Monday, September 27, 2010

Amendment of indictment was improper (9 27 2010)

Ohio Criminal Rule 7(D) allows the court to amend an indictment at any time "provided no change is made in the name or identity of the crime charged." In a case in Highland County Ohio, a trial judge allowed the State to amend the indictment to charge aggravated trafficking in drugs instead of the trafficking in drugs alleged in the indictment. The Fourth District Court of Appeals held that this was error because "this amendment [to the indictment] changed the name of the offense, and so the amendment is prohibited by Crim.R. 7(D)." State v. Smith, 2010-Ohio-4507.

Contact me if you need a Dayton Criminal Defense Lawyer for your appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form.

Tuesday, September 14, 2010

drugs improperly seized in Shelby County (9 14 10)

A "Terry Frisk" or Terry pat-down search is a limited search for weapons. Sometimes police can do a pat-down search of a suspect for safety reasons. During the pat-down, if an officer feels an object which could be a weapon, the officer can make sure it is not a weapon. If the officer feels an object which is likely not a weapon but which could possibly be some other illegal item, the officer cannot manipulate the item or investigate further. This is because the limited Terry frisk allows a search only for weapons and it does not give police permission to conduct searches in violation of the Fourth Amendment. But if the officer conducts the pat-down and feels something which she immediately knows is contraband – just by feeling it through the clothing – the officer can retrieve it because at that point the officer has probable cause to make a lawful arrest.

In a case out of Shelby County, a police officer was conducting a proper Terry pat-down and he felt an object. It turned out to be drugs in a sock which were hidden in the defendant’s coat. But the prosecutor never presented evidence that the officer conducting the pat-down thought the sock could be a weapon. And the prosecutor never presented evidence that the officer knew immediately that the item he was feeling was contraband. Therefore, the Third District Court of Appeals ruled that the defendant’s motion to suppress should have been granted. State v. Olding, 2010-Ohio-4171.


Trial judges must apply the law as written (9 14 2010)

A defendant pleaded "no contest" to a fourth degree misdemeanor charge of reckless operation of a vehicle. The trial judge suspended his driver’s license for five years when the maximum license suspension for a fourth degree misdemeanor is three years. The court of appeals noted that the trial judge had a duty to "apply the law as written" and that a judge’s sentence is void when they try to impose a sentence greater than that allowed by law. The court of appeals reversed and remanded the case. Milan v. Sutherland, 2010 Ohio 4272.

Contact me if you need a Dayton criminal defense lawyer for your appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form.

Sunday, September 12, 2010

"A jack of all trades is a master of none."

Have you ever heard that expression? Would you hire a painter to do your plumbing? Hire a plumber to do your electrical work? Would you hire a probate lawyer for your criminal trial? Hire a criminal lawyer to do your will? Hire a bankruptcy lawyer to handle your divorce? Hire a lawyer that does probate and bankruptcy and divorce and criminal and anything else that comes through the door for your criminal appeal? Maybe you would, but I would not recommend it.

The law is changing and evolving in the area of criminal law as I imagine it is in other areas of law. Even it if it was not changing, there are many things one needs to know about criminal law to be able to adequately represent a criminal defendant at trial or on appeal. That is why I have limited my practice to criminal defense and especially criminal defense appeals.

If you want to hire a "general practitioner" for your appeal even though they have never done an appeal before, good luck. But if you want to hire me click on the "contact me" page of my blog. And if you decide to go with the jack of all trades, keep me in mind for a possible Appellate Rule 26(B) Application if you lose your appeal. You may be able to have your appeal reopened.

Contact me if you need a Dayton Criminal Defense Attorney for your appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form.
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