If you or a loved one are facing criminal charges, it is imperative that you understand that you have rights. The paramount one being the right to retain an attorney. The defendant is guaranteed the right to legal representation, whether the attorney is appointed for the defendant or the defendant hires a private attorney.
1. Right to counsel (attorney)
2. Right to effective assistance of counsel (attorney)
3. Right to cross examine and confront witnesses
4. Right to testify on one’s own behalf
5. Right to remain silent
6. Right to a speedy trial
7. Right to use courts subpoena power to compel witnesses to testify
8. Right to a jury trial (in most cases)
9. Right to an impartial jury
10. Right to produce evidence on your behalf
AND
Stand Your Ground is a defense that allows a judge to determine the validity of a self defense claim and should always be alleged when defending these cases. A person is under no obligation to retreat in the face of a reasonable fear that threatens life or limb, or threatens the same to a family member. I have argued numerous cases regarding this issue, and in some cases the need to defend one’s self is the most important fundamental issue that insulates the accused. it allows people to protect themselves without fear of arrest or incarceration.
Arraignment
bail/bond
confirm attorney of record
confirm identity of defendant
identify the charges
Pre-Trial Conference (one or more)
identify the issues
identify any witnesses
identify case strengths/weaknesses
Pre-Trial Motions
plea negotiations
Trial
Pre-Trial Motions
issues of fact are decided
Sentencing
judge imposes sentencing after defendant has been convicted.
Appeal
the defense may request a higher court to change the lower court’s decision of the circuit court.
Seal and Expunge
Seal and Expunge is a legal term for sealing one’s criminal record.
Arraignment
bail
confirm attorney of record
confirm identity of defendant
identify the charges
Pre-Trial Conference (one or more)
identify the issues
identify any witnesses
identify case strengths/weaknesses
Pre-Trial Motions
plea negotiations
Trial
Pre-Trial Motions
issues of fact are decided
Sentencing
judge imposes sentencing after defendant has been convicted
Appeal
the defense may request a higher court to change the lower court’s decision
Seal and Expunge
Seal and Expunge is a legal term for sealing one’s criminal record.
What Is An Arraignment?
An arraignment is the process by which the defendant is read specific charges against him. It is the first step in the criminal process after arrest. It is a brief hearing. All arraignments are conducted after the suspect is arrested and booked by law enforcement. An arraignment takes place only after the prosecuting attorney decides to file charges and in most cases client appearance is not required if you have retained us as your attorney.
What Will Happen At The Arraignment And What Must The Defendant Do?
At the arraignment the defendant will appear before a judge. The defendant is always advised to bring private legal counsel. An arraignment is the time where the judge will ask if the person appearing is the person identified in the charges. In addition, the judge will ask whether the defendant will plead not guilty or guilty/no contest. It is highly unusual that a defendant would enter a guilty plea at the arraignment. Our law firm almost always advises a client to never plea/take a deal at arraignment.
At an arraignment:
(1) The defendant usually will be provided with a written allegation
from the prosecutor.
(2) The defendant will be asked to acknowledge his identity.
(3) The defendant may have private counsel present or the court may
appoint one.
The defendant may be told his possible punishment. The possible punishment is not a reflection on the case or the judges view of the case or the defendant.
If charged with a misdemeanor, the defendant is required to reply to the written charges with a plea of either guilty, not guilty, or nolo contendere (no contest). If charged with a felony, the defendant may or may not be required to reply with a plea at the initial arraignment. (The policy of presenting a plea at a felony arraignment is different state-by-state).
In a misdemeanor case, the judge will set the defendant’s tentative appearance schedule. In a felony case, the judge will set the defendant’s tentative preliminary hearing. (Not all states have preliminary hearings. Some convene a grand jury to find probable cause.)
Bail is established. The defendant has a right to argue for a bail reduction.
Discovery is usually presented to the defense attorney. Discovery usually consists of a police report and a complaint. This varies by state. Some states do not provide discovery until after the preliminary hearing or indictment.
