Author: productionnye

Many of my clients do not live here in the Savannah area. Some don’t even want to come back after their arrest. Don’t worry, because I resolve many client’s case without them coming back to court through a plea in absentia.

The plea in absentia is a document that permits a client’s attorney to present a two page affidavit to the court in the client’s absence. This documents sets forth the following:

• the charges against the client
• the rights given up by pleading guilty or no contest
• the terms of the plea agreement
• satisfaction with attorney services

Pleas in absentia are only for misdemeanors or city ordinance violations. If you are charged with a felony, you more than likely will have to come back to court with your lawyer unless something is worked out ahead of time.

The one downside to a plea in absentia is that the court generally requires the entire fine amount at the time the plea is entered into court. Normally, a defendant has the life of probation to pay any a fine. If you can afford it, then a plea in absentia is a viable option for you if you live out of town.

The First Offenders Act, also referred to as a withheld adjudication, is one of the most important criminal statutes for defendants on the books. The Act is codified at O.C.G.A. §42-8-60. FOA allows a defendant to plead guilty to a particular charge, serve the sentence imposed by the judge, but then not have a conviction upon successful completion of the sentence. Essentially, the court accepts the guilty plea, but withholds actually adjudging a defendant guilty. FOA can only be used once in a person’s life.

FOA is generally used to avoid a felony. A felony conviction will a persons civil liberties like owning or possessing a firearm, voting, receiving government benefits, and holding public office. It can also substantially impair a persons ability to obtain employment. FOA allows a person to avoid these harsh penalties. However, one can not use FOA for very serious felonies like: murder, rape, sex related crimes.

FOA can also be used for misdemeanors, although not usually advised. Usually, one would want to save FOA for a felony charge. Using FOA is truly a tactical call for an experienced lawyer and truly understanding the client. FOA can be used for almost all misdemeanors. The main misdemeanor that FOA can not be used for is a DUI change. Georgia statute specially precludes the use of FOA for DUI offenses.

FOA can be a double edge sword for a defendant. While is can save someone from a felony conviction, a defendant can also lose it if they violate a condition of probation or parole. If a person commits a probation or parole violation, and probation or parole is revoked by a judge or the parole board, the defendant can be resentenced to the original crime and serve the remainder of the sentence in jail.

FOA is a powerful tool for a defendant, but it must be taken seriously. A defendant must successfully complete the sentence before receiving its benefit

Federal sentencing has often been referred to as draconian or “dark ages” type of justice. Penalties are harsh, and probation is almost unheard of (although not impossible). Almost all federal statutes are felonies. Parole has been abolished in the federal system, so defendants generally do at least 85% of their sentence. After incarceration, a defendant is generally sentenced to a period of supervised release which is intense probation. Violations of supervised release will generally send a defendant back to jail for a substantial period of time.

Sentences are generally dictated by the United States Sentencing Guidelines (“USSG”). These are rules set by congress which attempt to standardize sentences in different federal districts/areas of the country. Recent caselaw has made the guidelines “advisory” to the court, so they are no longer mandatory. Nevertheless, every court continuance to sentence most defendants based off the guidelines.

The USSG calculate sentences by looking at two things: the crime; a defendant’s criminal history.

–The Crime: Every criminal federal statute is noted in the USSG and given a number called a Base Offense Level “BOL.” The higher the number, the more jail time is associated. This number can go up or down. It can go up (points added) for factors that make the case aggravating. The BOL can go down for things like pleading guilty, cooperation with the government, and role in the offense. The name of the game is to get this number as low as possible.

–Criminal History: the worse a defendant’s criminal history, the more time they are looking at. Each conviction is given points depending on its severity. You can also get points for committing offense while on parole. Some minor crimes do not count, but most do. As in BOLs, its important to score as low as possible on the criminal history scale.

Once a BOL and criminal history are calculated, one looks at the USSG chart. The chart consists of ranges of months of incarceration which are determined by the BOL and Criminal History Category.

