Bad guy was indicted for attempted sexual assault of a child. Jury found him guilty, COA granted a new trial. (Bjorgaard v State 220 SW3d 555) The evidence at trial would support a charge of indecency with a child. I want to re-indict him to add indecency with a child. CCP Art 44.29 says I stand as if the trial court had granted a new trial. Is there anything to prevent me from re-indicting and dissmissing the original case?
Thanks David. Hernandez deals with SOL which is not an issue in my case. I just want to be sure that since the COA remanded the case that I am not precluded from dissmissing it and refilling a new indictment. I can find no reason why I can't but am unsure. Is there not a provision somewhere that says that I cannot seek a greater sentence than was handed down in the first trial?
The objection is going to be prosecutorial vindictiveness:
To punish a person because he has done what the law plainly allows him to do is a due process violation ‘of the most basic sort.’ ” United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (citing Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)). Thus, a prosecutor may not increase the charge against a defendant solely as a penalty for invoking a right, such as pursuing an appeal. See, e.g., United States v. Krezdorn, 718 F.2d 1360, 1362-65 (5th Cir.1983) (en banc). The defendant has the burden of proving, by a preponderance of the evidence, prosecutorial vindictiveness. Id. at 1365. In general, there are two ways in which a defendant can prove a claim of vindictiveness. First, a defendant may prove actual vindictiveness by presenting objective evidence that the prosecutor's actions were designed to punish a defendant for asserting his legal rights. See Goodwin, 457 U.S. at 384 & n. 19, 102 S.Ct. 2485; Johnson, 91 F.3d at 698. Second, in certain circumstances, a defendant may show sufficient facts to give rise to a presumption of vindictiveness. Goodwin, 457 U.S. at 374, 102 S.Ct. 2485; Krezdorn, 718 F.2d at 1365. * * * There is no presumption of vindictiveness if in the context of the entire proceedings “any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the prosecutor's decision ... was motivated by some purpose other than a vindictive desire to deter or punish appeals.” Even if a defendant establishes a realistic likelihood of vindictiveness, however, the government still has an opportunity to proffer legitimate, objective reasons for its conduct. U.S. v. Saltzman, --- F.3d ----, 2008 WL 2807475 (5th Cir. July 22, 2008)
Are you moving from a 3rd degree felony to a second degree?
Posts: 527 | Location: Fort Worth, Texas, | Registered: May 23, 2001
You will end up having to explain why the "greater" offense was not initially charged (i.e., something objective and unrelated to the exercise of the right to appeal). E.g., Hood, 185 S.W.3d at 448-9. But, the full range of punishment should then apply on the new trial, without regard to the result in the prior case.
