Law Office of Tim Powers
Misdemeanor: The Arraignment To Appeals Process
The defendant may plead guilty, not guilty or no contest. If the defendant pleads guilty or no contest, he may expect to be sentenced. Very few cases are dismissed at arraignment.
At an arraignment, it is possible for the prosecution to waive or eliminate the possibility of jail time for the defendant. If there is no possibility of jail time, the defendant may not be entitled to a court appointed attorney. In addition, the defendant may not be entitled to a trial by jury. In that case, the judge would be the trier of the facts as well as the law.
The defendant would be most likely tried by the judge.
Once the arraignment is completed, the defendant prepares for trial in Municipal Court.
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 extremely valuable.
- Remember that the defendant is innocent until proven guilty.
This involves a meeting between prosecution and defense. Topics discussed include plea bargain opportunities, strengths and weaknesses of the prosecution's case, pretrial motions and intangible factors of the case, such as the defendant's character and past history. Municipal Court Trial Each state has different rules for Municipal Court trials. 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.
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. In addition, in some jurisdictions the court may ask for a report from the probation department prior to sentencing the defendant.
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, degree of injury or financial loss, 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.
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.
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
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
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 law enforcement purposes. In addition, applicants campaigning for public office or applying for a federal job are required to make their conviction public even if it were expunged.
Facts about Expungements:
- 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 usually cannot occur if the defendant faces new charges.
- The federal law does not recognize state court expungement orders.
At the end of probation, the criminal record is reviewed.
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.