What decisions do I get to make as a criminal defendant?

Initially, when you get arrested there is one important decision that you get to make that will determine how much control you have over your case as it filters through the system.  First and foremost, you get to decide as a criminal defendant whether or not you want to hire counsel.  If you chose to represent yourself you will be responsible for making every decision along the way.  This is a very dangerous position to be in unless you have had significant legal training.  Even lawyers hire lawyers when needed as they know it is better to have a qualified advocate speaking on your behalf.

If you decide to hire counsel, your attorney, if they do their job correctly, will exercise all of your rights on your behalf.  This includes filing appropriate motions and documents with the court to preserve issues, obtaining evidence to prepare for your case, and ultimately keeping you informed along the way.  The ethics rules in this state allow an attorney to make most of the decisions on your behalf throughout this process.  Your attorney will/should seek your opinion on many issues.  However, most pretrial action such as whether pretrial motions are filed, hearings on those issues are heard, or particular aspects of investigation are conducted are activities left solely within the sound discretion of your lawyer.

The next decision that must be made by you is whether you want to take a negotiated plea that your attorney has worked out or whether you want your case to go to trial.  Your attorney will advise you through this process but ultimately it will always be your decision.  The way I explain this to my clients is:

I am going to propose two paths for you to take.  I will tell you the potential risks and rewards of both of those paths.  Once you have all the information, you tell me which path you want to take and I will do everything in my power to achieve the goal we are looking for.

There have been times that I have advised a person to go to trial and they decide they cannot take the risk.  Under those set of circumstances, we do not go to trial.  On the other hand, there have been a handful of times that I have advised a client it is not in their best interest to put their case in the hands of a jury; however, they were adamant that they wanted their day in court.  Under those set of circumstances, those clients had their case heard by a jury of their peers.  It is a very difficult decision to make at this stage of the representation and your attorney should be able to give you all the information you need that will assist you in making the decision that is best for you at that time.

The last decision you get to make as a criminal defendant presents itself once you have made the decision to go to trial.  You don’t get to decide how the case gets tried, what objections are made, or even what evidence is presented.  The only thing you have control over is whether or not you want to testify.  This is a right that neither a judge nor your attorney can take from you.  Obviously, when making this decision, you should heed the advice of counsel when discussing your options; however, in the end, it will always be your decision.

The system is set up so that a qualified person is making most of the strategic decisions on your behalf.  Hire counsel that you can trust to make these decisions along the way.  We have a tremendous amount of trial experience and are perfectly positioned to help you throughout whatever legal issue you may be going through.  Please, don’t hesitate to call our office today at (770) 945-2320.

Can my conviction be expunged?

Expungement is the process by which all the records associated with your arrest are “destroyed” and taken off of your history.  When negotiating a dismissal in a case, our office generally requests that the State allow for an expungement as well.  Generally, there is no objection from the State allowing this to happen.  However, at least once a month our office gets a call from someone that took a plea in a case many years prior asking if we can help them with an expungement.  Most often, what happens is the person didn’t contemplate the impact that a conviction could have on their future and when they hit the roadblock years later, they want the problem fixed.  So, can a conviction be expunged later?  The answer to this question is almost always NO and there is an easy explanation as to why this is the case.

 

Expungement is an extraordinary remedy.  When you apply for an expungement, there is a three part request that it submitted.  There is one section that is filled out by the Defendant that is requesting the expungement.  Once that is filled out, the paperwork is handed over to the arresting agency for them to fill out all appropriate information that the GBI will need to complete the expungement, if it is approved.  Finally, the paperwork is sent by the arresting agency over to the prosecutor’s office for approval.    Long story short, there is not a prosecutor office that we are aware of that would approve the expungement of a case where a Defendant accepted responsibility for the offense and was convicted of the crime.  It simply does not make sense.  Further, it makes no sense to expunge the arrest of an offense that a Defendant was convicted of.  There is no valid reason to eliminate the criminal history of a person who admitted to what they did.

