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Resorts, Classification, third degree permits, merging of convictions

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Real Cases

Permits

My husband was sentenced 9 years for Drug Dealing and he has served 4, he has requested twice permits and has been denied on both occasions. We know that it is better to go with a lawyer so that is why we want you to apply for the permit.

My sister in law, has a very good behavior, she is a trust prisoner, condemned for 4 years and some months we need you to apply for the first permit, they’ve told that she has a great chance. Then we want the third degree. My brother is also doing time for homicide in tentative degree, but he has it bad because he has another pending sentence for drug dealing with a fiscal petition of 8 years.

Call us whenever you can.

Third Degree

My sister has enjoyed 4 permits but she will not be given the third degree. We want to hire a criminal lawyer, my telephone is …

In the general process of our penal system no regime exists of a double instance in an express way. However, international texts propose a double pronouncement (for 2) different jurisdictional organs. Against this problem the Constitutional Court has had occasion to pronounce on this and has done so in the sense that this does follow with the Spanish system thru the resort path.

In the matter of resorts, we must have in mind that the presumption rules in favor of the recurrent beneficiary.

General principles or guidelines in this subject:

Prohibition that the resolution of the resort damages the appellant (as long as it’s the only one) . This prohibition is extended to all resorts.
Extensive effect. The beneficiary effects of a resort will be applied to all the affected, even if not all of them have appealed (if damage exists it will not be extended).

Class of Resorts

Ordinary / Extraordinary

Ordinary Resorts: They fit against any resolution, without limit in their justification. They are resort of: • Form
Petition
Appeal
Reform
Extraordinary Resort: Only one: Appeal in high courts

Remanded/ Unremanded

Remanded Resorts: Resolved by the hierarchic superior of the organ that dictated the resolution. There are 3:

Complaint
Appeal
Appeal in High Courts

Unremanded Resorts : Resolved by the organ that dictated the resolution. There are 2:

Petition
Reform

The resort of revision is not a resort in itself. The annulling resort has as an objective the annulment of a resolution dictated in the absence of the accused that looks for it to be resolved in his presence.

Process and its Resorts

Summary Trial: Appealable before the Provincial Audience.
Criminal Summary Proceedings: Competent organs of the Criminal Judge (sentence up to 5 years ) or in the Provincial Audience ( sentence of 5 to 9 years). In the case of a resolution from the Criminal Judge there may be an appeal before the Provincial Audience. If the resolution is from the Audience, it will be resolved on the first and only instance and there will only be an appeal in high courts once.
Process for serious crimes: Only appeals in higher courts are valid if and after the Provincial Audience is passed in a first and only appeal.
Trial by Jury: Resolutions of this organ are dictated in the core of the Provincial Audience and before them the appeal can be presented before the Superior Tribunals of Justice and in some cases appeals in high courts may be presented.

Resorts of Reform and Petition

They are both ordinary and unremanded. The difference between them lies in that the reform resort helps us against unipersonal organs, the other against the collegiate organs.

They proceed against resolutions of interlocutory or processing character (against all court orders from the judge of instruction, criminal judge, the Constitutional Court understands that it is also against any proceeding of providence).

These resorts are contemplated in article 217 of Law of Criminal Procedures. The written resource is formulated following the general rule, then the judicial organ will rule over the court order. Eve in serious crimes the written document will be of petition, reform and/ or subsidiary appeal (in case the first resort of petition or reform is rejected).

Entering an Appeal as a Resort

Interlocutory Resolutions
About the bottom of the matter

The superior in hierarchy must know about the appeal from the organ that dictated the resolution. Generally it is passed from a unipersonal organ to a collegiate.

The appeals against interlocutory resolutions must be expressly allowed by law. ( art. 217 Law of Criminal Procedures )

The period of interposition of these resources is from five (5) days since the resolution is dictated, via a founded document, that will later be decided by a judge if it is admitted with a singular or double effect (suspension or devolution).

All of this is done in front of the organ that dictates the recurred resolution, but resolved by the superior in hierarchy. Against the superior organ may celebrate a hearing (arts. 230 and 231 Law of Criminal Procedures) and the resolution of the resort will take the form of a court order.

When this is about an appeal about the bottom of the matter a 2nd instance is opened (there will be judgment of the matter in question).

This procedure consists in the interposition of a document in a period of ten (10) days since the sentence was dictated. It is interposed before the organ that dictated the recurred resolution. In the written document it is necessary for it to be well-founded, highlight an address for future notifications, ask for new evidence research, and found the petition (plus the signature of the author).

They may be founded on:

Process faults
Defects of evidence evaluation
Infraction of substantive legal precepts

The resort may be admitted and will be moved from the same to the other part of the trial. After this it will be transferred to the superior hierarch. This organ will dictate sentence directly if the evidence research was not asked for. If it was asked, then the Audience will resolve after 3 days about the researched evidence, if it is pertinently estimated these will be practiced in unity with the act ( evidence plus conclusions )after this a sentence will be dictated. (arts. 795 and 796 Law of Criminal Procedures).

The content of the sentence, given the fact that it is a 2nd instance, and if the resort is accepted, will be a bottom of the matter resolution. If the sentence is considered to contain process faults, what happens is that the superior hierarch will annulled any future acts of the process and will retake the process since the moment of the anterior fault.

There are other specialties ( arts. 846 bis a ) and followers – in the case of the Trial by Jury. In these cases the motives to found the resort constitute a numerus clausus ( art. 846 bis c . They include general motives , and other specials belonging to constitution, designation and actions of the Jury. After the interposition document, it will be transferred to the other party ( so it will have the option to interpose a conditioned resort art. 846 bis.

