Waived counts?

[Downnotout1313]

What is the name of your state (only U.S. law)? Texas. If 3 counts on an indictment are waived and later the 1 order of guilt is vacated are the 3 counts still waived?

 

[justalayman]

waived?


Define waived.

 

[CavemanLawyer]

You are going to have to be more specific regarding what you mean by waive. I'm guessing you mean that the State dismissed those counts and proceeded on a single count. If that is the case, was this as a part of a plea bargain or did they just proceed on the single count in a trial? Counts on a single indictment are no different than separate indictments. The State is free to dismiss a count and proceed on others without waiving their right to refile those counts a later date (as long as still within the statute of limitations.) If the counts were dismissed as part of a plea bargain however, they could be estopped from refiling... but there are alot of variables.

1) are you positive that these were counts and not paragraphs? Counts charge separate offenses. Paragraphs charge multiple theories of committing the same offense. There is a big difference and the answer to your question will be completely different depending on counts versus paragraphs.

2) Was this a plea bargain or a trial?

3) for what reason was your conviction overturned?

 

[Downnotout1313]

Answer

The deferred adj stated open plea of guilt to count one waive remaining counts. Was on deferred probation for 6 years when advised to seek counsel for a writ since what I plead to was found unconstitutional by texas ap court. This was not a plea bargain but the judge went off of the DA recommendations and all parties agreed to do open plea.

 

[CavemanLawyer]

If you plead guilty in exchange for them dropping the other counts, then yes that is a plea bargain. There is a possible argument that the State would be collaterally estopped from filing the other counts if you can show that you are somehow prejudiced now based on your reliance on the plea bargain. Maybe some evidence necessary to your defense is gone now since the case was disposed of etc.... Its very fact specific.

But if the other counts are still based on valid law and you don't have an argument for estoppel, and the State still has the evidence they need to prosecute... you could absolutely be recharged on those other counts.

I am pretty sure I know what statute you are talking about that was overturned and, if I'm guessing right, the statute was only only partially overturned and you can still be prosecuted under part of it. If the other counts rely on the section of the statute that is still valid then the State may not just let this go.

 

[Downnotout1313]

Even if they waived the counts in 2009 and it is now 2015?

 

[Downnotout1313]

Wouldn't that surpass the statute of limitations?

 

[CavemanLawyer]

If the statute of limitations has run then no they can't file. I'd have to know what statute these other counts relied on to know whether the statute of limitations has run or not.