More Scoot
Talked to him yesterday. He’s back at work and getting on with his life. Thanks to readers, I have a ton of legal info to give to him. The ATF said he was a flight risk and should be held. The judge was unconvinced. On the felony charges, I have no information on the incident other than the names of the charges per the TN database (they were felony contempt, felony reckless endangerment and aggravated assault). However, he said to me that when it happened (he was 18 years old), he plead down and served 30 days. He said it was his understanding that charges were misdemeanor. And based on what I read, felonies often carry more than a one year sentence. Additionally, the database said he was sentenced to three years. So, Scoot is convinced he was not a felon and said when he was thinking about enlisting, a background check showed him clean. And there is a discrepancy in the sentence based on what the database says and what he said he served. Possibilities:
Scoot’s wrong or stretching the truth (the latter I find unlikely but obviously can’t prove)
The database is wrong
When he plead, he was told one thing but another was recorded
Anyway, I’ll be curious to see how it goes.
March 30th, 2006 at 2:07 pm
I have a friend in TN that was arrested and charged while in college. He was innocent and the charges were dropped. For years he had a problem with TICS because of it but it seems to have disappeared now.
March 30th, 2006 at 2:29 pm
And based on what I read, felonies often carry more than a one year sentence.
True, but you look at the maximum possible sentence to determine whether it’s a felony, not the actual sentence. IOW, it’s possible to be convicted of a felony and be sentenced to
March 30th, 2006 at 2:42 pm
Maybe someone else of the same name that did serve 3 three years? No, too great of a coincidence if the charges and the date are similar, too. But there often is confusion about whether an old charge was a felony – and too many judges that stand “beyond a reasonable doubt” on it’s head. I hope Scoot’s lawyer can find the old court records.
March 30th, 2006 at 3:19 pm
And if he was CHARGED with a felony but PLEAD DOWN to a misdemeanor then, well, he was convicted of a misdemeanor.
Of course, this is something he needs a lawyer to figure out.
March 30th, 2006 at 3:25 pm
Looks like my previous comment got truncated by a lesser than sign. Dang it.
March 30th, 2006 at 3:39 pm
Jed, I checked and there’s nothing beyond ‘sentenced to’
Feel free to resubmit or let me know what you said.
March 30th, 2006 at 5:02 pm
It is my understanding that in is illegal for anyone convicted of a crime punishable by one year in prison or more on own a firearm. While it is true felonies are punishable by one year or more, it is not have to be a felony to punishable by one year or more. If the crime convicted of is punishable by one year or more it is illegal to own firearms.
March 30th, 2006 at 6:00 pm
I think the big lesson is that women and government are evil.
Which is *more* evil would be the subject of an interesting debate….
March 30th, 2006 at 6:01 pm
I don’t remember, exactly. Let’s see…
It’s possible to be convicted of a felony, yet sentenced to less than 1 year.
Something is definitely screwy if the database shows a 3-year sentence. Although, if he was sentenced to probation or some other form of post-release supervision, that might equal 3 years.
It’s also possible that even though he pled down, the original charges were incorrectly entered into the system.
March 30th, 2006 at 7:12 pm
This is from the Tennessee Code
39-11-110. Felonies and misdemeanors distinguished.
All violations of law which may be punished by one (1) year or more of confinement or by the infliction of the death penalty are denominated felonies, and all violations of law punishable by fine or confinement for less than one (1) year, or both, are denominated misdemeanors.
[Acts 1989, ch. 591, § 1.]
March 30th, 2006 at 10:55 pm
If he plead down to a misdemeanor, that is what he was convicted of.
If he plead to a felony with a reduced jail time (actually, its usually a simply promise on behalf of the prosecutor to request a reduced sentence) than he was convicted of a felony.
Was he represented by counsel at the time? If so, his lawyer may have some records or recollection. Because of the trouble a felony causes for the rest of your life, my guess is that at the time he probably did manage to plead down to a misdemeanor (that, and the fact that I rather doubt a court in Tennessee would go along with a 30 day sentence for felony assault on a police officer).
March 31st, 2006 at 4:02 am
According to the feds if you’re convicted of a crime punishable by more than one year on the federal level or more than two years on the state level as well as domestic violence misdemeanors you’re prohibited from owning a firearm legally. State law can be harsher or more lenient – depending on the state. Feds will claim that fed law supercedes state law where fed law is harsher. But it’s convicted, not served. A 1 day sentence suspended & a $1 fine would still be enough to disqualify you form legally owning a firearm if you could have receieved mroe than one year (or in some cases two). You don’t have to recieve the time, you just have to have been in danger of receiving the time.
