When a person is charged with a crime, there are certain protections that apply from the U.S. Constitution.  There are also certain procedures that are similar between the different jurisdictions. Here is a brief description of what happens when a person is charged with a crime.

In certain situations, a person may be charged with a crime before they are even arrested.  In these situations, a judge will issue a warrant for the person’s arrest and then police officers will attempt to locate the person who is the subject of the warrant.  Once the police are able to locate the person and the arrest is made, the police must provide the person a copy of the warrant that clearly states the charge for which they are being arrested. The copy of the warrant does not need to be provided to the person at the time of the arrest, but the person does need to be provided a copy of the warrant by the police within a reasonable amount of time afterward.

After the person is placed under arrest, they are taken to the police department for “booking.”  The “booking” process consists of taking the person’s fingerprints as well as completing other procedural requirements.  Once the “booking” process is complete, the person will then be placed under police custody pending a court hearing.  This hearing will typically take place within 48 hours.
Once the person is taken into police custody pending a court hearing, they have a Constitutionally protected right to speak with an attorney.  The person will be allowed to contact an attorney while in police custody.  The person should also have at least a brief opportunity to meet with their attorney before their initial court hearing.

At the court hearing, the charges against the person (the “defendant”) will be read by the judge.  Unless the defendant was arrested with a previous arrest warrant, this may be the first time that they are told the charges against them.  It is the judge’s responsibility to make sure that the defendant understands the charges against him/her.  Then the judge will ask the defendant to enter his/her plea for the crime being charged.  The defendant can enter a plea of “not guilty,” of “no contest,” or of “guilty.”

Even in the situation when the defendant is actually guilty, the defendant can still enter a plea of not guilty if he believes that there is not enough evidence to prove his guilt.  In either situation, when a defendant enters a plea of not guilty, that will lead to a trial.  At trial, the government will have to prove beyond a reasonable doubt that the defendant is guilty of the crime that they are charged with.

During the trial, it is the jury’s responsibility to decide whether the defendant is to be found guilty or not guilty based on the evidence presented by both the defendant and the government.  In some cases, the defendant may waive their Constitutionally protected right to a jury trial, and the judge will decide if the defendant is guilty or not guilty based on the evidence that is presented by both sides.  This is called a bench trial.  Whether the defendant pleads guilty or not guilty or no contest, the defendant should always consult with their attorney about whether they should waive their right to a jury trial and have a bench trial.
If the defendant is found not guilty of the crimes charged at trial, he/she will be released from custody.  If the defendant is found guilty at trial or if there is no trial because the defendant entered a plea of no contest or of guilty, then there will be a sentencing hearing where the judge will sentence the defendant.
Prior to the sentencing, the court may perform necessary evaluations of the defendant.  For example, if the charge is “Driving Under the Influence,” the defendant may be evaluated to help the court determine if the defendant has a substance abuse problem.  The court will also make a pre-sentencing report, which is basically an investigation into any prior criminal history of the defendant.  This information further helps the judge determine an appropriate sentence for the crime charged.

At the sentencing hearing, the defendant and the government may have an opportunity to present individuals to speak to the court on behalf or against the defendant about what factors they feel the court should take into account in determining a sentence. These individuals can include the victim of the crime, the victim’s family, the defendant, the defendant’s family, and any other interested party.

After both sides present all of the evidence, the judge will then consider the evidence and take into account any of the sentencing requirements.  Then the judge will enter a sentence for the defendant.  If the defendant has been in custody during the whole court process for a relatively minor crime, then the defendant may have already served the jail time that is imposed by the judge.  In that situation, the defendant will not have to serve any additional jail time.  If the crime is of a more serious nature then the defendant may have to serve even more jail time than the time already served.  Certain criminal sentences may involve more than just the defendant serving jail time since the defendant may be ordered to pay fines as well, or give restitution back to the victim, or undergo treatment for substance abuse or mental problems, or perform community service, etc.

Anyone who is charged with a crime should definitely hire an attorney with experience in criminal defense to represent them in their case.  This is the best way to protect your rights and obtain the best possible outcome in their case.

Since certain criminal convictions could become a basis for removal lawful permanent residents and aliens, it is extremely important to consult an immigration attorney prior to accepting a plea or entering into an agreement with prosecution in a criminal case.

POST CONVICTION RELIEF

What is Post-Conviction Relief?

When the appellant completes the entire direct appeal process, there is yet another way for the appellant to challenge his/her conviction.  The next available step in the process is called “post-conviction relief” or PCR.  In the PCR process, the appellant is called the “petitioner.”

How Does the Post-Conviction Relief Process Work?

In a direct appeal, the appellant challenges the legal rulings that led to the conviction and sentence, and the entire process is based on the record that was created at the trial court level.  On the other hand in a PCR proceeding, the petitioner may raise new claims.  Also, there is a requirement that the petitioner must initiate PCR proceedings within two years of the completion of his/her direct appeal.  The petitioner begins the PCR process by filing a “PCR Petition.”  The PCR petition lays out a “claims of error” and thoroughly explains what relief the petitioner seeks.  In response to the PCR Petition, the State files an “Answer Petition” responding to the petitioner’s claims.

One of the most common and frequent PCR claims is that the defense attorney did not adequately represent the petitioner during the original trial and/or direct appeal process.  For this reason, the court always appoints or the appellant hires a new attorney for representation in the PCR proceedings.

PCR proceedings are very common in immigration removal cases since certain criminal convictions could become a basis for removal lawful permanent residents and aliens.  It is extremely important to consult an immigration attorney prior to accepting a plea in a criminal case or proceed with PCR.

Attorneys of Mayzel Law Group will assist you to make am intelligent decision on your criminal case and to get a good result on your immigration case.  Do not delay your meeting with us until it is not too late and it is still possible to correct your situation.