As A Criminal Defense Attorney, What Factors Do You Consider When Advising A Client On Whether Or Not To Take A Plea Offer?
The decision about how to provide the appropriate defense to my client is something I discuss with my client early on. Every client has a different interest, whether it be wanting a speedy resolution of the case, avoiding collateral consequences that could affect their employment, maintaining the right to possess firearms, safeguarding their immigration status or avoiding custody.
Some clients have time to devote to a lengthy diversion program and may want to resolve their case in that manner, which does not involve a plea. In some respects, it is better to resolve a case through diversion than to have it dismissed. While completing a diversion program might take some time and effort, it will result in no record of arrest.
What Might Plea Offers Look Like For First Or Second-Time Offenders?
A person who has committed a first-time misdemeanor offense may be eligible for an alternative sentence in lieu of jail time, such as a work program, ankle monitor, house arrest, or community service. In addition, they may be eligible for a diversion program, whether it be military diversion, mental health diversion, drug diversion, or primary caregiver diversion. By taking advantage of any of these diversion programs, a person can avoid a conviction entirely.
If the case involves violence or firearms, the accused may be subject to increased punishment on a first offense. If it is a misdemeanor, they might be placed on house arrest or incarcerated for a period of less than one year, and placed on probation.
For a first-offense felony that did not involve death, great bodily injury, or sexual assault, an individual may be eligible for probation, which would result in a resolution of the case of less than a year in custody or house arrest. The severity of offense dictates the maximum and minimum fines and the period of incarceration.
If an individual is facing multiple offenses and priors, the punishment will be enhanced in some respects. For a felony, there may be a state prison sentence, and for a misdemeanor, the individual runs the risk of violating probation and facing incarceration in the county jail.
Do Most Criminal Cases End Up Going To Trial Or Settling Outside Of Court?
The vast majority of criminal cases resolve without going to trial, by way of a plea to a lesser charge, dismissal, or a successful completion of a diversion program.
If Someone Has Been Convicted Of A Criminal Charge In California, When Will Sentencing Generally Take Place?
If a misdemeanor case is resolved by a guilty or no-contest plea (which is in fact the same as a guilty plea) in advance of trial, then sentencing will occur at the time of the plea. This is because the plea is typically negotiated in advance.
In a felony case, the sentencing will typically occur within 30 days of the date of the plea in order to allow probation ample time to prepare a pre-sentence report so that they can weigh in on what they believe the sentence should be.
If a misdemeanor or felony case goes to trial and the defendant is found guilty by a jury, a sentencing date will typically be set within 30 days of the verdict.
What Should Someone Know About Probation?
There are two different types of probation: formal probation and informal probation. Formal probation is essentially like being in custody within one’s home, and requires the individual to meet with a probation officer. A person on formal probation is subject to close monitoring by a probation officer, similar to being in custody within one’s home. The terms of a formal probation are case-specific, but could include drug or alcohol treatment, drug or alcohol testing, domestic violence classes, parenting classes, theft awareness classes, or counseling.
If someone has been placed on felony probation or probation for an aggravated misdemeanor, DUI with priors, or domestic violence, then they will likely be placed on formal probation and will need to meet with their probation officer immediately after court and as directed by the court. Probation on a felony will typically run anywhere from three to five years. According to a recent change in California law, misdemeanor probation should be for no longer than one year unless directed otherwise by statute. A caveat is DUI probation, which by statute, has a probation term of three to five years.
An individual who is placed on informal probation will have no requirement to meet with a probation officer. However, they will be required to obey all laws, pay the necessary fines and fees, and comply with any other terms of probation imposed by the court. For a DUI, the terms of probation generally include completing a DUI class. In other cases, community service or submission to a certain number of days at an alternative sentencing bureau may be required, but the individual will not be subject to rigorous scrutiny by a probation officer. Informal probation is definitely less onerous than formal probation.
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