Sequence Of Cases

(The content below was transcribed from an interview done with Acacia Law. We think you'll find it much easier
and more enjoyable to read this way.)

Interviewer: What's the sequence of a case? A person is charged, they go through a trial and then they are convicted. What happens next? Are they sentenced next or do they go on probation?

Acacia Law: What happens is this; the case is going to resolve one of three ways. The state is going to dismiss the case outright, or the municipal or city court will dismiss the case outright.

The second way to resolve the case is through what's called a plea agreement. The third way to resolve a case, actually, there is more than three ways, the third way to resolve a court case is to do what's called plead guilty to the charges straight up to the court. They say 'straight up' because what they mean is there are no terms or conditions that the court is bound by in the plea agreement.

The person pleads straight to the judge, pleading guilty to the charges as alleged and then the court will make a finding. The fourth way is to take a case to trial. Either a bench trial to the court or a jury trial. And so what happens is that under those circumstances... I lost my train of thought again. I'm sorry, I just had the flu for two days I'm just . . .

Interviewer: It's all right. So those are the different ways that a court case will go towards resolution.

Acacia Law: So after you've fit through one of the canals in order to get to the close of the case, the next stage is, in fact, sentencing.

Acacia Law: When you are dealing with municipal court or you are dealing with misdemeanors, the maximum that you can do for incarceration is six months in jail. There are three classes of felony; Class 1 misdemeanors, Class 2 misdemeanors and Class 3 misdemeanors. They all have no more than six months in jail for Class 1. For Class 2 I believe it's four months and for Class 3 I believe it's 30 days tops in jail.

And so basically that's in a nutshell what happens in misdemeanors. In felony court, or the superior court, where you have cases that are charged with felonies are alleged, it's different.

You have, first of all, a sentencing that is going to be more sophisticated to the extent that in those types of sentencing you're going to have individuals who are creating from the probation department, what are called pre-trial services reports, the acronym for them is PSR reports. That means pre-sentencing reports. They are done by the adult probation office. Now they create a report which will essentially outline what the facts of the case were, what roles the defendant played in the events. It will go through and report what his or her prior history is, whether it be prior convictions or prior behaviors, and they make a recommendation to the court.

What happens normally with the court is that, well, at least the way I handle it and everyone does it differently is that, even if I have a favorable pre-sentence report, it doesn't necessarily mean that the judge is going to go along with it. They are not forced to go along with any recommendation from the probation department in their written pre-sentence report.

All they have to do is make a finding based on whatever factors are under the Statue. So, when it comes to pre-trial memos, they carry weight, but they are not the final arbiter on the person's fate.

But one of the things that you have to understand when you are dealing with felonies is that technically, under the statute, and the statute is quite clear on this, except for the Prop. 200 cases that we previously discussed concerning marijuana and other task eligible programs, you have a situation where you have the individual is facing prison time and what is called the presumptive sentence, or normal sentence for that crime.

So, for example, if you are charged with a Class 2 felony in this state, then the first thing that has to be assessed is what are the sentencing ranges. Well there's typically there's three ranges, and then there's a total of five ranges for a category. I'm just using Class 2 here as one example.

Under Class 2, if it is an offense which is deemed non-dangerous, then basically you're sentencing chart would look something like this. The normal term should be five years. The maximum should be ten. The minimum should be four years.

The mitigated, or what they call the super-mitigated which is the lowest amount of time in prison you can do is three years. The maximum of ten years is not the actual outside limit. The outside limit is what's called the aggravated term, or 12.5 years in the case of a non-dangerous Class 2 felony. That's assuming that the person has no prior felony convictions.

Now what the court can do, and the way you get probation is that on certain cases, like non-dangerous cases and if the person has no prior felony convictions, then the court will use the following language. The court will essentially say, 'I am suspending the imposition of sentence' and the reason they're saying that is so that what they're conveying is that they are suspending requiring the person to go to prison. I'm suspending the person's requirement that they must to go to prison and in lieu of that I am placing them on probation'.

Now what a lot of people don't know is that even if you are placed on probation for a charge you can do up to one year in the county jail as a term and condition of that probation. So even though you might not go to prison, you can still do up to a year in jail in order to be, basically, well, it's a punishment that's set up as part and parcel of taking probation because even the class felony, a Class 6, has a normal sentence of 1 year in prison, and so they figure that under the circumstances, one year in jail for someone who would otherwise have to go to prison on say a Class 2, for five years, that's a compromise with the state, essentially.

Interviewer: So probation can be instead of jail time or it can be less jail time plus probation or it can be 'all probation,' but still include a little bit of jail time. All of those things.

Acacia Law: To be clear, you can be placed on probation with a term of jail up to a maximum of 12 months. Now some plea agreements have in there that the person must do at least six months, but they don't have to do 12 months, and leave that within the discretion of the court. And, so, probation doesn't mean that you are getting out of being in custody at all. It is something that is utilized as a means of punishment in conjunction with giving the person the benefit of probation as opposed to prison time.

Interviewer: So you can be in jail, but on probation at the same time.

Acacia Law: Absolutely. In fact it's not uncommon. I have a case that I just finished up just a couple months ago, wherein the person has been in custody since the start of the charge because it was a non-bondable charge. He was given a year as a term and condition of probation, a year of jail and he was sentenced last month and he still has four months left on his one year in custody, which he was given by the court until he can get out. So that person is on probation, but is also in custody.

Now, technically, what the probation department will deem and what the court will accept, is that the probation itself doesn't start until the person is released from custody. One of the things they always tell defendants in these situations is you must report in to pre-trial Services within the next three business days or something to that effect and if they don't they are in automatic violation of their probation.

So that is, again, something that I see regularly. We address it accordingly and, bottom line, the ability to work within the parameters of those particular plea agreements is an art in and of itself, which I've had great success with, but it is stressful and difficult for the people who are involved, who are actually facing the time.