When you hire an attorney to represent you in a criminal case, you are placing your life in their hands, sometimes literally. But what happens when your attorney fumbles that ball and, through a series of preventable mistakes, causes you to lose your case and subsequent appeals? Is all hope lost? Are you doomed to a life behind bars because your lawyer was ill-equipped to handle your case?
Thankfully, no you are not. Thanks to Post Conviction Relief, or PCR, New Jersey defendants have the ability to challenge a conviction on the grounds that their original attorney did not adhere to the State of New Jersey and United States Constitutional rights to competent counsel. These errors must have occurred at trial or in a pre-trial motion to be considered.
In order to apply for a PCR motion, you must allege any of the following criteria:
- The court did not have the jurisdiction to sentence you
- You were the victim of a significant denial of a constitutional right such as:
- Misconduct on the part of the prosecution or jury
- Your attorney failed to advise you of any conflict of interest
- Your attorney made large scale errors which resulted in your sentencing
- You sentence violated the law under which it was imposed
When trying to obtain a PCR motion in the Garden State, you first have to raise a motion before the same judge that presided over your case the first time and rendered sentencing. Oftentimes, the same prosecutor who represented the state during your initial case will return once more as well.
First you need to establish that your original attorney made mistakes. Then the judge will hold a series of evidentiary hearings. At these proceedings, your previous lawyer and other witnesses will testify before the judge as to what happened while trying your case. At this point, you need to prove that not only did your former attorney make a mistake, but it was so egregious that it constituted a level of negligence unmatched by any reasonable attorney. If this occurs, the judge will grand a petition for Post Conviction Relief.
At that time, your case is put back onto the trial list. While it’s rare that cases are dismissed in this manner, PCR’s have been known to help individuals who were the victims of poor legal defense obtain a more beneficial plea.
It’s important to note that a PCR is not an appeal. Typically you must first file for an appeal within 45 days of conviction. If appeals fail, then you can take the next step towards a PCR motion. You can apply for a PCR within five years of the initial conviction.
If you believe that you have been wrongly convicted due to the mistakes of a former attorney, the law office of Marc A. Futterweit is here to assist. Contact us to see if we can aid in your quest for a PCR. We will see you through the process from evidentiary hearings all the way through to the end. For a consultation, call 973.442.0200 or visit us online.