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"CRIMINAL WINS"
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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.
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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.
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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