The rest of the process is ordinary.

Another specialty that happens in summary trials is relative to the time period of the resort interposing, which is five (5) days and the Provincial Audience, in ruling on this resort, constitutes of an unipersonal manner (with only a Magistrate).

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Complaint Resort

Ordinary remand resort. It is an instrumental resort that can go against any resolutions that deny or reject any remand resort. It is presented directly before the superior hierarch organ that should about the remanded resort.

The superior will gather the subordinate’s report who did not admit the resort and the Fiscal Ministry. With this information the superior will be able to settle and will do it via court order. If it is esteemed correctly, the resort will be understood as an admitted resort that in principle was not.

Article 218 of Law of Criminal Procedures picks up a peculiarity of the complaint resort for all the court orders that cannot be appealed. The motives of this resort, according to the jurisprudence are the same as the appeals.

The period for interposition is not clear so in a general way ten (10) days are understood.

Article 787.1 Law of Criminal Procedures picks up that a complaint resort must be interposed against all denied court orders of the reform resorts ( but only in the abbreviated penal process ).

The jurisprudence understands this last case as an atypical appeal.

Appeal (as a resort) in high courts

It is a remanded extraordinary resort. Its regulation is contemplated in articles 847 and following in the Law of Criminal Procedures. It proceeds only in the cases that the law states, and protected in the legally established motives. There will be solid requisites in function of the case that we protect while interposing it.

This resort follows a double remanded and suspension effects. This means that on recurring a sentence or a court order, these will not be executed until the resort is resolved. (the execution is suspended).

Exceptions of the Suspension (art. 861 bis a):

There will be no suspension effect when the sentence is absolute and the accused is in provisional prison (or preventive).
There are several condemned and only some of them recurred (art. 861 bis b) the persons that have not recurred appeals of high courts will be able to fulfill the sentence in an immediate way.

( Art 903 Law of Criminal Procedures ): This happens with independence of the extensive effect of the resorts, because if the effects benefit then it affects the rest of the subjects.

The Supreme Tribunal will always be competent for appeals.

Legal Standing: The article 854 Law of Criminal Procedures establishes the following subjects:

Fiscal Ministry
The ones that have formed part of criminal trials
The innocent that have been condemned to a sentence. In case of the responsible civilians that did not participate on the process ( for example: Insurance Companies ).
The heirs of ones and others. Remember that criminal responsibility will be extinguished with the death of the parts. The High Court’s doctrine understands the intervention of heirs admissible the effects of civil responsibility. It also admits the search for a repairing sentence to the effects of honor (injuries, calamities,…) reintegration of prestige.

Susceptible Resorts for Appeals: arts 847 and 848 Law of Criminal Procedures

Dictated sentences by the Higher Courts of Justice in an only instance or 2nd instances.
Dictated sentences by the Audiences (Provincial or National) in an only instance.
Higher appeals before the Higher Courts regarding doctrine unification.
Certain court orders ( art 848 Law of Criminal Procedures ) against with what the law expressly stipulates that may be resorted, based on the facts of infraction of the law ( non process, substantive ), as well as court orders of stay of proceedings that derive of the facts as atypical.

Motives of Appeals

Faults in iudicando (infractions of fundamental law) traditionally
Faults in procediendo (infractions for defective process ways)
Faults in iuicando

Infringement of law in its ample sense: [art. 849.1 Law of Criminal Procedures] When, given the facts that have been declared proven in the understood resolutions in the two previous articles, a penal precept had been infringed of its fundamental character or other law of the same character that must be observed in the application of the Penal Law.

Error in the appreciation of the evidence [article 849.2 Law of Criminal Procedures] : When there has been an error in the appreciation of the evidence, based on the documents that form the court orders, that prove this error in the judge without contradicting other evidence.

Faults in the procedure or breakings in the process form

The ones that effect the norms of the procedure in itself ( art. 850 Law of Criminal Procedures ):

When a diligence has been denied of proof that, proposed on time and form by the parties, has been considered pertinent.
When the citation of the processed, civically responsible, accusatory part or civil author has been omitted for their appearance in the oral process, unless the parts have been asked to attend in time, considering them cited.
When the president of the Tribunal, denies an answer to a witness, in a public audience, in a practiced diligence outside it, to the question or questions directed to him, being pertinent and linked directly with the cause in question.
When any question is rejected for trickery, dubiousness, suggestive, or impertinent not being any of the before mentioned, as long as it has a great importance with the result of the crime.
When the court has decided to not suspend the trial for the attending processed, in the case of an absence of the processed, as long as it is well-founded that they can be judged independently and the trial has not fallen into revelry.
The ones that can exclusively affect the sentence (art. 851 Law of Criminal Procedures).
When in the sentence the facts that were proven with evidence are not expressed clearly or there is a contradiction between them, or proven fact concepts are consigned, this with their juridical character implies a predetermination of fault.
When the sentence only expresses that the alleged facts for the accusations have not been probed, without an express relation to the ones that were.
When it is not resolved around it all the points that were the object of the accusation and its defense [altered incongruity].
When a more serious crime is punished than the crime on which the accusation was based upon, if the Tribunal did not proceed as the law dictates in article 733.
When the sentence has been dictated by a less number of Magistrates than the law dictates, or without the votes needed.
When a Magistrate has concurred to dictate a sentence whose recusal tried in time and form, and founded in a legal cause, has been denied.