It is imperative that if you are being federally prosecuted, or a target of a federal investigation, you hire an attorney skilled in the USSGs and federal statutes. It really can make a significant difference in a potential sentence. This area of the law in very complex and experience can make all the difference.

The beginning of the formal criminal process generally begins with an arrest. This can happen either by a warrant (authorization to “seize” you by law enforcement) or by an on-the-spot arrest (generally issuing a citation or citations). So now you are in jail. What now?

For minor misdemeanors resulting in arrest, some bail amounts are pre-set at the jail. That means you do not have to appear before a magistrate to have a monetary amount set. However, for most misdemeanors and all felonies, you will appear before a magistrate judge to determine whether to release you from jail pending court and under what conditions of release (generally money and/or no contact orders). This generally happens between 24 to 48 hours of arrest.

You are entitled to have a lawyer present at this hearing to argue for your release under “reasonable conditions.” This is even more important for serious crimes. Important practical considerations to the bail question are:

• Criminal History: the worse your history, the less likely you are getting out or the highest your bail amount.
• Ties with Community: it helps to live, have family, and work in the local area.
• Severity of the Crime: obviously, the more severe the crime, the more difficult it is to obtain bail. Nevertheless, even people charged with serious crimes are granted bail, so don’t through the towel in with a serious charge.
• Hire a lawyer! In my opinion, showing up with a lawyer shows the District Attorney and Judge that you mean business regarding the charges and are prepared to defend yourself. Lawyers can be convincing people to judges if they are on the fence.

So if bail is set, what then? You can post your BOND two different ways. First, you can post the entire amount of the bond. At the conclusion of your criminal case, you will get all of this money back! Second, if you cannot post your entire bail, then you can use a bondsman. You generally will pay the bondsman 10% of the bail amount, and they will secure the rest with the court under “bond.” Friends and family members can post bonds for you, as well.

What if bail is not set? It depends. Call our office immediately to discuss, because there are many different aspects that may affect future bail requests.

Military Personnel: Generally, your chain of command or MP’s can come and get you immediately. This is called being returned to military control. This could save you some money, but alert your command to potential misconduct.

Probation is a very real sentence. Probation puts a defendant under the court’s strict supervision, through a probation officer, for a certain period of time. Most of the time, whether dealing with a felony or misdemeanor case, a probation sentence means you avoid jail time. Many defendants do not take probation seriously, though, and end up having the probation officer file a complaint against them seeking to revoke the probation. If this occurs, you can be assured that the defendant will spend the remainder balance of the probated sentence in jail. A lawyer can represent you at your probation hearing and argue against revocation. Here are a few tips to avoid common pitfalls for defendants on probated sentences.

• Not paying fines. Many defendants are revoked on probation for not paying their court ordered fines and court costs. It is FAR better to pay something than not pay anything at all. The court wants to at least to see an effort. Therefore, make sure you pay something!
• Don’t commit new crimes. This seems like a no-brainer, but it’s probably the most common reason for revocation. Traffic violations generally won’t get you revoked, but other misdemeanors or felonies can. If you are charged with a new crime while on probation, contact an attorney immediately to prepare to fight the revocation!
• Report to probation! Don’t miss your probation meetings. Probation officers are busy folks and the more you comply with probation, the more likely they are going to treat you favorably. No matter how bad things get in your life, always make sure you communicate with your probation officer and let them know what’s going on. Often times, they may have solutions to those problems.

District attorneys often try to use probation revocation hearings BEFORE a trial on new allegations. The standard of proof is only a preponderance of the evidence! That’s the same as the civil court standard of “more likely than not” versus the much heavier criminal standard of “beyond a reasonable doubt.” Don’t be railroaded by this tactic!

Finally, defendants are often arrested on a probation revocation warrant requested by the probation officer. A defense attorney can seek a probation bond. If granted, this will prevent you from sitting in jail for weeks or months at a time waiting for a probation revocation hearing. An attorney can often force the State to schedule the hearing.