Criminal Law

Just because an individual has been charged with a crime, and thus labeled a “defendant,” does not mean that he or she has broken the law. That is merely a title used to describe someone who is alleged to have committed a crime. Even so, mistakes are made and individuals will run afoul of the law. This does not mean that a person should simply be railroaded or rushed to judgment. Everyone deserves a second chance, but more importantly every one deserves top-notch representation from an experienced attorney.

Areas of Practice

Stages of Your Criminal Case

Michigan separates crimes into two categories: (1) misdemeanors and (2) felonies. The distinction between a misdemeanor and a felony is the length of possible incarceration if convicted. In the case of a misdemeanor the possible punishment is up to one year in jail. To be a felony, the time of possible incarceration is more than one year in prison. Although, the line dividing misdemeanor from felony may be simple, the way each type of case is processed by the courts is significantly different.

This article will discuss the differences between misdemeanors and felonies.

Misdemeanors: Misdemeanors are a class of crimes that are processed from beginning, commonly known as “arraignment”, through completion of the case—which could range from dismissal, acquittal, or sentencing—in the District Court for the locale where the crime occurred. Some common examples of misdemeanors are drunken driving, domestic violence, disorderly person, trespassing, and retail fraud or shoplifting.

Felonies: Felonies are crimes that begin much like misdemeanors—with an arraignment in District Court. That is where the similarities between misdemeanors and felonies ends. In a felony, the next step after Arraignment is the “Preliminary Examination”.

Preliminary Examination: The second step for felony cases is a “Preliminary Examination”, also commonly called “a probable cause hearing”, where the prosecution must prove a crime was committed and the defendant is the person who probably committed the crime. In Michigan, the use of a Grand Jury has largely been replaced by the use of a Preliminary Examination. The Preliminary Examination is a statutorily created right for the criminal accused. MCLS § 766.1 et seq; see also MCR 6.110. MCLS § 766.1 provides as follows: “The state and the defendant are entitled to a prompt examination and determination by the examining magistrate in all criminal causes and it is the duty of all courts and public officers having duties to perform in connection with an examination, to bring it to a final determination without delay except as necessary to secure to the defendant a fair and impartial examination.”

During the Preliminary Examination both the prosecution and defense have the right to call witnesses. MCLS § 766.12. This is important because in 2018, the Michigan Supreme Court clarified the duty of the examining magistrate by stating "the magistrate ha[s] not only the right but, also, the duty to pass judgment not only on the weight and competency of the evidence, but also [on] the credibility of the witnesses." People v. Anderson, 501 Mich. 175, 178, 912 N.W.2d 503 (2018). In light of the Michigan Supreme Court’s decision in People v. Anderson, the magistrate conducting a Preliminary Examination must weigh the credibility of the witnesses, which can lead to a case being dismissed or bound over to Circuit Court.

If the case is bound over to Circuit Court, then the accused will have an Arraignment on the Information where the pending charges are read in open court. At this point in the proceedings, defense attorneys and prosecutors may engage in negotiations to resolve the case. Alternatively, if a plea bargain cannot be reached then the accused would be entitled to a trial.

Trial: Every accused in the United States has a full panel of Constitutional rights, including: 1) the right to be presumed innocent until proven guilty beyond a reasonable doubt; 2) the right to be represented by an attorney; 3) the right to remain silent; and 4) the right to a trial by jury. The first three of these rights attach to the accused at the time of arrest and continue throughout the proceedings. The last of the Constitutional rights is to have a jury determine guilt or innocence.

The breadth of issues confronting a criminally accused at the time of trial are too great to completely cover in this article. However, there is one major point to consider when charged with a felony--there is nothing more important in life than your freedom. If you are facing your first felony charge, then you may or may not be facing serious prison time. Conversely, if you are facing a serious felony charge or are a repeat offender, then you are absolutely in danger of losing your freedom for a long time. In either instance, remember these things: (1) don’t talk to anybody about your case; (2) carefully evaluate your options with the only person you can talk with—your lawyer; and (3) don’t forget you will have a life when this is behind you. With the help of the right attorney, you can and will overcome the challenge in front of you.

Sentencing: The last step in the legal process following conviction is sentencing. Michigan utilizes an indeterminant sentencing scheme where the sentencing judge affixes the mandatory minimum to be served by the defendant to the maximum sentence allowed for the crime convicted. Once a convicted person completes the mandatory minimum sentence, he or she is eligible for parole. Whether or not a person receives parole is determined by the Michigan Parole Board.

In Michigan there are four goals to sentencing policy: (1) reformation of the offender, (2) protection of society, (3) punishment of the offender, and (4) deterrence of others from committing like offenses. People v. Snow, 386 Mich. 586; 194 NW2d 314 (1972). A sentencing judge is charged with considering these factors while developing an individualized sentence for the offender.

While there may be some discretion in how sentencing judges apply the goals of sentencing, they are required to score and consider the offender under the Michigan Sentencing Guidelines. MCLS § 769.34. The Michigan Sentencing Guidelines use variables based on the offender’s record and the offense to create a recommended sentence. The Michigan Sentencing Guidelines are not binding on the sentencing court, although they often are instrumental in the actual sentence imposed.

Appeals: If you have been convicted of a felony, find yourself having gone all the way through trial and sentencing, convinced that a reversible error has occurred in your case, then you have a Constitutional right to an appeal. Within 42 days of your sentence, you have the right to file an appeal with the Michigan Court of Appeals. If you are unsuccessful at the Michigan Court of Appeals, then you can file an application, or request, for the Michigan Supreme Court to consider your case. You may even find yourself in the unique position of filing a Petition for Writ of Certiorari to the United States Supreme Court.

If you need an attorney for criminal defense or appeal, then contact Arnold E. Reed & Associates, P.C.—remember your life may depend on it.