Felony: The Process from Arrest to Appeal

Arrest

The arrest is the start of an incarceration process most cases have a preset convenience bond which allows you to bond out with cash or a bondsman. Bondsmen generally charge about 10% of the bond-able amount. Call me for a short list of bondsmen that I trust and work with on a regular basis, so we can proceed expeditiously and get you released from jail.

Magistrate Hearing (first 24 hours of incarceration)

The arrestee is constitutionally entitled to this hearing if he does not post a bond within a 12 hour period.  In some cases depending on the facts, the charge and the judge, the judge may deem the individual a flight risk or a danger to the community and deny bail. You are entitled to be represented at this first hearing, as well as it gives the attorney a chance to make bail arrangements with the judge. In many cases the judge can put the individual on a pre-trial release with no cash requirement. It is always better to have an attorney present at these magistrate hearings because we know the arguments that will restore your freedom. If notified, I will appear at magistrate court and argue on your behalf and get you released from jail immediately.

Prosecutor filing charges (21 day rule)

Generally the State’s Attorney’s office (prosecutor) will file formal charges in what is called an “Information”.  An “Information” is kind of like the big traffic ticket listing the charges against you. This is usually accomplished within the first 21 days after an arrest. If you contact my office at the early stages of your arrest, in many instances, depending on the severity of your case,there is a strong possibility I can get your charges dropped or reduced. This can be done through negotiations with the prosecutor on  your behalf,  explaining the strengths of your case. This will be very beneficial because lower charges tend to be less work thus saving you money. If no charges are filed after 21 days you are entitled to a probable cause hearing. If no charges have been filed within the first 33 days of arrest the individual must be released from jail without posting a bond.

Arraignment

The arraignment in a felony trial follows the same process as in a misdemeanor trial. This is where the Court wants to know if your requesting the “discovery” from the prosecutor. This includes police reports, witness and victim statements, evidence, forensic material, pictures, recordings, and anything else that may be important to your innocence or guilt. The Court wants to know if you are pleading guilty or not guilty.  The Court wants to know if you want a trial by judge or jury. Most importantly the Court wants to know if you will have legal representation. An arraignment is a virtual formality prior to trial. Very few cases are dismissed at arraignment.

6 things that must be done after arraignment:

1.     The defense attorney must vigorously defend his client’s interest. Click on my
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2.     The defense attorney must present all options to his client with
recommendations and professional opinions.
3.     The defense attorney must prepare his client completely for each step in the
legal process.
4.     The defense attorney must review all possible defense scenarios and
interview all witnesses and review evidence in support of the clients case.
5.     The defense attorney must develop a theme to the defense. The theme is
composed of a powerful defense strategy and a course of action to present
reasonable doubt or otherwise minimize exposure or punishments.
6.     The defense attorney must gather all evidence and prepare and identify any
witnesses.

Pre-Preliminary Hearing

This involves a meeting between prosecution and defense. Topics discussed in most states include plea bargain opportunities, strengths and weaknesses of the prosecutions case, and intangible factors of the case, such as the defendant’s character and past history.

Pre-Trial Conference

The pre-trial conference is a formal setting where plea bargaining occurs. The prosecution may offer alternative sentencing. The charge may be changed to a lesser charge. The number of felony counts may be dropped. A lesser punishment for the same charge may be agreed upon.
The pre-trial conference is used to introduce evidence, submit motions, identify procedural issues, exchange witness lists, and plea bargain. Most cases that do not reach trial are plea-bargained at the pre-trial conference.

Expectations at the pre-trial conference:

-The defense presents a legal case on behalf of the defendant.
-Further discovery takes place.
-Factual and legal evidence is established.
-Debate over sufficient evidence occurs.
-Review on whether the facts are sufficient occurs.
-Strengths and weaknesses of witnesses are examined.
-Issues with the evidence are submitted.
-Motions may be made and heard.

Sample motions the defense attorney can file and argue at a pre-trial conference:

-To Suppress evidence based on a Violation of the Defendant’s Constitutional Rights
-To Dismiss the information and complaint
-To Compel discovery
-To Sever counts
-To Dismiss for Lack of a Speedy trial
-To Modify or reduce bail
-Bill of particulars
-To Reduce charges
-To Change Venue
-To Strike a prior conviction
-To Preserve evidence
-To examine a police file

Trial

Each state has different rules for Trials. To list all the possible scenarios that could happen at Trial is to exhaustive a list to be referenced here. Some states provide the right to choose between a trial by judge or jury. Others do not allow the defendant a jury trial in misdemeanor cases. The number of members on a jury varies by state. However, in Florida one has the right to be tried by a jury of 6 of their peers.
A jury trial is the fact finding phase of the case. It is the in-court examination and resolution of a criminal case. At the trial a decision will be reached as to the innocence or guilt of the defendant. Unlike a plea-bargained settlement which completes the case prior to trial, a trial introduces risk for both the prosecution and defense. Neither side knows which side will prevail. The trial begins with the prosecution’s opening statement. The defense attorney may also present an opening statement at this time or he may reserve his opening statement until the beginning of his case-in-chief. The prosecution presents his case to support the charges and then rests. The defense presents his case to refute the charges and then rests. Closing arguments by both the prosecution and defense conclude the presentation part of the trial. The jury then deliberates innocence and guilt.

