Law Office of Tim Powers
Felony: The Arraignment to Appeals Process
The arraignment in a felony trial follows the same process as in a misdemeanor trial. Bail and identity are established, charges are ascertained and the attorney of record is confirmed. An arraignment is a virtual formality prior to trial. Very few cases are dismissed at arraignment.
Five things the defendant should do after arraignment:
- Ensure he has qualified legal representation.
- Understand thoroughly the criminal law process from arraignment to appeal. Defendants often compromise their defense because of ignorance of the criminal process and their rights.
- Ask the attorney questions every step of the way. Seek advice of the attorney. In the criminal process, the defendant is the one who stands to lose the most. Ask questions frequently and be certain they are answered.
- Assist the attorney in preparing the defense by understanding every option available. Explore all options before making a decision. Researching the situation is invaluable.
- Remember that the defendant is innocent until proven guilty without a reasonable doubt.
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.
At the preliminary hearing the judge determines whether sufficient evidence exists to send the case to the upper court for trial. The judge reviews 1) Whether there is probable cause to believe a crime was committed. 2) Whether there is probable cause to believe the person in front of the court is the one who committed the crime. Rarely does a judge overturn the prosecution and dismiss the case. In fact, the prosecution or judge can add additional charges to the case at this hearing. The length of a preliminary hearing varies by state. It may last three hours. It may last three questions.
Six things to expect at the preliminary hearing:
- Preliminary hearings are shorter than trials.
- The preliminary hearing is not a finding of fact.
- The goal of a preliminary hearing is to screen the prosecution's case.
- The prosecution is only required to show "probable cause" at the preliminary hearing.
- The preliminary hearing will be conducted in front of a judge. No jury will be present.
- Although the defendant may be held to answer for trial, which does not mean the defendant is guilty.
- Neither the prosecution or defense will present their whole cases; they want to save their case strategies for the trial.
- Cross-examination of police officers or witnesses may occur.
Superior Court Arraignment
The defendant is arraigned and pleads guilty, not guilty or no contest. At the arraignment, the identity of the defendant is confirmed, bail is established, charges are ascertained and an attorney of record is confirmed.
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.
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.
Sample motions the defense attorney can file at a pre-trial conference:
- Suppress evidence
- Dismiss information and complaint
- Compel discovery
- Sever counts
- Speedy trial
- Modify or reduce bail
- Bill of particulars
- Reduce charges
- Change of venue
- Strike a prior conviction
- Preserve evidence
- Examine police file
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 win. The trial begins with the prosecution's opening statement. The defense attorney may also present an opening statement at this time. 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 attorney and judge decide on specific instructions to the jury
- The judge instructs the jury on rules
- The jury deliberates
- The jury submits their verdict
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.
7 things to consider regarding sentencing:
- The judge almost always determines punishment.
- The judge may be required to follow specific sentencing guidelines.
- The eighth amendment to the U.S. constitution provides that punishment may not be cruel or unusual.
- Factors such as no criminal history, a good public record, and professional or personal responsibilities may persuade the judge to provide a lighter sentence.
- A previous criminal record, use of a dangerous weapon, and the type of conviction may persuade the judge to provide a harsher sentence.
- Judges almost always give repeat offenders stiffer sentences.
- 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.
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. The appellate process is primarily limited to correcting flaws in procedure and not to change a trial courts finding of fact. It is important to recognize that the appeals process may only begin after the defendant has received the final verdict. The timeline of the appeals process varies from State-to-State.
However, time limits do exist. They are very short – often less than 30 days. Don't lose your right to appeal! At the very least, a notice of appeal must be filed as soon as possible. The sample motions in an appeal process may include:
Motion for Acquittal Motion For A 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.
The expungement process differs from state-to-state. Expungement is a legal term for sealing the criminal record. By having a criminal conviction expunged, the conviction will be deemed not to have occurred. However, in some cases, even an expunged record is still open. For instance, an applicant campaigning for public office and applying for a federal job will have their conviction made a public record.
Facts about Expungement:
- Even when a conviction has been expunged it can still be used against the defendant's sentence if the defendant is again convicted of a crime.
- Not all convictions are eligible for expungement. Laws differ state-by-state.
- In many states defendants cannot expunge felony convictions or sex offenses.
- Convictions usually cannot be expunged until one year has passed and the defendant has completed serving the sentence.
Expungements cannot occur if the defendant faces new charges.
If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton County criminal case or arrest in Denton County, contact the offices of Tim Powers today. There is no charge or obligation for the initial consultation. 940.580.2899.
*Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific legal question you should directly consult an attorney.