Perry (D) was a prisoner that became involved in a fight in prison and was charged with misdemeanor assault with a deadly weapon. D was convicted, and as per his right, he was entitled to a trial de novo. D got a six-month sentence and filed a notice of appeal, but prior to appearing for his trial de novo, the prosecutor obtained an indictment from a grand jury charging D with felony assault with a deadly weapon. D pled guilty and appealed the 5-7-year sentence.

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