Generally, a misdemeanor is punishable by up to one year in county jail. Trials for misdemeanors are held in the state’s lower court, occasionally referred to as Municipal Court. (Names for these courts vary from state-to-state) Examples of misdemeanor crimes include petty theft, public intoxication or vandalism.
Felonies begin in the state’s lower court system but may move up to the state Superior Court, or higher court. Common felony crimes include murder, rape, or armed robbery. Punishment typically takes the form of one or more years in a state prison.
The arraignment procedures for misdemeanors and felonies are almost identical. The only difference between the arraignment procedures is that in the misdemeanor arraignment process, a pre-trial in Municipal Court is held. With a felony arraignment, the next step is a pre-preliminary hearing or a preliminary hearing. After which the date for trial is set. (Note: Some jurisdictions do not hold a pre-preliminary hearing).
A defendant needs to have established representation prior to the arraignment. A public defender may not be the best choice as he/she may not have time to review the case prior to the arraignment or, even worse, may not be assigned the case until arraignment. A private attorney, on the other hand, can meet with the defendant before the arraignment, review the case, and provide the defendant with step-by-step options prior to the arraignment process.
What the defendant should do after an arraignment:
Acquire a qualified Fort Lauderdale defense attorney.
Have a firm understanding of criminal law procedures so you do not compromise your defense because of ignorance of the criminal process and your rights.
Ask important questions and seek advice of your attorney.
Help your attorney prepare your case by exploring all available options before making a decision.
A pre-trial conference entails a meeting between the prosecution and the defense. Strengths and weaknesses of the prosecution’s case, intangible factors of the case, plea bargain possibilities and pretrial motions are some of the topics discussed during this conference. Each state has different rules for Municipal Court trials. In some states, the defendant may actually choose between a trial by jury or judge. States also differ in the number of actual jury members.
At a sentencing hearing, the judge determines the length and type of punishment for the defendant. Requests for a lighter or stiffer sentence are presented by witnesses. The defendant may make a statement to the court. A report from the probation department may be considered as well in some states.
Some things to consider regarding sentencing:
Sentencing guidelines may limit the judge’s discretion but it is ultimately the judge who determines sentencing. The 8th Amendment to the U.S. Constitution explains that punishment may not be cruel or unusual. In some cases, a judge may decide that a lesser punishment is justified according the good public record and professional responsibilities of the defendant. On the other hand, a previous criminal record, use of a dangerous weapon(s), degree of injury or financial loss, and the type of conviction may persuade the judge to provide a harsher punishment. If the defendant is not planning on appealing the case, this may be an appropriate time to acknowledge responsibility and regret in order to convince the judge to give a more lenient punishment.
These defects in procedure may include any of the following:
- Instructions given by the judge to the jury were improper.
- The prosecution made improper comments to the jury.
- The jury was tampered with.
The timeline of the appeals process varies from state-to-state. Some post conviction tactics to get relief for the defendant include:
- Motion for Acquittal
- Motion For New Trial
- Motion For New Sentencing
- Appeal To Appellate Court
- Appeal To State Supreme Court
- Appeal To U.S. Supreme Court
Like more elements of the legal process, the process of sealing off or expungement differs from state-to-state. Expungement is a legal term for destroying a criminal record. If a criminal conviction is expunged it is deemed to never have occurred. However, in some unique cases, even an expunged record is still open for law enforcement purposes, such as when a defendant is again convicted of a crime and his/her former record must be reviewed for a judge to use in computing the defendant’s sentence.
- Only some convictions are eligible for expungement and this differs on a state-by-state basis. Most sexual offenses and crimes of violence are no longer eligible for sealing or expungement in any state.
- Convictions usually cannot be expunged until one year has passed and the defendant has completed serving the sentence.
- If a defendant is facing new charges then an expungement is not allowed.
- Federal law does not recognize state court expungement orders.
The review of a criminal record takes place at the end of probation.