Contact the Law Office of KENNETH A VERCAMMEN for
Legal Representation
Sometimes a driver who plead guilty to a criminal
or motor vehicle traffic ticket will need to file a motion to vacate their
guilty plea. Sometimes a person pleads guilty without an attorney, then later
receives a license suspension from DMV/MVC. Occasionally, an attorney can
vacate an uncounselled guilty plea where no factual basis was put on the court
tape recording. Our office represents people charged with criminal and
disorderly persons offenses. We provide representation throughout New Jersey.
Criminal charges can cost you. If convicted, you can face jail, high fines,
Probation over 18 months and other penalties. Don't give up! Our Law Office can
provide experienced attorney representation for traffic and criminal offenses.
Our website njlaws.com provides information on criminal offenses we can be
retained to represent people.
If the matter is a criminal charge, the court is
required to: 1. first addressing the defendant personally and determining by
inquiry of the defendant and, in the court's discretion, of others, 2. that the
plea is made voluntarily with understanding of the nature of the charge 3. the
consequences of the plea
The following is a portion of a legal motion and
brief we filed with a municipal court to vacate a guilty plea and obtain a more
favorable plea:
Please accept this Letter Brief in Support of
Motion to Vacate Guilty Plea and Return to Trial Calendar. My client was
charged with a minor motor vehicle violation. My client never appeared in court
and, without the benefit of counsel, mailed in a check to pay the fine. My
client was not aware he would suffer points and surcharges and a possible
suspension. We request the court vacate the paid fine by mail, and restore this
case to the court calendar. Please let both my office and the defendant know if
this Motion has been granted. It would have been impossible for the court to
take a factual basis for a guilty plea as required by Rule 7:6-2.
Under Court Rule 7:6-2. Pleas, Plea Agreements
(a) Pleas Allowed, Guilty Plea. (1) General. A
defendant may plead not guilty or guilty, but the court may, in its discretion,
refuse to accept a guilty plea. The court shall not, however, accept a guilty
plea without 1. first addressing the defendant personally and determining by
inquiry of the defendant and, in the court's discretion, of others, 2. that the
plea is made voluntarily with understanding of the nature of the charge 3. the
consequences of the plea 4. that there is a factual basis for the plea
My client advises me that he did not understand the
nature of the charge, the consequences of the plea, nor a factual basis.
Rule 7:10-2. Post-Conviction Relief
(a) Petition for Relief. A person convicted of an
offense may, pursuant to this rule, file with the municipal court administrator
of the municipality in which the conviction took place, a petition for
post-conviction relief captioned in the action in which the conviction was
entered. If the municipal matter is a criminal charge, the court is required to:
1. first address the defendant personally and determine by inquiry of the
defendant and, in the court's discretion, of others, 2. that the plea is made
voluntarily with understanding of the nature of the charge 3. the consequences
of the plea
(b) Limitations and Exclusiveness.
(2) A petition based on any other grounds shall not
be accepted for filing more than five years after entry of the judgment of
conviction or imposition of the sentence sought to be attacked, unless it
alleges facts showing that the delay in filing was due to defendant's excusable
neglect.
(c) Grounds. A petition for post-conviction relief
is cognizable if based on any of the following grounds:
(1) substantial denial in the conviction
proceedings of defendant's rights under the Constitution of the United States
or the Constitution or laws of New Jersey; ... (4) any grounds previously
available as a basis for collateral attack on a conviction by habeas corpus or
any other common law or statutory remedy.
(d) Bar of Grounds Not Raised in Prior Proceedings;
Exceptions.
(1) The defendant is barred from asserting in a
proceeding under this rule any grounds for relief not raised in a prior
proceeding under this rule, or in the proceedings resulting in the conviction,
or in a post conviction proceeding brought and decided prior to the adoption of
R 3:224, or in any appeal taken in any of those proceedings, unless the court
on motion or at the hearings finds that: (A) the grounds for relief not
previously asserted could not reasonably have been raised in any prior
proceeding; (B) enforcement of the bar would result in fundamental injustice;
or (C) denial of relief would be contrary to the Constitution of the United
States or of New Jersey.
We will the court grant the motion to Vacate Guilty
Plea and Return to Trial Calendar. In addition, under Rule 3:9-2 and the legal
commentary set forth in NJ Practice, Vol. 31, Sec 415, this motion should be
granted.
The following are portions of the Superior Court
Rules regarding post conviction Motions:
3:22-1. Petition for Relief
Any person convicted of a crime may, pursuant to
this rule, file with the county clerk of the county in which the conviction
took place a petition for post-conviction relief captioned in the action in
which the conviction was entered.
3:22-2. Grounds
A petition for post-conviction relief is cognizable
if based upon any of the following grounds:
(a) Substantial denial in the conviction
proceedings of defendant's rights under the Constitution of the United States
or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the
judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or
otherwise not in accordance with the sentence authorized by law.
(d) Any ground heretofore available as a basis for
collateral attack upon a conviction by habeas corpus or any other common-law or
statutory remedy.
