Today I will continue my series on relevant legal topics by explaining every person’s Rights when they are charged with a Misdemeanor Criminal Offense. Otherwise known as your Advice of Rights.
In a nutshell, nothing can proceed in a District Court without a Defendant being fully advised of his or her rights pertaining to the case. All of the players involved (Prosecuting Attorney, Defense Attorney, and Judge) will work diligently to make sure that these rights are reviewed on what is called an Advice of Rights Form or that the Judge verbally advises you in open court. Your Attorney will review these Rights in depth with you and advise you of the best course of action based on the facts of your case.
1. Basic Misdemeanor case Rights:
a. To Plead Guilty or not guilty or stand mute.
b. To have a trial by judge or jury
c. To have the assistance of an attorney
You have a right to Trial by Jury AND right to assistance of legal Counsel pursuant to the Sixth Amendment of the United States Constitution. The Supreme Court has applied the protections of the Sixth Amendment through the Due Process Clause of the Fourteenth Amendment.
2. You have the right to an attorney appointed at public expense if you are indigent and if;
a. the offense charged requires a minimum jail sentence, or
b. the court determines that if might sentence you to jail
3. You may have to repay the expense of a court appointed attorney.
#2 and #3 go hand in hand. If you cannot afford to retain an attorney, and are deemed unable to afford one, the court will provide paperwork to request a court appointed attorney. Furthermore, if the charged offense requires a jail sentence an attorney will be provided. The majority of the time (almost always) you are required to repay the expenses of a court appointed attorney.
4. If you have a trial, you have the following rights:
a. To call witnesses to speak for you at trial.
b. To see, hear, and question all witnesses against you at trial.
c. To be a witness for yourself or to remain silent.
d. To be presumed innocent until proven guilty beyond a reasonable doubt.
5. If you plead guilty or no contest and your plea is accepted, you will not have a trial of any kind and will give up the rights listed in item 4.
The Confrontation Clause of the Sixth Amendment governs the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. You also have an absolute right to remain silent (“Plead the 5th”) at trial and do not have to take the stand in your own defense. The prosecuting Attorney cannot use this against you in any way. Also, the beyond reasonable doubt burden must be proven by the prosecuting attorney. The Defendant can have NOTHING said in their defense and still be acquitted if this burden is not met by the prosecutor.
Lastly, a guilty or no contest plea will waive all of the aforementioned rights in #4.
6. You have a right to be released on bond
Your attorney will make a motion on your behalf pertaining to bond. The Judge will consider several factors such as criminal history, seriousness of the offense, the individual’s flight risk, and if they are a threat to the public when determining bond.
7. If you are on probation or parole; a plea of guilty (or no contest) or a finding of guilt by judge or jury may result in a violation of probation or parole.
8. You can be sentenced up to 93 days in jail and fined up to $500.00 plus costs.
In certain situations, such as a High Court Misdemeanor, there is a possibility of more jail time.
9. Possible sentences and license sanctions
Certain Secretary of State license sanctions apply depending on the type of case. For example, an Operating While Intoxicated Plea will result in a 30 day driver’s license suspension.
10. You have 21 days to appeal this sentence to the Circuit Court.
11. If you require special accommodations to use the court because of disabilities, please contact the court immediately to make arrangements.
In addition, the Judge will often times ask you a series of questions in open court prior to entering into a plea agreement. These include if anyone has forced you to plea, if anyone has promised you anything other than what is in the plea agreement, are you pleaing freely and voluntarily, and if you are satisfied with your Attorney and their services.
Feel free to contact me if you have any questions pertaining to your Rights or any other type of legal question.