| Derik R. Girdwood, Attorney and Counselor at Law - "We Will Help" |
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If you are arrested for a serious crime then the first person you should talk to is a criminal defense lawyer. Call Today for a Free Consultation (586) 783-8095 75 North Main Street, Mt. Clemens, MI 48043 Located across from the Macomb County Circuit Court |
Q: My friend was arrested and the police did not read him his Miranda rights. Can the arrest be dismissed? A: No. The police are not required to read an arrested person Miranda rights unless the police are also attempting to elicit a confession and even then, the matter would not necessarily be dismissed but your friend's confession prior to the reading of his Miranda rights would be suppressed and not permitted to be told at a trial. Q: What is the typical court procedure if I am being charged with a felony? A: A felony usually involves the following court appearances: 1) The arraignment in district court whereby the judge reads the charges against the defendant and asks whether the defendant wants a court appointed attorney or will retain his or her own attorney and a bond is set by the judge; 2) Within 14 days from the arraignment the court will schedule a preliminary examination and the defendant must appear. The purpose of the preliminary exam is to determine whether there is probable cause (whether it is likely) that a crime was committed and the defendant committed the crime. The preliminary examination is much like a trial but it does not establish whether the defendant is guilty or not guilty, but only if it is likely that the defendant committed the alleged crime. Most of the time a district court judge will find it is likely the defendant committed the alleged crime and send the matter to circuit court which has jurisdiction to hear felony cases; 3) Within a month or so the defendant must appear in circuit court for a pre-trial conference. It is at this time your attorney meets with the circuit court prosecutor and depending on the facts of the case can offer the defendant a plea bargain, which may reduce the charges or cap the sentence or provide for probation. If the defendant avails himself to the plea bargain then the defendant must confess his crime to the judge. If the defendant chooses not to avail herself to the plea bargain the matter will be set for a trial; 4) If a trial results in a not guilty plea then the matter is dismissed but if the defendant avails himself to a plea bargain or is found guilty at trial then the next step is sentencing which will occur about a month after the guilty plea or trial conviction. Q: I was convicted of a felony crime 6 years ago and I heard I can get it erased from my record. Is that true? A: Yes, depending on the felony crime and if at least 5 years have passed and there are no other convictions on your record it may be possible to set aside the conviction so that you have no criminal record. MCR 3.925(F) Setting Aside Adjudications and Convictions. (1) Adjudications. The setting aside of juvenile adjudications is governed by MCL 712A.18e. (2) Adult Convictions. The court may only set aside a conviction as provided by MCL 780.621 et seq. You should consult an attorney regarding how this is to be done. Q: Why are some people sentenced to more time in jail or prison when both committed the same type of crime? A: The sentencing court considers many factors which can result in one person receiving probation and another person receiving prison time even though they are both guilty of the same type of crime. The biggest factor in the difference in sentencing is whether the defendant has a previous criminal record. Q: My friend pled guilty to a felony and wants to appeal, what do you think the chances are of having it heard by the Michigan Supreme Court? A: Probably not good. If your friend was convicted by a trial she would have a right to appeal to the Michigan Court of Appeals and then possibly to the Michigan Supreme Court. Since your friend was convicted by a plea, the appellate court may simply choose not to hear the appeal, unless the circuit court somehow really screwed up, and they rarely do. Q: My friend was convicted and got probation but has not done some things ordered by the probation department and now has a court hearing for a probation violation. Is this a serious matter? A: Yes, it is most serious. The consequence of violating probation may result in your friend being sentenced on the original charge he pled to and could result in a jail or prison sentence. One judge often stated that probation was like "grace". The defendant should have been placed in jail or prison but was instead given a chance to not be incarcerated provided he or she follow the probation rules. Any person with a probation violation should retain a lawyer. Q: My son was charged with a small amount of illegal drugs in his pocket and his lawyer told me may be eligible for 7411 or HYTA What is that? A: Fortunately, the law is almost forgiving for some first time offenders. 7411 is a statute whereby your son would have to plead guilty to possession (not delivery or manufacture) of the illegal drug and the matter would not result in a conviction if there are no other violations and he follows all probationary rules. 7411 is only used for illegal possession of drugs and is usually only granted once. Holmes Youthful Trainee Act (HYTA) is also a forgiving statute that provides that a person under the age of 21 who commits a non-violent crime and has no criminal record may also have no conviction on his record if there are no other violations and he follows all the probationary rules. The judge will probably inform your son that he gets only one bite at this apple, and this was it. Q: I don't want to tell my spouse I got another speeding ticket because our insurance rates will go up again. Should I get a lawyer to defend me? A: You can quietly pay the ticket and wait for a possible increase in car insurance or you can hire a lawyer who most likely will be able to lower the points or have the ticket taken under advisement, which means no points provided you do not get any more tickets for the following year. You will, however, be responsible for court costs and, of course, the lawyer fee. Q: My daughter, who is only 14, was arrested for shoplifting and now has a court date in the juvenile court. Will she have this on her record? A: An arrest is not a conviction but if she does plea to shoplifting she will not have the incident on her record, although courts will have a record of it. Most, but not all, juvenile (adjudications) convictions are unavailable to the public and to prospective employers so when she applies for a job and is asked if ever convicted of a crime she can safely answer "no" . The answers given above are intended to give you general guidance but it is always necessary to consult an attorney regarding your specific circumstances. |
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