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Robert John Gallemore was charged with Felony DWI in Wise County. Facing a range of 2 to 10 years in prison, he pled guilty before Judge Fostel and asked the judge to assess punishment. While Judge Fostel was considering the sentence, the defendant's lawyer pointed out a flaw in the indictment which actually made the case a misdemeanor (with a maximum sentence of one year in jail.) He was right. The indictment only alleged a misdemeanor. So the lawyer says, and I'm paraphrasing, "hey judge, go ahead and sentence my client for the misdemeanor offense."
The judge says that his court only has original jurisdiction over felonies, not misdemeanors. If a misdemeanor offense is committed, it has to be filed in the Wise County Court at Law. That's true, too. So the judge declares a mistrial and sets aside the defendant's guilty plea.
The DA's office then re-indicts the guy to fix the error in the original indictment and does something which probably should have been done in the first place. They discovered the defendant had twice before been to the pen, so they added two enhancement paragraphs making the defendant a Habitual Offender. This means the new punishment range was 25 years to life in prison! That's right, the case went from 2 to 10 years to 25 years to life.
The defendant objected on double jeopardy grounds (he had already been charged and pled guilty, he said) but the judge denied that motion. The defendant once again pled guilty and the judge gave him 25 years.
The defendant appealed and the appellate court, yesterday, said the district court in Wise County does indeed only have felony jurisdiction so the first indictment that alleged only a misdemeanor was void. It had no effect whatsoever so the defendant couldn't enter a guilty plea to a non-existent case. So the new indictment stands. As does a 25 year sentence.
Ouch.
12 comments:
Good thinking on the part of Judge Fostel. I like him even more now!
Good...send em back to the pen.
Let's see now----a defendant has been to the pen twice and commits a 3rd offense and gets 25 years? Sounds good everytime I read it....
I'll drink to that.
I'm telling you, those days of not guilty decisions by jurys on DWI cases is narrowing.
wow, sounds like our system worked this time, how long till he gets parole though
Dago Hope he's fifty years old.
Not exactly right on the facts Barry. Defendant was allowed to plea to the DWI only but didn't pled true to the 1st and 2nd DWI offenses (noted on plea paper work the DA signed). At sentencing several weeks later (with the ADA) this came to light. After hearing on punishment in which the case was continued for briefs on the issue to be written the case was dismissed not mistrialed, and re indicted with the enhancement paragraphs for the 2 prior trips to the pen. Which the defense lawyer was told would happen if defendant didn't plea. Oh by the way he knew he was 25-life eligible at the time he jacked around initially. Thats what happens when you try to be to clever. Really pissed Jim Shaw off too. One of better days I've had practicing law.
DJ
No one is wondering how the DA's office could have screwed up the indictment so badly in the first place? They not only missed making the indictment correct for the intended charge, but they also missed his priors? I mean, I get that people make mistakes, but this many on something this important? And if it wasn't for the defendant shooting himself in the foot, would it have been caught and corrected?
The FACTS are it was his 3rd DWI .... or 3rd time to get caught, so he deserves to be in jail.... Thank You Judge Fostel
Sounds like the clever defense lawyer outsmarted himself.
What everyone fails to see is that this person was under two indictments at the same time for over a year. Another point I see is the judge did declare a mistrial, not a dismissal. There are some other facts that conveniently got swept under the rug, like when mr. Gallemore was making his second appearance on the second indictment, Jim Shaw was asked by the court stenographer what the case was doing back in court, and stated how he thought it was disposed of the previous year, and how then Jim states in his boisterous manner that he has, "Well it would be over if the judge knew what he was doing!"
And how the judge had walked up on him and overheard the remark. Then it became personal, a pissing contest. There were only a handful of witnesses to this, but I was one of them.
Yes, the defendant had been to the pen twice previously, the second on a DWI as well. If there were to be facts put in these little summaries, they would add that there was almost a twenty year period with the defendant being a productive tax paying citizen before he developed an alcohol problem. Yes he was guilty. But twenty five years?? He needed treatment, not thrown away.
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