In a trial, expect the following to occur:

-Jury selection
-Opening statements are presented by both the prosecution and the
defense
-The prosecution presents their case
-The defendant cross examines
-The defense presents their case
-The prosecution cross examines
-Closing arguments are presented by both the prosecution and the
defense
-The prosecution, defense and judge decide on specific instructions to
the jury
-The judge instructs the jury on rules
-The jury deliberates
-The jury submits their verdict

Acquittal/Not Guilty Verdict
The two words every criminal defense attorney loves to hear – “Not Guilty.”
The next best two in line are “case dismissed.”

Sentencing

Sentencing is a court hearing where the judge determines punishment. The judge determines the length and type of punishment at a sentencing hearing. Witnesses are generally allowed to speak, requesting either a lighter or stiffer sentence. The defendant may make a statement to the court.

A defendant may be sentenced to Probation instead of prison/jail. However, he/she may be ordered to do some local custody time as a term of his or her probation. If a person violates his/her probation, he/she may be incarcerated.
Formal probation is when an individual is supervised by a probation officer.
Informal or administrative probation is unsupervised.
If probation is not granted, there is usually a range of three prison terms in each FELONY crime: the low term, mid term, and high term. Lawyers argue about the proper term based on the facts of the particular case. The final word is within the judge’s broad discretion.
Sentencing modifications occur when part of a person’s sentence becomes inapplicable to their case. For example: Suppose a man is convicted of the crime of spousal abuse, and part of his sentence includes that he must stay away from his wife. However, if the man and the wife decide to reconcile, then it would be appropriate to ask the court to “modify” the man’s sentence.

7 things to consider regarding sentencing:

1.     The judge almost always determines punishment.
2.     The judge may be required to follow specific sentencing guidelines.
3.     The eighth amendment to the U.S. Constitution provides that punishment may
not be cruel or unusual.
4.     Factors such as no criminal history, a good public record, and professional or
personal responsibilities may persuade the judge to provide a lighter
sentence.
5.     A previous criminal record, use of a dangerous weapon, gang ties, degree of
injury or financial loss, and the type of conviction may persuade the judge to
provide a harsher sentence.
6.     Judges almost always give repeat offenders stiffer sentences.
7.     If the defendant is not planning on appealing the case, this may be an
appropriate time to acknowledge responsibility in order to convince the judge
to give a more lenient sentence.

Circumstances That Can Adversely Affect Sentencing:

(1) Previous Criminal Record.
A defendant’s past record is a large consideration when determining an alternative or lesser sentence within the lower end of the sentencing guidelines. A previous record can also affect the level of security of the facility that the defendant will be sent to as a result of sentencing. Most correctional facilities use a point system unfavorable to repeat offenders costing them time deducted from their sentences. On the contrary, first time offenders are frequently sent to camps or community centers instead of penitentiaries.

2) Enhancements.
Most states carry statutes which call for stiffer penalties if a defendant’s crime involves the use of a dangerous or deadly weapon, serious or permanent bodily injury, or crimes against youth or the elderly. Enhancements generally increase the sentencing penalties. In some states, enhancements are not a separate charge and are considered part of the primary offense such as armed robbery.

Sentencing Alternatives

Some alternatives to jail that might be negotiated are:

-Detox Programs
-Electronic Home Monitoring
-Residential Treatment Centers
-Counseling
-Weekend Work Programs
-Community Service

Collateral Consequences of a Conviction

In addition to any sentence imposed by the court, a conviction can have a number of independent consequences. On felony cases, these consequences can include, but are not limited to:

-Loss of the right to vote.
-Loss of the right to possess a firearm of any kind.
-Loss of the right to associate with known criminals.
-Registration as a sex offender.
-Increased penalties for future criminal convictions

Appeals

After a defendant has been found guilty by way of trial, the defense attorney may request a higher (4th District Court of Appeals in Palm Beach) court to review specifically identified flaws in procedure with the possibility of changing the lower court’s decision. It is important to recognize that the appeals process may only begin after the defendant has received the final verdict.

An appeal occurs after the court has rendered its decision. The goal of an appeal is to have a higher court review and change the decision of the lower court, or send the case back to re-trial. There are two key types of appeals. One attempts to overturn the court’s decision. The second attempts to overturn the courts sentencing decision.

The defendant should ask his defense attorney to thoroughly review a transcript of the entire trial prior to preparing an appeal. In an appeal, no new witnesses and no new evidence will be available. Each party prepares briefs that the judges review prior to rendering a decision.

Once the trial has been completed, the facts have been decided. They can’t be changed by an appellate court. The appeals process reviews defects in procedure of the trial. If the defense attorney can identify substantial improper procedural issues, he may be able to win the appeal. These defects in procedure may include any of the following:

– The judges instructions to the jury were improper
– The prosecution made improper comments to the jury
– Jury tampering
– Improper introduction of evidence
– etc..

The timeline of the appeals process varies from state-to-state. Some post conviction tactics to get relief for the defendant include:

Motion for Acquittal
Motion For New Trial
Motion For New Sentencing
Appeal To Appellate Court
Appeal To State Supreme Court
Appeal To U.S. Supreme Court

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