
Attorney practicing in criminal law
and DUI since 1982 in San Diego, California
|
I've been charged with a crime...
what now?
| Click on subjects for more information
Although the procedures may differ somewhat depending on whether you have
been charged with a felony or misdemeanor and whether you are in state,
federal or juvenile court, the initial appearance is basically the same.
It will involve a brief appearance before a judge wherein a plea of "not
guilty" is entered and a denial as to any specific allegations that
may have been filed. At this hearing, the issue of bail will also
be addressed.
Bail top
of page
Every person charged with a crime is entitled to a hearing to determine
whether a bail should be set and, if so, in what amount.
Some factors a judge will consider include:
- Length of time in the community
- Family ties to the community
- Prior record or lack thereof
- Any failures to appear in court (including traffic tickets!)
- The nature of the charges
A judge may grant a release without requiring any bail ("own recognizance"
release) or may set a bail at a certain amount.
Once set, a bond may be posted in various ways:
- An individual may post the entire amount of the bond with the court.
At the end of the case, assuming the individual made all required court
appearances, the bond would be refunded in its entirety.
- You may post the bond through a bail bondsman. The bondsman
will charge 10% of the total bail as his fee and this will not be refundable.
It will be necessary in most cases to have collateral for the other
90% of the bond, as the bondsman will be putting his money up for you.
Click
here for a bail bondsman.
- You may post property that has equity at least two times the amount
of the bail. This is done in a written bail motion and the property
will be tied up until the criminal case has been finalized.
Please visit the "Bail" page for more information on Bail.
Court Hearings
top of page
In a felony case (any crime where punishment could involve over a year in
prison), one would have basically the following court appearances:
- Initial arraignment (plea of "not guilty")
- Bail review
- Plea bargaining
At this hearing, your attorney, the district
attorney and the judge sit down and try to work out a favorable disposition.
If an agreement is reached, a plea of guilty is entered and the case
is continued for sentencing. If the parties are unable to agree,
the next hearing is the preliminary examination.
- Preliminary examination
Here the district attorney will put on a shortened
version of his case against you. He/she will most likely not call
all the witnesses in the case, as this is not a formal trial.
Although the defense has the opportunity to present its case, this is
usually not done at this hearing. You will also have the opportunity
to cross examine any of the witnesses against you.
A judge does not determine guilt or innocence
and the burden of proof is not guilt beyond a reason of a doubt, like
at trial. At this hearing, the judge simply decides if he/she
has a "strong suspicion" that a crime was committed and that
you were involved in the commission of that crime. Assuming that
this burden is met, you are "bound-over" for trial.
- Arraignment
Much like the initial court appearance, this
again involves the formal statement of a "not guilty" plea
and a denial as to any allegations. Also, all future court dates are
assigned.
Motions
Depending on the facts of the case, certain
motions may be filed, such as illegal search and seizure, discovery
or motions to set aside the earlier judge's bound-over ruling.
Plea bargaining
Again, this appearance is similar to the earlier
plea bargaining session. However, by this time the district attorney
will have had ample time to evaluate the case. Therefore, if the
case appears stronger than originally thought, the offer may be worse
than at the earlier plea bargaining session. On the other hand,
if the evidence is not that strong, the offer may improve.
Again, if the offer is accepted, a guilty plea
is entered and the case is set for sentencing. If the parties
are unable to resolve the matter, it is set for trial.
- Trial
A jury of twelve people is selected to hear
the evidence in the case. They must unanimously agree beyond a
reasonable doubt that you are guilty in order to convict you.
There are cases, however, where it may be to one's advantage to waive
trial by jury and have the evidence heard by the judge on the case.
Sentencing top
of page
If one pleads guilty or is found guilty after trial, the
case is set for sentencing. The various options that are available
for sentencing are as unique as the individuals and the cases. It
would, therefore, be too numerous to list every option that one could raise.
However, in every case, a person is referred to the probation office where
a probation officer investigates the case and makes a recommendation to
the judge as to an appropriate sentence.
What Happens After a Conviction?
top of page
In most cases, after either a plea of guilty or a finding of guilt after
trial, the following options may be available:
Motion for new trial OR Motion to withdraw guilty plea
These two motions must be addressed on a case
by case basis, but both motions attempt to set aside the conviction.
- Appeal
Again, the facts of each case must be examined to determine if one can bring
an appeal and, if so, whether it would it have merit.
- Modification of sentence
It is possible in some cases to come back before the sentencing judge
and ask for modifications on some of the terms and conditions of probation.
- Expungement
In some cases, after a person has successfully completed the terms and
conditions of probation, it may be possible to appear before the court
and have the conviction expunged from your record.
|
|