It takes a lot of uninterrupted bile (chutzpah) to appeal a conviction and judge after pleading guilty to knowledge and understanding but insurance fraud does not seem to have any problem doing so rather than pay repayment or serve probation; a classic case where the dog bites the hand that feeds him.
I David S. Soliz v State of Texas, No. 01-20-00192-CR, 01-20-00193-CR, Texas Court of Appeals, First District (August 17, 2021) David S Soliz, without agreed criminal recommendations from the state, pleaded guilty to the offense of insurance fraud and forgery of a commercial instrument, the district court judged the appellant's sentence of imprisonment for two years for each offense, suspended the sentence. , placed the appellant on Community surveillance for five years for each offense and ordered that the appellant pay $ 2,200 in repayment in connection with the crime of insurance fraud. A friendly and extremely fair judgment.
After being accused by Soliz, he signed and filed, in each case number, a "Waiver of Constitutional Rights, Stipulation and Judicial Confession Agreement", in which he pleaded guilty to aggravated insurance fraud and forgery of a commercial instrument and admitted that he committed the acts alleged in each indictment. The trial representative, representing Soliz, also signed an exception confirming that he believed that the appellant had knowingly, voluntarily and after a full discussion of the consequences of the grounds, made his allegations. The Ombudsman confirmed that he considered that the appellant was competent to stand trial.
As to the right of appeal, the appellant signed the "Advice of the Defendant's Right of Appeal," in which the district court informed him that Texas law gives a defendant the right to appeal his conviction, but whether he appealed to "guilty or no contest and accepted the punishment that [State] recommended "," c "[ould not] appealed [his] conviction if not [e] [c] our [ave] [him] state.
The District Court found sufficient evidence that the appellant was guilty and that the appellant had freely, knowingly and voluntarily asserted his debts.
Before sentencing, the appellant appealed a request to withdraw his obligation in each trial. figure. He argued that his inability to communicate effectively with the legal assistant contributed to his misunderstanding, and he pleaded guilty to breach of insurance fraud and forgery of a commercial instrument under duress due to his lack of confidence in his lawyer's readiness for trial.
At the hearing of his request to revoke his obligations, the appellant testified that he "wants [ed] to go to trial." According to the complainant, he received and signed the written warnings and then pleaded guilty to breach of insurance fraud and forgery of a commercial instrument. However, he claimed that he misunderstood the effect of his guilty plea.
James Smith, his legal representative, testified to the contrary and that the district court made it clear to the appellant that he had given up his right to a trial and was instead to state obligations and request an occurrence investigation. The district court denied the appellant's request to revoke his guilty pleas.
A defendant may at any time withdraw his guilty plea before a judgment is given or the district court takes over the action under advice. A guilty plea constitutes a waiver of three constitutional rights: (1) the right to a jury, (2) the right to confront its prosecutors and (3) the right not to criticize oneself. In order to be in line with a proper process, a guilty plea must be made consciously, intelligently and voluntarily.
A plea of guilt based on incorrect information is involuntary. However, the defendant's unproven testimony that he was misinformed by his legal assistant does not fulfill his burden of proving that his appeal was involuntary. The Protocol established a prima facie which shows that the appellant voluntarily and with knowledge of the consequences of entering them.
Although the appellant testified at the hearing of his claim to withdraw his accusations that he misunderstood the effect of his guilty plea, the appellant's testimony contradicts his earlier admission that he understood the written admonitions. Since the appellant did not fulfill his burden of proving that his guilty opinions were involuntary, we consider that the district court did not err in refusing the appellant's request to withdraw his guilty remarks. that the minutes do not support the district court's restitution order because "
To the extent that the appellant in his refund question challenges whether the evidence is sufficient to support the district court's refund order of $ 2,200 in the written judgment in connection with the insurance fraud offense, he may address that challenge for the first time on appeal.
The legal confession constitutes sufficient evidence that the district court exercised its discretion by ordering the appellant to pay $ 2,200 in compensation in connection with his insurance fraud offense. Sufficient evidence supports the district court's refund decision of $ 2,200 in its written judgment.
Mr. Soliz's debt was overwhelming. His lawyer advised him to plead guilty because he would go to jail if convicted. He did so voluntarily and was asked about the effect of his appeal several times by the prosecutor, his defense counsel and the judge, sentenced only to probation and only $ 2,200 in compensation. After waiving his right to appeal, he appealed, claiming that he was misled. Chuzpah personified. He deserved to have his probation removed and for breach of probation and sentenced to prison. The court retained, regardless, the friendly verdict.
© 2021 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to serving as an insurance consultant specializing in insurance coverage, insurance claims handling, bad faith insurance and insurance fraud almost as much for insurers and policyholders.
He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance and claims management attorney and more than 54 years in the insurance industry.
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