Misrepresentation of plea offer? Concurrent vs. consecutive...?

My fiance's public defender came to see him last night (the night before his preliminary hearing here in California), and said that in exchange a "nolo" plea, the DA's office was willing to offer an 8-month sentence run CONCURRENTLY with the sentence he is already serving. A pretty good deal, seeing as the charges could carry up to 3 years in state prison.

This morning at the prelim, after my fiance entered the "nolo" plea the public defender was informing the judge that an the agreement had been reached with the DA's office as to a recommended sentence, but this time he stated "an 8-month sentence run CONSECUTIVELY."

My fiance tried to alert his attorney to the mistake immediately after it happened, but having the "awesome" people skills possessed by some PD's, the lawyer paid him no attention and the recommendation was entered into record as spoken in court.

At this point I do not know which type of term was stated in the plea agreement form, nor whether the slip-up was intentional (I would like to think it was not, but I'm not this guy's biggest fan...) or if he simply misspoke, but if it proves to be an intentional "inconsistency," what I would like to know is:

Would/could this be considered material misrepresentation of the plea agreement by the PD either to his client (my fiance) or to the court? If so, what remedies are available to my fiance to correct the mistake?

Would such intent also support a claim of incompetent council, or even legal malpractice?

The sentencing hearing was scheduled for 4 weeks out, so that (I am guessing) would be my fiance's final opportunity to (literally) set the record straight. Any help would be GREATLY appreciated!

6 Answers

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  • John S
    Lv 7
    1 decade ago
    Best Answer

    Unless he was charged with an attempt to commit some minor offense, the only way that there could be an 8 month prison sentence in California would be if it was a consecutive sentence. Consecutive sentences are imposed as 1/3 the mid-term for the crime. Since the maximum sentence is 3 years, it is certain that the mid-term is 2 years, and 8 months is 1/3 of that. I think it pretty clear that the plea bargain was for a consecutive sentence. Your friend may have misunderstood, but I think that the attorney correctly stated the agreement he had reached.

    Oddly, in California a consecutive sentence can be the better deal. For example, a defendant has a three year prison term, and has served a year of it. If he gets a concurrent 3-year term on another matter, he will do another year after he completes the first term. If he gets a consecutive 8-month term, he will do only 8 months.

    There is no benefit, however, to a "nolo" plea. The only use that such a plea has is that a "nolo" plea to a misdemeanor cannot be used as an admission in a civil case. Since this is a felony case, there is no such benefit, even if there is some civil liability in the matter. However, if other charges are being dismissed in exchange for his plea, that could still be a reasonable bargain.

    Source(s): 30+ years as a criminal defense attorney
  • 1 decade ago

    First, find out from the PD what the deal really is. This can be had with a phone call. Next, call the court clerk, and find out what the court file indicates. This may take some doing. The critical version is whatever the court file says. If it does not comport with your fiance's understanding, tell him to 1) ask the judge at sentencing if he may ask a question of the court, and 2) make his understanding plain - on the record. Usually, a judge will ask if the defendant has anything to say before sentence is passed. Don't let this moment slip away. Good luck.

    Source(s): a lawyer
  • 1 decade ago

    Typically the plea agreement has been prepared in written form and is usually signed by the Judge during the hearing. If there is a conflict between the record of the court and the written agreement it can be easily straightened out. Also be aware that a Judge does not have to accept a plea agreement; although they usually do. The "nolo" plea is the same as pleading guilty without accepting civil liability that may be attached to the crime.

  • 1 decade ago

    Concurrently means that time served is applied and consecutively means it is added on. The ruling will go in to the books as read at the hearing. The only course of action you have is to go through the public defender. The public defender is also friends with the DA's office as they see the all the time so do not approach the situation with an attitude. THe public defenders goal is to get you off his plate as is the DA's. THese are lawyers so you will need another lawyer to win out so do not upset the guy. Just go back to them and nicely explain that you will never give up on this until it is remedied and that you will call him each and every day for the rest of his life until is is remedied. You can get this out nicely if you prepare yourself. It may have been an oversightand may not have been I could not answer that but you need to stay on it if you want results. Just remember the expression more bees with honey.

    Source(s): Sheila C is most correct with stating the agreement must have been prepared and signed by your fiance'. So refer to that agreement and hold on to your copy. if you signed an agreement that stated consecutively then that ship has sailed unfortunately.
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  • 4 years ago

    Concurrent means at the same time. Two life sentences server concurrently means the same thing, as far as time served. Consecutive means one after the other or, once one life sentence is served, the next one begins. This is done lets say on a double murder and the judge make the sentence consecutive to insure that they will never get out of jail on parole.

  • Anonymous
    1 decade ago

    Boy that is going to be an awesome wedding, mullets and tattoos as far as the eye can see. All the PBR you can drink and spam you can eat.

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