Category: Blog

Almost every criminal defense matter consists of negotiations between the Prosecutor and the criminal defense attorney. These negotiations, commonly known as plea bargaining, are an attempt by the attorneys to resolve the case short of Trial by jury.

While everything is fair game in plea bargaining, the primary consideration is the strength of the prosecutor’s case, both legally and factually. Of secondary importance, but still relevant to all plea bargains is the character of the accused.

Outlined below is a break-down of these primary and secondary considerations that criminal defense attorney analyze and utilize in negotiating a criminal matter.

Legal Issues, Small & Big

Legal issues are problems the State may have with the manner in how its evidence was procured. These problems traditional arise via violation of a constitutional amendment (usually the 4th, 5th, or 6th), or by relevant statutory privilege.

For example, the Fourth Amendment guarantees a citizen the right to be free from unreasonable searches and seizures. A common application of the amendment in criminal matters, especially dui defense, is on potential “bad stops”.

In driving cases, a police officer may have stopped a criminally accused without justification. If the Judge agrees that law enforcement initiated an invalid stop, the Judge may suppress evidence leading to a dismissal of the case.

In plea negotiations, it is the possibility or probability of winning on these legal issues that give the criminal defense attorney leverage in negotiating deals. A prosecutor will be more inclined to amend to a lesser charge if there is a possibility or probability of a Judge dismissing the action for a legal deficiency.

The Facts of Your Cases: Can the State Prove It

Quite naturally, the criminal defense attorney must analyze the prosecutor’s ability to prove the case at hand.

The constitution requires the prosecutor bear the burden of proving its case beyond and to the exclusion of a reasonable doubt. Framed appropriately, the relevant question for the criminal defense attorneys is not the guilt or innocence of the accused, but the ability of the prosecutor to prove the case to the appropriate standard under law.

If the prosecutor has “holes” in his case, and may not succeed in front of a Jury, the criminal defense attorney will articulate this in his or her plea negotiations with the State. The prosecutor has a vested interested in obtaining a conviction. The prospect of losing a conviction entirely might be sufficient to encourage the prosecutor to offer a favorable deal to the accused.

Missing Witness or Evidence

Relatedly, the State might have missing Witnesses or evidence that make proving the case more difficult if not impossible.
Successful prosecution of certain crimes, like assaults and batteries, are often highly dependent on the testimony of the alleged victim. If the victim is uncooperative, or has moved so that the location of the witness is unknown, then the strength of the State’s case diminishes greatly.

The criminal attorney needs to be acutely aware of any witness issues with the State, and leverage these problems into a favorable plea bargain.

Your Criminal History

Your attorney can utilize your lack of criminal history to negotiate a positive deal for you. Conversely, if you have a criminal history that shows a propensity to commit criminal activity, be prepared for an aggressive State attorney to seek enhanced penalties.

A lack of criminal history might show the State Attorney that the crime alleged was a “glitch”, or a unique one time slip up.
For example, consider the case of the young man charged with one count of auto burglary and one count of possession of controlled substances. The auto burglary is the more serious charge, and if the State proceeds and ultimately obtains a conviction on the burglary, any resolution will likely have long term consequences on the young man.
In conclusion, your criminal defense attorney is concerned with both the prosecutors’ ability to “prove” his case and your character and past conduct.

The criminal attorney will analyze your specific case with your specific facts to determine which factors are most relevant to successfully resolving your case.

Guest post written by Christian Denmon, a Tampa Criminal Defense Attorney with Denmon & Denmon Trial Lawyers . Christian is rated “Pre-eminent” by the independent review site Martindale Hubbell, “Superb”(10/10) by AVVO, and was recently recognized by the National Trial Lawyers Association as a “Top 100” Trial Lawyer

Getting injured is a serious matter regardless of the situation, and it becomes even more important when you are injured in public, as a result of a car accident, or as the cause of some other person or entity.

If you have suffered any damage that required medical attention or a physical or mental recovery period, you may be entitled to recovering said damages from the other party involved. As an experienced personal injury lawyer in Savannah will tell you, if you have suffered injuries as the result of an accident, the first thing you should do is make your way to the nearest Hospital Emergency Room.

Whether that requires driving yourself, asking for a ride or calling the police, fire department, or ambulance, it is important to your case that you document the physical pain and distress as a result of your accident.

WHO PAYS MY MEDICAL BILLS WHEN I’M IN AN ACCIDENT?

Even if you will be receiving a settlement as a result of your auto accident or personal injury case, it is your responsibility to pay your medical bills. Prior to hiring a personal injury lawyer in Savannah, make sure you have a written contract with your attorney to determine how your lawyer will be paid. There are a number of different options on how to pay your attorney for a personal injury case. You can choose between a contingency fee, flat rate or hourly rate fees.

COLLECTING YOUR PERSONAL INJURY SETTLEMENT COMPENSATION

If the defendant in your personal injury case is insured, you will have to notify their insurance company of your injuries, if they have not already been informed, and they will most likely write you a check for the damages up to the limit of the insurance policy. If the defendant in your personal injury case is not insured, it won’t be this simple. You may have to talk to your attorney about collecting your judgement as personal injury lawyers may specialize in this area as well.

Have you been in an accident that required medical attention? Please feel free to give me a call or send me an e-mail for a free consultation.

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.