When you have been charged with or arrested for a crime, you can expect the criminal process to follow the below steps. For expert legal representation in any criminal law or DUI case, contact attorney Ross Erlich.
Misdemeanor vs. Felony Offenses
A misdemeanor is an offense that is punishable by up to one year in county jail and/or a fine. A felony is punishable by fines and more than a year in a county jail or a state prison.
When one is arrested they must be arraigned within 48 hours. This means that they must be taken before a judge, advised of the charges against them and given an opportunity to plead guilty or not guilty. At arraignment several other things occur. First, bail is usually set by the judge. Bail can range from nothing to millions of dollars. In some cases like first offenses or simple misdemeanors, the defendant may be released based upon his/her promise to return to court and not have to post any bail. In other cases such as serious felonies, bail may be set at millions of dollars. In most counties the court has a bail schedule which sets a specific bail for each specific offense. Normally, at the arraignment, the defendant’s lawyer will be given a copy of the charges against the defendant and a copy of the initial police reports which have been prepared to date.
In the case of misdemeanors, after a defendant pleads not guilty his case is often set for a pre-trial conference. This is an opportunity for the defense attorney to discuss the case and possible settlement with the prosecutor and/or the judge prior to setting the case for trial. In the case of a felony, many courts offer an early disposition conference or early settlement conference before the case is set for a preliminary examination. This is often a good chance to talk to a judge or a district attorney about an early and favorable settlement of the case.
Preliminary Examination or Preliminary Hearing
In the case of felonies, after a defendant pleads not guilty he has the right to a preliminary examination within ten court days of his arraignment. A preliminary examination or preliminary hearing, as it is often referred to, is a probable cause determination. At this stage, the prosecutor has the burden of proving that there is a reasonable likelihood that a crime was committed and that the defendant was the one that committed the crime. If the judge finds that probable cause exists then the defendant is held to answer on felony charges and the case may proceed toward trial.
Arraignment in Superior Court
In felony cases, after the defendant has been held to answer on felony charges, he is arraigned again in Superior Court. Thereafter a trial date is set approximately sixty days later.
A defendant in any criminal case has the right to a trial. In a trial twelve members of the community are called upon to hear all of the evidence in the case. When the evidence has been heard, the jury is called upon to determine if the defendant is innocent or guilty. If he is found innocent, or acquitted, then he goes free. If he is convicted then he will face sentencing before the trial judge.
Probation and Sentencing
At the time of the defendant’s sentencing, the judge decides if the defendant will be granted probation or if sentence will be immediately imposed. In misdemeanor cases, informal probation is normally imposed. In felony cases, probation can be granted in many cases. However, just because probation is granted, defendants can still be sentenced to jail time. Remember, probation in felony cases simply means that a state prison sentence will not be imposed right away.
Violations of Probation
If a defendant violates probation, the judge could impose up to the maximum sentence for which the defendant has been convicted. This applies to both misdemeanors and felonies. For example, if a defendant pled guilty to a case with a maximum of three years in prison, the judge could impose up to three years in prison, even if the defendant received probation for the original sentence.
If a defendant has been wrongly convicted they may have the right to appeal. A notice of appeal should be filed immediately upon sentencing in many cases. Beware that there are strict time limits set for filing a notice of appeal if you plan to appeal a criminal conviction. Appeals require great skill and knowledge of the law. Appeals are very different than trial and utilize different standards of proof and can be quite complicated. There are many different types of appeals, some occur before the case is over and some occur after. Appeals, writs and other post-conviction relief is often subject to strict rules and timelines. Failure to understand these rules can compromise your rights. Call a skilled appellate lawyer immediately if you have questions about an appeal.
The law allows us to expunge our convictions in many cases where probation is granted. This applies to both misdemeanors and felonies. If a defendant has been convicted of a felony, typically that charge can be reduced to a misdemeanor and then expunged. Expungement is the process where we ask the court to allow the defendant to withdraw their previously entered plea of guilty or no contest or otherwise set aside their conviction and dismiss the case entirely. This process can be very beneficial to many people. If you have previously been convicted of a felony or misdemeanor, you may consider speaking with a lawyer about reducing your felony conviction to a misdemeanor or expunging any conviction you have suffered. An expungement allows you to tell any non-governmental entity that you have never been convicted or even arrested for the crime that was expunged. If you or a loved one has been arrested, charged with a crime or are currently involved in criminal proceedings, contact Ross Erlich today for a free case evaluation. There may be several different ways to handle your case and confront the evidence against you and it is important that you are aware of all of those ways.