"CRIMINAL WINS"

 

Contract Attorney Tucson Arizona
Arizona Criminal Law

INITIAL COURT APPEARANCE: After you are arrested by law enforcement for a felony charge, by law, you must be brought before a judge within 48 hours of your arrest. At the "initial" or first court appearance the judge will inform you of the charges; set your conditions of release; and inform you of your next court date.

CHARGES: The judge will generally tell you what specific charges are being brought against you at the initial court appearance. These are only allegations which are generally brought by law enforcement. These allegations must later be established by a finding of "probable cause" either through a preliminary hearing or indictment by a grand jury.

CONDITIONS OF RELEASE:

The judge will set your conditions of release in one of the following manners:

Own Recognizance (O.R.):
You are released solely on your promise to appear at your future court appearances.

Pre-Trial Services:
This is an agency run by the court to supervise persons released from jail who have pending criminal matters. This release is supervised and may include drug testing, curfew, no drinking alcohol, and no contact with alleged victims.

Third-Party:
A third party is responsible for making sure you appear in court.

Bond:
The court requires you to post cash or property before you are released from custody. Generally the more serious the charges the higher the bail amount.  If you fail to appear for court, the court may take the money posted. You may post the bond personally or use a bail bondsman. The bondsman will normally charge you a fee of 10% of the bond plus collateral equal to the total bond. Shop around for the best deal with the least restrictions.

NEXT COURT DATE (Felonies Only): The court will set a date for a preliminary hearing. If you are in custody, being held on bond or some other detainer, the court will set a preliminary hearing date within ten (10) days. If your are out of custody the court will set a preliminary hearing date within twenty (20) days.

PRELIMINARY HEARING: At a preliminary hearing, the prosecutor must present sufficient evidence to convince a judge that (1) a crime was committed; and (2) that it is more likely than not that you committed it. Preliminary hearings are generally conducted in the Justice of the Peace court. You have the right to be represented by an attorney at the preliminary hearing. At the preliminary hearing a judge listens to evidence presented by the prosecutor. Hearsay is admissible at a preliminary hearing. After the hearing the judge will make his decision based on the evidence presented in court. If the judge thinks there is probable cause [enough evidence to send the case to a higher court for trial] he will order that you be "bound over" to answer in Superior Court for the charges. At this point is is up to the prosecutor to file an "INFORMATION" which details the formal charges. Once this document is filed, it will be served upon you either in jail or sent to your last known address requiring you to appear in court for an ARRAIGNMENT.

GRAND JURY: In the larger counties in Arizona, preliminary hearings are not generally conducted. The reason for this is they take too much time and tie up valuable judicial resources. Instead, these counties use a GRAND JURY. A grand jury is a group of nine (9) or more persons chosen from the particular county which listen to evidence and decide whether (1) a crime was committed; and (2) that it is more likely than not that you committed it. Grand jury proceedings are secret. They are conducted by the prosecutor. There must be at least 9 votes finding probable cause before an indictment or "true bill" is issued. An indictment contains the formal charges against you. Once a indictment is handed down a NOTICE OF SUPERVENING INDICTMENT is issued along with a date for your ARRAIGNMENT. A notice of supervening indictment is a piece of paper which says you have been indicted by the grand jury and orders you to report to court for your arraignment. If you are still in jail this notice will be served on you and you will be brought to court by the jail officials on the date indicated. If you are out of custody, this notice will be sent to you by mail. YOU MUST APPEAR ON THE DATE AND TIME INDICATED OR THE COURT WILL ISSUE A WARRANT FOR YOUR ARREST.

THE ARRAIGNMENT:  Under Arizona law, you can be brought to trial only after an indictment, information or formal citation or complaint has been filed. An indictment, information or complaint is a document that states the charge(s) against you and alleges that your actions were unlawful.

Generally, most misdemeanors begin with a citation/complaint [a ticket] by a police officer, the arraignment date will be the appearance date on your citation/complaint. Misdemeanors, in the State of Arizona, are punishable by up to six (6) months in the County Jail and a fine of $2,500 plus applicable surcharges.

