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The criminal process
usually begins with an arrest at the scene or shortly thereafter by a
police officer. Arrests can
also be made much later than the time of the alleged criminal activity,
for example after police or a citizen investigates a matter, gathers
information, and presents it by affidavit or a hearing to a Magistrate
Court, who then may sign an arrest warrant.
After the arrest, an individual is taken to jail and “booked
in”. The booking process
includes taking fingerprints and getting general background information to
process into the state and national criminal data bases.
This is what most people are referring to when they ask, “Will
this be on my record? And for
how long?”
For many offenses,
there will be pre-set bond amounts that the jail will use, and a person
who has been arrested will simply call a bonding company to purchase a
bond on his behalf. In such
instances, the cost of obtaining a bond through a bonding company is 10%
to 15% of the face amount of the bond plus a small administrative fee.
For example, if bond is set at $10,000, purchasing a bond from a
bonding company will likely cost $1,000, which is non- refundable.
There are other ways to provide a bond, such as a cash bond or
securing the bond with property, which matters can be discussed with an
attorney. However, for
several offenses in order for a bail to be set, a person must go before a
Superior Court Judge.
If you are in
confinement and cannot make bond, then you are entitlted to a preliminary
hearing to determine the basic evidence of the case so a judge can
ascertain if there is probable cause to continue to hold you.
Usually, if the warrant has already been signed, and if there was
sufficient evidence of a crime, then the preliminary hearing will not lead
to a dismissal of the cahrges. But
there are events that can transpire, or more evidence can be discovered,
that reveals that there was not sufficicent evidence of a crime, and in
some cases a preliminary hearing may reveal thi spoint.
Also, a preliminary hearing often is a way to get a preview fo the
evidence the State is relying on to hold a person in jail, which can be
invalueable in the later defense of the charge.
If a person is charged
with a criminal offense, and that person is on probation at the time of
the new criminal charge, then an added problem is created: a potential probation revocation. Once a probation officer learns of the new charge, he or she
will generally file an application for a probation warrant to arrest the
individual for not following one of the most important conditions of all
probation: not violating the
law. It should be clearly
understood that the probation revocation charge is separate and distinct
from the new criminal charge. Perhaps
the most important point to be made about a probation revocation warrant
is that under Georgia law a person is not entitled to a bond for a
probation revocation, and one may stay in jail until a probation
revocation hearing is held.
POST
ARREST/PRE-ARRAIGNMENT
After a person is
arrested and bonds out of jail, there is often a long time period that
could be anywhere from weeks to months before the appropriate prosecuting
office makes a charging decision. In
man cases, there is a possibility of weeks or months going by before the
prosecutor makes a charging decision and takes the case to the gransd jury
for an indictment or files formal document known as an accusation.
Once there is an indictment or accusation, the case is then before
the appropriate court. It is
usually in a person’s best interest to have legal counsel during the
time period from arrest and before arraignment so that the attorney can be
reviewing the evidence and investigating the matter before the charging
decision is made. It is in a
person’s best interest not to be at an information disadvantage.
Once formal charges
have been made by the prosecutor, either by accusation or indictment, a
person appears before the court to answer the charges alleged at
arraignment. At arraignment,
generally, a person will enter a plea of guilty or not guilty.
It is also the time at which most important motions must be filed,
and it is critical that a person is represented at arraignment to preserve
and protect essential rights.
If motions are filed at
arraignment, the court will set them down for a hearing at some later
date. Motions hearings can
occur anytime before the case goes to trial.
Usually the motions involve challenging the legality of the search,
the legality of the arrest, or admissibility of any possible statements
obtained by the police. It
may also include issues related to search warrants, and compliance with
state statutes regarding the crime charged.
Many times the Court’s decision on the motion will be critical in
making a decision as to how best to proceed in the criminal case.
At every stage in the
process, legal representation involves looking at the specific facts of
the case and negotiating with prosecutors about an appropriate disposition
to the case. This is
generally referred to as plea negotiations in which the goal is to assess
the case and come to a resolution that the state and the person charged
with the crime can agree with. Often
times these agreements are reduced to writing in what is known as a plea
bargain, but these plea bargains are not binding on the Court.
If a judge does not agree to the terms and conditions of a plea
bargain, a person has the right to withdraw his or her plea, and continue
on to a trial. Generally
speaking, once an attorney has had the opportunity to fully investigate
the case looking into the important evidence and law involved, an attorney
should begin considering what plea options are available.
It is important to know what the maximum possible sentence is, but
it is also important to have an attorney who understands what the State is
seeking in the case, so the attorney can advised as to the cost and
benefits of taking a plea or going to trial.
However, ultimately the decision whether to plea guilty or go on to
trial in a case is solely the decision of the client.
A plea is a vaiver of all of your constitutional rights.
Usually after the
motions have been heard, and the case has been pending for several months,
the case will return for what is known as calendar call or a status
conference. This is generally
just a list of cases on the Court’s criminal trial calendar, and the
Court calls both the State and the Defense to make an announcement as to
where the case stands. This
point in time is generally the last point in time at which the Court will
accept plea agreements. If
the case goes beyond calendar call, often times in many courts, courts and
prosecutors will not entertain plea agreements, which means that if a
person pleads guilty after calendar call the sentence will be “in the
blind” and the judge will sentence as he or she deems appropriate.
At calendar call, one can often get a good idea of which cases will
actually be reached and which ones will likely have to return for another
date.
A person is entitled to
a trial on the criminal charges. There
are 2 types of trials: A
bench trial or a jury trial. There
are many factors to consider when deciding which type of trial a person
wants, and generally this decision should be made early on in the process
of legal representation. If a
case is going to trial, most juries are selected on the Monday morning of
a particular trial calendar, and the case is tried sometime during that
week. It is possible that a
case can appear on a trial calendar numerous times, before a jury is
actually selected for that case, because there are many cases that need to
be tried and only so many can be tried in a week. If a case is not reached, it is simply continued to the next
appropriate trial calendar.
At trial, the State
puts forth its evidence, and must prove a person’s guilt of criminal
charges beyond reasonable doubt.
Generally, the jury’s verdict ends the case.
However, if there is a conviction, a person has the right to file a
motion for new trial, and also a right to appeal to challenge legal errors
that occur during the trial of the case.
It is important to have legal counsel throughout the criminal
process so as to protect your rights throughout the process, and insure
that any legal errors are properly objected to at trial and preserved for
purposes of appeal.
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