If the defendant enters a plea of guilty or no contest at the arraignment, the judge may sentence the defendant at that time.
In Mallory v. United States, 1957, the U.S. Supreme Court ruled that an arraignment should take place as “quickly as possible”. Each state views a speedy arraignment differently. Consult with an attorney to identify how quickly the defendant can expect an arraignment. Generally, the rule-of-thumb is to expect arraignment to occur within two days after being arrested. If the defendant is arrested and released on bail or on his own recognizance, arraignment may take longer than if he is arrested and remains in jail.
Plea bargaining consists of two types: sentence bargaining and charge bargaining. In exchange for a plea of guilty or no contest by the defendant, the prosecutor may recommend a lighter sentence or may drop charges to a less serious offense.
95% of all cases end in a plea-bargain. Plea-bargaining is an excellent way to avoid a potential stiff conviction in favor of an agreed upon lighter conviction. For instance, in a drug possession case, a judge may be convinced to dismiss the charges in return for the defendant’s successful completion of a rehabilitation program. Some judges and prosecutors are amenable to plea-bargaining, whereas others are not. Plea bargaining enables the judges to move cases through the legal process, and prosecutors to rack up convictions.
1. A judge-approved guilty or no contest plea bargain may result in a criminal
conviction.
2. The conviction will show up on your criminal record.
3. The defendant may lose rights and privileges as if the defendant were
convicted after trial. For example, a convicted felon loses his 2nd Amendment
Right to possess a firearm FOR LIFE!
4. A plea bargain conviction may result in immigration consequences such as
deportation and exclusion from re-admission to the USA for illegal aliens and
LPR’s (Lawful Permanent Residents).
5. A no contest plea has the same force and effect of a guilty plea, the only
difference is that it cannot be used against you in a civil proceeding arising
out of the same circumstances as those of the criminal charge.
6. A guilty plea serves as an admission of guilt.
7. A plea bargain may result in a lighter sentence and completes the matter
quickly.
8. Probation, and the costs associated, will likely be imposed. Again, keep in
mind the immigration and non-immigration consequences associated with a
plea and conviction. For example, one who is applying for citizenship or even a
position in a law enforcement capacity, will not be able to do so if on
probation.
Law Office of Thomas A. Morse, Esq.
1330 SE 4 ave. suite G
Fort Lauderdale, FL 33316
All consultations are FREE!
After hours & weekend
appointments available.
After a defendant has been found guilty by way of trial, the defense attorney may request a higher 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..
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
In death penalty cases, the appeals process is automatic.
A Stand your ground motion may be directly appealed upon its denial even prior to the jury trial.
In some cases there can be a no Bail/Bond hold which means the court would not allow a person to leave jail or remain incarcerated. This generally happens in a violation of probation or community control, picking up a new charge while out on Bail/Bond for a current charge, or a capital felony punishable by life Imprisonment. However, A person can be release thru an “Arthur” hearing which is a mini Judge trial.
A Bail Hearing is not a period of time to argue the merits of the case. Bail is an amount of money used by the court to ensure the defendant comes back to court when required to do so.
The 2 factors the judge considers before setting bail. Any bail argument by the defense attorney must address both parts:
1. Is the defendant a danger to the community?
2. What is the likelihood the defendant will flee?
In order to get bail reduced the defense attorney should do the following:
1. Demonstrate the defendant is not a danger to the community
2. Demonstrate the defendant presents no likelihood to flee. The defense
attorney can present this in various ways and must demonstrate the alleged
crime is not one that the defendant would do again:
-Character references
-Community support
-Stable employment history
-Memberships in religious or civic organizations
-Surrendering the defendant’s passport
-Agree to electronic monitoring
-Community ties
-Local employment
-Local family ties
1. Surety Bond (most common): The bail agent guarantees to the court that they
are responsible for the bond if the defendant fails to appear.
2. Release on Own Recognizance (get out of jail free card): If the judge is
convinced the defendant is not a risk, he may release the defendant (“O.R.”).
3. Cash Bail: The defendant is responsible for paying the entire amount of bail to
be released. The defendant will receive his bail back at the completion of all
court appearances.
