And that is not a "punishment fitting the crime" issue.
How can we fight against a punishment that does not fit the crime?
Asked on
Friday, Sep 07, 2012
My friend went to jail for a probation violation. They did not charge him for evading at the time he was arrested. The judge even asked if they were going to charge him and was told no. He served 30 days and was released at the beginning of August. The day after he was released the DA sent him a letter charging him with evading police. He went to his arraignment and was told they want to violate his probation again and make him serve a year in jail. This is not right! How can we fight this? He should have been charged when they first violated his probation not wait until he's out and make him go back to jail. The punishment does NOT fit the crime! Help!!!
Answers
If this is California, they cannot give him a double VOP for the same conduct [which seems to be the implied tenor of the question], but they can file charges based on evidence collected up to the statute of limitations date. Of course, there would be custody credits issues here, but not substantive crimes issues. www.kennedyforlaw.com
A person can get punished separately for a new offense and for that new offense violating probation. It sounds like he was punished for violating his probation, and they now want to prosecute him for the actual offense. This would be legal, but if they want to re-violate his probation a new probation violation would be double jeopardy.