A MISDEMEANOR IN GENERAL:

Misdemeanor law involves defending/prosecuting crimes that are more serious than petty offenses, but much less serious than felonies.  Misdemeanors sentences can typically result in such punishments as a fine or a jail sentence, not exceeding one year.  If a jail sentence is imposed, it is served at a local city or county jail rather than a state or federal prison (penitentiary).  Most people want to avoid convictions of misdemeanors because it leaves a criminal record on the person’s file.  No one wants a criminal conviction on their record no matter how trivial it may be.  There are also some misdemeanors that are serious due to the collateral consequences of the conviction.

THE PROCEDURE OF A MISDEMEANOR:

THE ARREST:

ARREST IN PROGRESSThe first stage of a misdemeanor is the arrest. A person is arrested based on allegations made by either the police or a citizen.  We, as defense attorneys, always advise and hope that people enforce their right to remain silent during the stages of the arrest.  The person will sometimes be granted release after booking, some will make bail, some will stay in custody.  Whatever the case may be, the most important part is to remain silent (calls at the jail are recorded, visits are recorded, mail is read by officials).

THE ARRAIGNMENT:

After arrest, the person is brought before a magistrate for arraignment within 48 hours (this can vary from county to county and if it is a weekend or a weekday).  If the arraignment is not given within 48 hours (excluding weekends and holidays), the person must be released from custody.  The district attorney then has typically one year to file charges in the case.  At the arraignment the court informs the person of the charges against him/her and determines whether the person has an attorney or wishes to represent themselves.  Time is typically given so that the person may obtain an attorney and the case will be continued for appearance of the attorney and the entry of a plea.

A plea is then entered (guilty, not guilty, not guilty by reason of insanity and jeopardy are some of the options).  Time is waived, or not waived (you have a right to have your trial begin within 30 calendar days if you are in custody and within 45 calendar days if you are out of custody.  It is also at this time that a release on your own recognizance can be obtained, and/or the reduction of bail.

THE PRE-TRIAL CONFERENCE:

A pre-trial conference is a court appearance set prior to a jury trial between the DA and Defense Attorney (and some times the Judge).  Depending on the complexity of the case and availability of witnesses, there may be several of these hearings held before the jury trial.  The purpose of this hearing is to see if there is a possible resolution to the matter that works for both parties.  The resolution truly depends on the facts of the case and the terms of the offer.  The important part is that the client is always in control of resolving or not resolving his/her case.

PRE-TRIAL MOTIONS:

Pre-trial motions are brought by both the prosecution and the defense in order to resolve final issues and establish what evidence and testimony will be admissible at trial.  A typical motion for the defense in a misdemeanor case would be a motion to suppress evidence.  These motions are typically brought to challenge the Constitutionality of the police officer's actions in obtaining evidence from the accused.  If this type of motion is won by the defense, the district attorney is typically left with no evidence to proceed with the prosecution of the case and is forced to dismiss the case against the accused.

TRIAL:

Trial consists of either a court trial, heard by the judge only, or a jury trial.  The accused in a misdemeanor prosecution has a constitutional right to a jury trial and this is nearly always recommended as ALL 12 jurors must be convinced of the defendant's guilt or innocence where as in a court trial, only the judge must be convinced.  At trial, the judge or the jury will either find the defendant guilty or not guilty.  The prosecution bears the burden of proof in a criminal trial.  Thus, the prosecutor must prove beyond a reasonable doubt that the defendant committed the crime(s) charged.  A jury or judge makes the final determination of guilt or innocence after listening to opening and closing statements, examination and cross-examination of witnesses and jury instructions.  If the jury fails to reach a unanimous verdict, the judge may declare a mistrial and the case will either be dismissed or a new jury will be chosen.  If a judge or jury finds the defendant guilty the court will sentence the defendant.

SENTENCING:

In a misdemeanor case, a defendant has a right to be sentenced no sooner than 6 hours and not more than 5 days after guilt is determined.  This right can be waived in order to better prepare for sentencing or in order to determine sentencing immediately.  During the sentencing phase of a criminal case the court determines the appropriate punishment for the convicted defendant.  The court will listen to argument from both the district attorney and the defense attorney before determining a sentence.  In determining a suitable sentence the court will consider a number of factors; including the nature and severity of the crime, the defendant's criminal history, the defendant's personal circumstances and the degree of remorse shown by the defendant.  The court CANNOT consider the fact that the defendant pursued the constitutional right to a trial.

APPEAL:

An individual convicted of a crime may ask that his or her case be reviewed by a higher court.  A notice of appeal must be filed within 30 days of the date of sentencing.  A defendant may appeal any legal ruling in the case from the denial of a suppression motion to a guilty verdict at a jury trial to sentencing on the case.  However, only a mistake of law may be appealed.  If appellate court finds an error in the case or the sentence imposed, the court may reverse the conviction or find that the case should be re-tried or that the defendant should be re-sentenced.See our appeals section for more detailed information.