Criminal statues in the State of Michigan involve two types of incarceration. Initially, there are misdemeanors punishable by one year of incarceration or less. Secondly, and more importantly, are felonies that are punishable by more than one year of incarceration.
When a client is charged with a felony offense, it is usually imperative that they immediately contact a competent criminal defense attorney. The defendant must be aware that they have an absolute right to remain silent during any and all questioning by law enforcement officials.
The best advice any criminal defense attorney can provide to their client is that, at no time should they ever undertake an interview with law enforcement officials without the presence of counsel.
Criminal procedure in the State of Michigan usually is initiated by the arrest of a defendant. If that defendant is arrested on a felony charge, they are to be immediately brought before a District Court Judge or Magistrate for an arraignment. At this arraignment, the defendant is to be told what he or she is charged with, the maximum possible penalty and to have the arraigning Judge or Magistrate set a bond. The defendant is free at the arraignment to stand mute, enter a plea of not guilty or plead guilty. However, it is extremely rare for an arraigning District Court Judge or Magistrate to accept a defendant’s plea of guilty to a felony charge at their arraignment. Rather, the case is typically set for a preliminary examination conference and preliminary examination.
It is also during the arraignment that a defendant is told of their right to have an attorney. Given the consequences of possible prison sentence, it is imperative that a defendant immediately contact a competent criminal defense attorney to evaluate the charges against them. This contact should take place prior to the preliminary examination conference.
A preliminary examination conference is a scheduled meeting whereby the defendant’s attorney will meet with the prosecuting attorney to evaluate the merits of the case against the defendant and to see if the case can be resolved. Usually a competent criminal defense attorney will explore areas of possible plea agreements at this point. If the prosecuting attorney and defense counsel cannot reach an agreement, the case will then proceed to a preliminary examination.
A preliminary examination is a hearing before a District Court Judge where the prosecuting attorney must convince the District Court Judge that a crime has been committed and there exists probable cause to charge the defendant with that crime. The defendant does not usually take the witness stand at these hearings, as the burden is on the prosecuting attorney. Defense counsel can cross-examine the prosecuting attorney’s witnesses to explore either inconsistencies in their statements or to evaluate their credibility as a witness.
At the conclusion of the preliminary examination, the prosecuting attorney will ask the District Court Judge to send the case to Circuit Court if the District Court Judge believes there is enough evidence to charge the defendant.
In Circuit Court the defendant is again arraigned on the charges. Usually, the defendant is given a written copy of the charges against him called the Information. Typically at that point, unless a plea agreement has been reached, the defendant will enter a plea of not guilty and the Circuit Court Judge will set the case for both a pretrial and trial.
Typically, between the time of arraignment and pretrial, a competent criminal defense attorney will review the case and determine if any pretrial motions should be filed. Those pretrial motions could deal with legal defenses such as entrapment or illegal search and seizure. Defense counsel should also begin to prepare a witness list and to interview any witnesses that may be called at trial.
In many felony criminal cases, the time before circuit court arraignment and pretrial involves, to some extent, plea negotiations. A client should be kept apprized of the state of those plea negotiations and be actively involved in those negotiations.
It is not only important for a competent criminal defense attorney to explore a plea bargain but also to have an intimate understanding of the Michigan Sentencing Guidelines.
In the State of Michigan,all felony defendants are subject to being sentenced under the Michigan Sentencing Guidelines. The Michigan Sentencing Guidelines are a law in the State of Michigan that requires all Circuit Court Judges to sentence a defendant within those Guidelines. It is important for the criminal defense attorney to inform their client of these guidelines and, if necessary, to negotiate the lowest sentence within those Guidelines possible.Thus, Circuit Court Judges in the State of Michigan will allow prosecuting attorneys and defense attorneys to enter into both plea negotiations and sentencing negotiations. Often times, at the time of a plea, a Circuit Court Judge will actually tell the defendant the sentence that the Judge has agreed will be imposed as a result of the negotiations between the prosecuting attorney and defense attorney. However, there are times when a Circuit Court Judge will not be a part of such negotiations and, in that case, neither of the parties will know the sentence a Circuit Court Judge will impose until the day of sentencing.
If a plea bargain cannot be reached, felony criminal cases proceed to a jury trial. A defendant may waive his right to a jury trial if it is agreed to by the prosecuting attorney and the Circuit Court Judge.
A defendant’s options to both a jury trial or waiving their right to jury must be an informed decision made by the client. In either event, it is important that a defendant retain a competent criminal defense attorney who has extensive experience at both non-jury and jury trials to protect their client’s rights.
The attorneys at the Law Offices of Brandt & Dehncke, PLLC, have been involved in thousands of felony criminal cases. They have a wealth of experience before both the District Court and Circuit Court Judges on felony cases. Any person who is charged with a felony case should have their case immediately evaluated to explore all legal and factual defenses.
