txparalegalgirl
Junior Member
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
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