You know, when I walk into the courtroom and see that Tom is the prosecutor I should just adopt a policy of just walking back out and calling in sick. The strangest things happen when he's on the other side. However, this time it was actually something in my client's favor.
Background: Client was accused of attempted robbery and use of a firearm in a felony. On the day of trial, prior to the actual hearing on the facts, both co-defendant and I raise a motion to dismiss because the trial has not taken place within the 5 months allowed under Virginia law when a defendant is held in jail. The prosecutor argues that this should have been raised in a written motion pre-trial and is now barred. The judge agrees with the prosecution. Trial proceeds and my client is convicted of both charges.
Wednesday: The sentencing hearing takes place and it doesn't go well. The judge is one who is known for sentencing above the guidelines for anything that involves a a physical threat or attack. Of course, the guidelines already take those factors into account as part of the charge but, as the guidelines are completely discretionary in Virginia, there's not much I can do about that. Client gets three years on each charge for a total of six. It's about a two year departure over the guidelines.
After that's done I stand up and ask the judge to set an appeal bond: "Your Honor, you remember that we had a speedy trial motion prior to trial which you over ruled. As I'm sure you know, the law changed on 01 July so that it is what you believed it to be. However, the trial was prior to that date. Consequently, I feel that there is a solid issue to appeal. I'd hate for my client to spend any more time than he must in jail if the issue is as solid as I believe it to be."
I'm expecting the typical setting of a monstrously huge appeal bond or denial or the more recently popular denial plus "Mr. Lammers, if the appellate court accepts the petition you have the leave of this court to return and ask for a bond."
Then the judge states: "Mr. Lammers, if there's an issue here, we should discuss it in this court."
My head instantly snaps up from the podium to the bench; I'm pretty sure Tom's did over at the prosecutor's table as well. A little surprised, I tell the judge I'll file a motion to rehear within the allotted time. The judge offers not to issue an order in this case and bring us back in a month to reargue the issue. Then he asks Tom what his thoughts are about the matter. Tom was not the attorney at trial and is playing catch-up as the judge and I talk back and forth about arguments which were made on the motion prior to trial. He's not really in a position to do anything but agree to the judge's offer.
So the judge tells me he's not going to rule on my motion for an appeal bond, he's going to treat my motion on that as an oral motion for a rehearing, he's not going to issue the final sentencing order, we need to brief the issue, and that we'll reargue it in 30 days.
Eventually I leave the courtroom with what I'm sure was a look of wonderment on my face. If I can get results like that I need to ask for more appeal bonds.
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