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Two adult men appealed from judgments of a state court

Two adult men appealed from judgments of a state court convicting them after a joint trial of the drug crimes of sale of a dangerous drug and marijuana possession and sentencing each of them to seven years imprisonment.

One of the accused argued on appeal that the court had previously accepted a plea of guilty to the lesser crime of attempted criminal possession of a dangerous drug, a Class E felony, to cover the entire indictment; that thereafter, the court unilaterally set aside that plea and directed a trial upon which the defendants were convicted of the Class C felony for which they were indicted and for which they have now been sentenced. In essence, they assert a claim of double jeopardy.

Sources, however, showed that during the joint trial the accused applied to withdraw his plea of guilty and the court granted that application, and this was the understanding of all at the time. It is apparent that the court thought that the defendant was moving to withdraw his plea and not that the court was acting unilaterally.

The court explained that a major purpose of requiring a party to make known his objection to an action by the court is so that the court shall have an opportunity of effectively changing the same. The court pointed out that if the defendant’s attorney at that point in the joint trial had thought and said that he had not made an application to withdraw the plea of guilty, there can be no doubt that the court would have required him to say whether he was or was not moving to withdraw the plea. The court noted that the defendant’s attorney did not suggest in any way to the court that the court’s interpretation was incorrect. But now appellate counsel reading the cold record urges the court to interpret what took place in a way different from what the parties understood at the time.

If the court had unilaterally and improperly purported to set aside a plea of guilty, the defendant would have had an a defense of previous prosecution to any further proceedings, which would be the subject matter of a motion in the trial court to dismiss the indictment. However, the defendant never raised that argument. Plainly, rather than be sentenced to something more than one year imprisonment, defendant chose to gamble on a trial.

The court thinks there was abuse of discretion and that a reversal of the indictment is not warranted. The court noted that the defendant had what the court at sentence called ‘an extensive criminal background.’ These crimes, as brought out in connection with the motion, included assault and robbery, a grand larceny automobile arrest which had apparently resulted in a felony conviction for which he served time in state prison, possession of drugs, resisting arrest, and criminal sale of dangerous drugs.

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