4. Bail Bondsman. Broward County Generally charges 10% of the full bond. Amount plus some sort of collateral for security.
BENEFITS OF EXPUNGING AND SEALING
There are many legal and practical benefits to expunging or sealing a criminal history record. These include:
Once a person’s record has been sealed or expunged, he or she is legally protected from having to disclose the subject criminal history. This disclosure protection applies to virtually all private sector employers and most colleges and universities.
There are limited exceptions to this rule. Under Sections 943.0585(4)(a) and 943.059(4)(a), Florida Statutes, a person must must make a truthful disclosure of his or her criminal history information (upon proper request) if he or she:
To seal a record in Florida, an applicant must meet the following eligibility requirements:
In addition to meeting the eligibility requirements for sealing a record, an applicant for expunction must meet two additional criteria:
Under Sections 943.0585 and 943.059, Florida Statutes, certain offenses are not eligible to be sealed or expunged, regardless of whether adjudication was withheld.
The offenses listed above are only disqualifying if there was a finding or verdict of guilt or delinquency, or if there was a plea of guilty or no contest. If the charges were dropped or otherwise dismissed, an applicant will remain eligible to seal or expunge.
Acquittal
A unanimous not guilty verdict.
Hung Jury
When a panel of 6 jurors cannot collectively vote for acquittal or guilt a mistrial is declared. The case may be dismissed by the Judge or prosecutor (depending on the split), the case may be re-filed and started over again or the prosecutor may offer a much better deal to the defendant to make the case go away.
Not Guilty Plea
A plea by the defendant claiming innocence of guilt.
Guilty Plea
A plea by the defendant claiming guilt.
Nolo Contendre
By issuing a plea of nolo contendere, or “no contest”, the defendant accepts the punishment without formally admitting that he was guilty. By doing this, he avoids the consequences of a guilty plea with regard to potential liability to other people for money damages.
Felony
A felony crime is punishable by one year or more in state prison. Sample felony crimes include drug possession/ trafficking/ burglury/ murder.
Misdemeanor
A misdemeanor crime is punishable by up to one year in county jail. Misdemeanor trials are held in the state’s lower court, sometimes referred to as County Court. (Names for these courts vary from State to State) A misdemeanor may include such crimes as drunk driving, disorderly conduct and shoplifting.
Arraignment
An arraignment is the process by which the defendant is read his rights and the list of charges against him is explained.
Pre-Trial Conference / Plea Bargaining
The pre-trial conference/plea 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.
Trial
The process by which a defendant is tried on charges and considered guilty or not guilty. Defendants charged with serious misdemeanors and felonies may be entitled to jury trials. Minor misdemeanor charges may be entitled to trial by judge. The rules differ state-by-state.
Sentencing
Once the defendant has plead guilty or received a guilty verdict by way of trial, he will be sentenced. Sentencing guidelines differ State-to-State.
Appeals
After a defendant has been found guilty by way of trial, the defense attorney may request a higher court to change the lower court’s decision.
Bail/Bond
An insurance policy to ensure the defendant appears at his next scheduled court date. It is cash or a cash equivalent. An attorney may bring a motion to reduce bail/bond at any appearance before the court. Bail/bond can be received by cash, check, property, or a bond, which is a guaranteed payment of the full amount of bail/bond. Once the defendant appears in court, the bail/bond money is refunded. In addition, bail/bond is sometimes waived if the court feels the defendant is a good risk, and therefore is released on his own recognizance.
Voir Dire
The process of selecting a jury through questioning by attorneys. This is the time when the attorneys may set the tone of the trial. Many cases have been won or lost in voir dire.
Determinate Sentencing
Some states provide specific sentences based on specific crimes.
Indeterminate Sentencing
Many states do not provide specific sentences based on specific crimes.
Law Office of Thomas A. Morse, Esq.
1330 SE 4 ave. suite G
Fort Lauderdale, FL 33316
All consultations are FREE!
After hours & weekend
appointments available.