 

Therefore, if you are charged with a crime, don’t take the “path of least resistance” and plead guilty in to your case in the hopes that you will be able to “get it expunged later.”   Ninety-nine percent of the time, there is no post conviction relief to get a charge off your record.  Contact our office immediately so that we can ensure you exercise all options that may be available to you.  

What Happens to My Bond Money?

So, you made it out of jail…and in just a shade under a couple thousand dollars!!!  Bonds can be expensive.  Throughout our career, we have seen bonds as low as a $300 and as high as $750,000.  The amount of the bond depends on many different things which could be the subject of a blog post itself; however, in this issue we will answer a question that we get asked by 80% of our clients: When do I get my bond money back?  Whether or not you get your bond money back depends on one thing, did you actually post the bond or did you use a bonding company. 

 

Because bonds can be very high (and let’s face it, no one has an “I got arrested” savings account) there are companies out there that have relationships/contracts with local sheriff’s departments allowing them to bond you out of jail.  Most of these companies charge you a fraction (10-15%) of what the actual bond amount is.  Therefore, if your bond is $10,000, you will agree to pay ABC Bonding a fee of $1,000 to sign onto your bond so that you can get you out of jail.  That company then has a pecuniary interest in ensuring that you show up to court and will often check in with you to make sure you plan to appear when notices are sent out.  If you have utilized one of these companies to get you out of custody, the money that you paid them is not a refundable fee.  Therefore, the 10% charge that you paid ABC Bonding is money that they get to keep and that is how that business makes money. 

 

Alternatively, there are people out there with the means to post their own bond without having to use a bonding company.  Therefore, if your bond is $5,000 and you happen to have $5,000 at your disposal, you would pay the local sheriff’s department that money plus some jail fees and other administrative charges.  Under these set of circumstances, when the time is appropriate you would receive the $5,000 that you paid to be released from custody.

 

When you receive this money depends on several factors.  Generally, this money is held in a trust account monitored by the Clerk of Court.  When your case is closed out, either by a plea, dismissal or jury verdict, the Clerk of Court will take note of the final disposition and cut a check to be mailed to the address on file of the “principal” (the person who paid the bond).  Thus, the bond money is not returned until the case is completed.  Alternatively, defendants are given a choice of allowing the bond to be paid towards the fine.  Therefore, if after disposition a fine is due to the Court, for example, in the amount of $1,000, at the permission of the principal the bond can be used to pay that amount and that which is left over will be returned to the appropriate person. 

 

If you have more questions about your bond and would like to discuss your case further, do not hesitate to contact our office today.

 

(770) 945-2320

Can I post bond if I have been arrested for new charges while on probation?

One of the biggest complaints I get from friends and family members of clients involve the issue of bond when their loved one is sitting in custody.  Under most circumstances, a defendant is innocent until proven guilty and will be allowed to remain out of custody on bond so long as they don’t pose certain risks that the Court believes are at issue. 

 

However, if a person is on probation at the time that they are arrested on new charges, there is an added complication.  Probation can actually put a “hold” on that person.  What that means is a person may actually be able to make bond in their new case; however, due to the hold that has been placed on the defendant by probation, they will not be released until they are taken before the Court in the jurisdiction that they are on probation and their revocation issues are dealt with. 

 

Often, probation officers want to know if the defendant is guilty of the new allegations; however, guilt on the new charges only has to be proven by a preponderance of the evidence or by conviction in the new case.  When deciding how to proceed, probation can do one of three things.  First, they can have a full hearing presenting evidence of the new charges and the defendant’s culpability regarding those charges.  The Court then uses the preponderance standard in determining whether the defendant/probationer committed the act as alleged.  Second, the probation department can hold the defendant in custody for a period of time to see if the new charges are disposed of and use that disposition as a measure of what to do with their revocation.  Third, under rare circumstances, the probation department or Judge will agree to a probation bond and will allow the defendant to remain out of custody until they are brought back before them for a revocation.

 

If you have a loved one in custody and they are being held by probation without bond, call our office to see what may be done to expedite his/her release.