Generally, most felony charges begin with an arrest followed by an Initial Court Appearance; Preliminary Hearing or Indictment by Grand Jury. If you received a Notice of Supervening Indictment or Summons from the Court, your arraignment date will be the court date indicated on that document. In the State of Arizona, a FELONY charge is punishable by a prison sentence or probation plus a fine up to $150,000 plus applicable surcharges.

Before the Court can consider your case, you must enter a plea. There are three possible pleas to a criminal charge:

Not Guilty: A plea of "Not Guilty" means that you are informing the Court that you deny guilt and the State (Prosecutor's Office) must prove the criminal charge(s) against you. Under our American system of justice, all persons are presumed to be innocent until proven guilty beyond a reasonable doubt. On a plea of "Not Guilty," a pre-trial conference will be scheduled, followed by a trial setting. At trial, the State will be required to present evidence to prove all charges against you beyond a reasonable doubt. If you plead "Not Guilty", you must decide whether to employ an attorney to represent you. You may defend yourself, but no one except an attorney may represent you.

In certain types of cases, a court appointed attorney may be provided for you. In those cases, if you feel that you cannot afford an attorney and wish representation, you may fill out an application requesting that an attorney be appointed to represent you.

If an attorney is appointed to represent you, you may be ordered to contribute to the cost of your attorney.

If you choose to represent yourself, the rules of procedure will apply to you just as they would apply to any lawyer. You will be presumed to know trial procedure and the proper manner of presenting your case.

No Contest (nolo contendere)*: A plea of "No Contest", also known as "Nolo Contendere," simply means that you do not wish to contest the State's charge against you. Upon a plea of "No Contest", the Judge will enter a judgment of guilty. If you enter a plea of "Guilty" or "No Contest", you may be sentenced immediately following the Judge's acceptance of your plea.

Guilty: By a plea of "Guilty", you admit that you committed the act charged in the complaint(s), that the act is prohibited by law, and that you have no legal defense for your act. If you were involved in an incident where someone was injured at the time of the alleged offense or property was damaged, your plea of "Guilty" could be used later in a civil suit for damages as an admission by you that you were at fault or were the party responsible for the injury.

No witnesses are present at arraignment and no testimony will be taken. The judge at arraignment will not grant a defendant's request to dismiss any charges. Instead, you must decide upon and enter a plea to the charge against you.*

*As a general rule, in Arizona, in Superior Courts in Pima & Maricopa Counties, you will not be permitted to enter a No Contest or Guilty Plea at Arraignment. The reason for this is it simply takes too much time. The case is generally sent to Superior Court and a Guilty or No Contest plea can be entered after consultation with your defense counsel. This next court date in Superior Court is generally thirty (30) days from the date of arraignment.

DIVERSION PROGRAMS:  For some offenses (such as minor in possession) the prosecutor may work out with the defense attorney an alternative to the normal trial process. 

PRE-TRIAL CONFERENCE:  You and your attorney will be given an opportunity to meet with a Prosecutor to review the facts supporting the State's criminal charges against you. If you have not already been provided with a settlement offer by the Prosecutor's Office at arraignment, you may be provided with one at the pre-trial conference (PTC). At the PTC, you are entitled to review a copy of the complaint(s), any written police reports, accident reports, and any other evidence that the State intends to use at the trial. At this time you must disclose the names and addresses of witnesses you will be calling and any evidence to be presented. If such disclosure does not occur prior to trial, generally the witnesses and evidence cannot be used at the time of trial.

Witnesses do not attend the pre-trial conference, and no testimony is taken. You are not required to discuss the facts of your case with the Prosecutor. The Prosecutor represents the State and will do everything he can to convict you as charged. Anything you say to a Prosecutor may be used against you in further proceedings.

You have three options at pretrial conference.

  • You have the option of accepting the Prosecutor's settlement offer, which routinely contains the range of sentence you will receive (upon acceptance by the Judge).

