and found this:

"In the novel "A Confederacy of Dunces", author John Kennedy Toole created the fictional "St. Odo of Cluny Parish".

From: http://en.wikipedia.org/wiki/List_of_parishes_in_Louisiana

See, that's your problem. You make assumptions. You've been making assumptions from your first post.

You assumed S.J was being snotty. He wasn't. He was cutting through the B.S. to the basis of your post. He gave you legally correct information. YOU are the one that got snotty.

You're assuming you can somehow get a fourteen year old conviction, based on a No Contest plea no less, vacated. I seriously doubt you'll be successful, but Hey, knock yourself out. You're going to pay huge amounts of money to an attorney to get it done, not do it for free based on information from an Internet message board.

 

[txparalegalgirl]

Wow. You know how to cut and paste. Good for you.
How do you know he's actually FROM Louisiana?QUOTE]

OK - I have no problem admitting my mistakes. It appears that I made an *ass-umption* that he was from LA.

I STILL THINK I AM NOT WHINING OR SNOTTY - I HAD VALID QUESTIONS IN MY FIRST POST BEFORE I WAS HIJACKED

It appears SeniorJudge is from St. Louis MO Seniorjudge's Profile, Member since: 2006-02-04 Location: Saint Louis area, MO, Profession: Judge

Code of Judicial Conduct (MO)
http://www.courts.mo.gov/page.asp?id=5322

In addition to being bound by the lawyers' code of professional responsibility, all judges in Missouri are subject to rules that constitute the code of judicial conduct. These rules are intended to ensure that judges will act fairly, impartially and promptly in deciding cases. They govern the conduct of judges on the bench as well as restrict off-the-bench activities that might call the judge's fairness into question. For example, these rules prohibit conflicts of interest and prohibit a judge from communicating with one party to a case without the presence or consent of the other parties. These rules ensure that judges adhere to high ethical standards and avoid even "the appearance of impropriety."

Canon 1 -- A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety - admonishes judges to obey the law, act at all times in a manner that promotes public confidence in judicial independence, integrity and impartiality, and not abuse their office to advance personal or economic interests of themselves or others. www.abanet.org/abanet/media/release/news_release.cfm?releaseid=43

For future reference
http://www.abanet.org/judicialethics/2004_CodeofJudicial_Conduct.pdf