3:22-3. Exclusiveness of Remedy; Not Substitute for
Appeal or Motion
Except as otherwise required by the Constitution of
New Jersey, a petition pursuant to this rule is the exclusive means of
challenging a judgment rendered upon conviction of a crime. It is not, however,
a substitute for appeal from conviction or for motion incident to the
proceedings in the trial court, and may not be filed while such appellate
review or motion is available.
3:22-4. Bar of Grounds Not Raised in Prior
Proceedings; Exceptions
Any ground for relief not raised in a prior
proceeding under this rule, or in the proceedings resulting in the conviction,
or in a post-conviction proceeding brought and decided prior to the adoption of
this rule, or in any appeal taken in any such proceedings is barred from
assertion in a proceeding under this rule unless the court on motion or at the
hearing finds (a) that the ground for relief not previously asserted could not
reasonably have been raised in any prior proceeding; or (b) that enforcement of
the bar would result in fundamental injustice; or (c) that denial of relief
would be contrary to the Constitution of the United States or the State of New
Jersey.
3:22-5. Bar of Ground Expressly Adjudicated
A prior adjudication upon the merits of any ground
for relief is conclusive whether made in the proceedings resulting in the
conviction or in any post-conviction proceeding brought pursuant to this rule
or prior to the adoption thereof, or in any appeal taken from such
proceedings....
3:22-7. Docketing; Service on Prosecutor;
Assignment for Disposition
The clerk shall make an entry of the filing of the
petition in the proceedings in which the conviction took place, and, if it is
filed pro se, shall forthwith transmit a copy thereof to the prosecutor of the
county. If the petition is filed by an attorney, that attorney shall serve a
copy thereof on the prosecutor before filing and shall file proof,
certification or acknowledgment of service with the petition. The clerk shall
promptly notify the Assignment Judge or judge designated by the Assignment
Judge of the filing of the petition, who shall forthwith refer the matter for
disposition to a trial judge.
3:22-8. Contents of Petition; Verification
The petition shall be verified by defendant and
shall set forth with specificity the facts upon which the claim for relief is
based, the legal grounds of complaint asserted, and the particular relief
sought. The petition shall include the following information: (a) the date,
docket number, and content of the indictment or accusation upon which the conviction
was based and the county where filed; (b) the date and content of the sentence
or judgment complained of and the name of the presiding judge; (c) any
appellate proceedings brought from the conviction, attaching a copy of opinions
therein; (d) any previous post-conviction proceedings relating to the same
conviction, giving date and nature of claim and date and nature of disposition,
and concerning any appeal therefrom, together with copies of opinions therein,
trial and appellate; (e) whether petitioner was represented by counsel in any
of the proceedings aforementioned, naming the counsel in each such proceeding,
and stating whether counsel was in each instance retained or assigned; (f)
whether and where defendant is presently confined. Argument, citations and
discussion of authorities shall be omitted from the petition, but may be
submitted in a separate memorandum of law.
3:22-9. Amendments of Pleadings; Answer or Motion
by Prosecutor
Amendments of pleadings shall be liberally allowed.
Assigned counsel may as of course serve and file an amended petition within 25
days after assignment. Within 30 days after service of a copy of the petition
or amended petition, the prosecutor shall serve and file an answer thereto or
move on 10 days' notice for dismissal. If a motion for dismissal is denied the
State's answer shall be filed within 15 days thereafter. The court may make
such other orders with respect to pleadings as it deems appropriate.
3:22-10. Presence of Defendant at Hearing;
Preference
The proceedings shall be given preference and be
determined promptly. A defendant in custody may be present in court in the
court's discretion and shall be entitled to be present when oral testimony is
adduced on a material issue of fact within the defendant's personal knowledge.
3:22-11. Determination; Findings and Conclusions;
Judgment; Supplementary Orders
In making final determination upon a petition,
either on motion for dismissal or after hearing, the court shall state
separately its findings of fact and conclusions of law, and shall enter a
judgment, which shall include an appropriate order or direction with respect to
the judgment or sentence in the conviction proceedings and any appropriate
provisions as to rearraignment, retrial, custody, bail, discharge, correction
of sentence, or as may otherwise be required.
3:22-12. Limitations
A petition to correct an illegal sentence may be
filed at any time. No other petition shall be filed pursuant to this rule more
than 5 years after rendition of the judgment or sentence sought to be attacked
unless it alleges facts showing that the delay beyond said time was due to
defendant's excusable neglect.
Conclusion
It is well established that the prosecution of a
defendant for criminal and traffic offenses are serious matters. In such a
proceeding the burden of proof is upon the state to establish all elements of
the offense beyond a reasonable doubt. Plea bargaining is permitted in most
cases handled by attorneys. Never attempt to represent yourself if you are
facing serious charges.
Criminal and traffic offenses carry penalties which will effect your
client for the rest of his life. The space limits of this article do not allow
detailed explanation of the extensive caselaw on penalties. Criminal and traffic
law and defenses are explained in greater details in other articles on
njlaws.com. Call 732-572-0500 to schedule a confidential consultation.