In any case it’s very possible to be charged with a felony, then convicted of a misdemeanor & for some reason it shows up as a disqualifying offense. Occassionally a conviction will be vacated on certain conditions (community service, counseling, reimbursment to a damaged party, etc…) but often times it requires a lawyer to follow through on the vacation of the sentence. Hence a few folks think they’re clean but still have felonies on their record. It cna usually be cleared up but it takes time cash & an attorney who knows how the particular court works.
so it’s very possible that Scoot was charged with a felony but convicted of a misdemeanor. It’s also possible that he was supposed to have a felony conviction wiped from his record but the courts failed to do so for some reason. It’s also conceivable that he was led to believe that he was pleading to a misdemeanor but in actuality pled to a felony.
In many places any form of assault on a cop is a felony. & assault is not beating the cop up. Usually touching the cop qualifies. I mean just placing your hand gently on the cops arm.
I have a friend who got charged with felony assault on a cop. she threw her jacket down on the ground & the cuff grazed the cops leg. She was convicted but the judge said he’d vacate after community service. She sent in her proof after completion& everythign was fgine til she tried to buy a firearm. Seems the NRA pushed a law through in Colorado where an arrest w/o a disposition is grounds for disqualification. a vacated conviction leaves no disposition, hence much paperwork followed before she could legally buy in this state. (The “guilty til proven innocent law” is what the actual pro-gun groups call it). Anyway just saying that the courts can be a complex place & despite a person thinking everything is cool things can be uncool. So I wouldn’t doubt him if he says he didn’t believe he was a felon, or more accurately a prohibted person.
March 31st, 2006 at 10:00 am
Actually, two years for state offenses is the exception, not the rule. The general rule under 18 U.S.C. 922(g)(1) is that no person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” may possess a firearm, regardless of whether that conviction happened in state or federal court. The twist is found in the definitions section of 18 U.S.C. 921(a)(20), which defines the phrase “crime punishable by imprisonment of a term exceeding one year” to exclude “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” To the extent Tennessee classifies all offenses punishable by more than one year as felonies, the one-year rule will apply to federal and state offenses alike.
March 31st, 2006 at 10:05 am
You’re probably thinking of battery. Assault does not require physical contact at all.
April 2nd, 2006 at 4:54 pm
Aggravated assault is a class C felony under state law, punishable by a term of imprisonment of three to six years. Mr. Olivent received a 3-year sentence, which is the minimum.
There is a difference, though, in the sentence imposed and what one actually serves. You can be sentenced to 3 years with the manner of service to be probation or you could serve 30 days with the balance on probation. Or, you could serve the entirety of it.
Mr. Olivent’s attorney conceded in court that his client has felony convictions. What he told the judge was that the conviction overstated the seriousness of the conduct.
Federal law makes it a crime for anyone convicted of crime that is punishable by one year or more … to possess a firearm. That doesn’t mean you must have served a year in jail – only that the underlying crime has a potential penalty of one year or more.
I have no way of knowing what Mr. Olivent “thought” he was pleading to, but having covered courts for years now, I can tell you a few clues as to what he thought.
1) Defendants who plead guilty to felonies are told that they are being found guilty of a felony and that such conviction will deprive them of rights including the right to possess a firearm, to vote, etc…
2) All misdemeanors in the state of Tenn., with the exception of low-level ones like littering, carry a penalty of 11 months, 29 days. Not a year. 11 months, 29 days. Unless you just flat out aren’t listening, it’s hard to confuse a 3-year sentence with something as odd as 11 months, 29 days.
3) Anyone who pleads guilty to anything in this state must sign several forms, all of which show the crimes to which you are pleading, whether those crimes are felonies or misdemeanors and the punishment each of those crimes carry.
4) Judges accepting guilty pleas always ask defendants if they have read those forms, if they understand them, if their attorneys went over them, etc…
5) I have never seen anyone plead guilty to three felonies without an attorney. A judge simply wouldn’t allow it. In the very least, a judge would appoint what’s called “elbow counsel” just to make sure the person doesn’t later back up and say, “I didn’t have an attorney. I didn’t know what I was doing.”
I hope that this information proves helpful or at least informative in your debate. Maybe Mr. Olivent somehow zoned out during the plea process and didn’t hear a word the judge said. Maybe he didn’t read any of the forms he signed. Maybe he had no idea that for three years he was on state probation. Maybe his lawyer lied to him and the judge said absolutely nothing at a plea hearing to clear up his confusion. But it’s not database error. There are judgments of felony conviction filed in Mr. Olivent’s case in Blount County that are now part of the federal court record.