  • You can reject the Prosecutor's offer and change your plea of "Not Guilty" to "Guilty" or "No Contest" directly to the Judge without agreeing on a sentence with the Prosecutor. Following the acceptance of your plea, you will be sentenced by the Judge within 30 to 45 days. You will be referred to the probation department for preparation of a pre-sentence report for the sentencing judge.

  • You can maintain your plea of "Not Guilty" and have the case set to trial.

THE TRIAL:  Depending on the alleged offense, you will be entitled to a jury trial or non- jury trial.

You are entitled to hear all testimony introduced against you, however, if you do not appear the trial can be held without you and you may be found guilty in your absence.

You have a right to cross-examine any witness who testifies against you. You have a right to testify on your own behalf. You also have a Constitutional right not to testify. If you choose not to testify, your refusal cannot and will not be used against you in determining your guilt or innocence. However, if you do choose to testify, the Prosecutor will have the right to cross-examine you.

You may call witnesses to testify on your behalf. If they will not come voluntarily, you have the right to have the Court issue subpoenas for witnesses to ensure their appearance at trial. Requests for subpoenas to be issued should be made well in advance of your trial so that you have time to have the subpoenas properly served.

SENTENCING:  The amount of any jail sentence, fine, fee, restitution, or probation assessed by the Court is affected by the facts and circumstances of the case and your prior criminal record. Mitigating circumstances may lower the amount of prison time, jail, fine, or probation. However, aggravating circumstances may increase the amount of prison time, jail, fine, or probation.

For some offenses, there are statutory minimum sentences which the Judge must impose. In no instance for a misdemeanor will sentences exceed the maximum levels of $2,500 fine plus surcharges and/or 6 months in jail and/or 5 years probation.

Payment of Your Monetary Sentence

If you are ordered to pay a fine, fee, and/or restitution, payment in full is expected on the day of sentencing. Payment on any financial sentence may be made by cash, check, money order, credit card. If you meet certain financial requirements, you may be allowed some time to pay. However, a time payment fee will be added to the amount that you owe. Failure to comply with a payment schedule will result in additional Court proceedings and possible sanctions for non- compliance. This may include, but is not limited to a warrant being issued for your arrest, the suspension of your driver's license, referral to a collection agency, the attachment of your Arizona income tax refund, and any other legally appropriate collection actions against you, your income or your property. If the Court refers your account to a collection agency, any additional collection fees will be added to your account balance.

Restitution: You may be required to pay restitution for any damage or economic loss suffered by a victim. All restitution payments must be made to the Court for disbursement to the victim. If you have an insurance company which will pay the restitution portion of your sentence, it must make payment directly to the Court or provide proof of payment so that the Court can accurately record payment of this portion of your sentence.

APPEAL: Following a trial, you have the right to appeal a final judgment to a higher court. If you have been convicted of a MISDEMEANOR you must file a Notice of Appeal within fourteen (14) days of your conviction. If you are convicted of a FELONY you must file a Notice of Appeal within 20 days of your conviction. The Judge in your case will advise you of your appeal rights following sentencing in your case. If you decide to appeal, you will be advised as to what fees apply, if any.

In ruling on your appeal, the appellate court will review the issues of law arising from your trial or hearing. Your appeal will not result in a retrial of the facts and you will not be allowed to present new evidence or testimony on appeal.

POST CONVICTION RELIEF PETITION "RULE 32": Under Rule 32 of the Arizona Rules of Criminal Procedure person convicted of a crime and generally after an appeal has been completed may petition the trial court for relief from their conviction and sentence. This procedure is governed by very specific rules which control what type of issues may be presented.

 


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Law Office of Alfred McDonald, P.C.
4578 East Camp Lowell Drive Tucson, Arizona 85712
Phone: 520.884.5201  /  Fax: 520.884.5079
e-mail:
notguilty@arizonadefender.com

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Copyright 2003 Alfred McDonald, P.C.
Tucson, Arizona Attorney Practicing in the Areas of DUI Law & Criminal Law