A criminal case begins when a prosecuting attorney prepares and signs a complaint and warrant. It usually occurs because a police agency has reported sufficient facts about a crime for the prosecution to believe the crime occured. This warrant is then brought to a magistrate by a law enforcement officer who swears that the facts support the warrant. If the magistrate believes the facts support the charges contained in the warrant, then s/he signs the warrant. If the defendant is already under arrest, then the warrant is provided to him or her. If the defendant is not under arrest, then the warrant will be entered into LEIN (Law Enforcement Information Network) for the defendant to be arrested.
Once the defendant is arrested, s/he must be brought before a judge or magistrate for an “arraignment” within forty-eight hours to have the warrant read to him/her, be advised of his/her State and Federal Constitutional Rights, and either set or deny bond. Criminal law is generally broken down into three categories: misdemeanors, felonies, and capital offenses.
If you need assistance with a criminal case, please contact us at your earliest possible convenience so that we can be of assistance.
Misdemeanors are crimes punishable by less than one year in the county jail. Common examples are domestic violence first offense, assault and battery, operating under the influence of liquor (i.e., drunk driving), driving on a suspended/revoked license, possession of marijuana – first offense, and retail fraud first offense (shoplifting less than $200.00 or less than $1,000.00).
These cases start in District Court with the arraignment (see above). The next step is a pretrial conference where your attorney and the prosecutor meet before the court to either enter a plea or set the matter for a trial. Generally, your attorney will already have the police reports for your case prior to this conference.
There may be motions filed prior to the trial. The trial can be either a “bench” trial, meaning that the judge decides both the law and the facts of the case, or a “jury” trial, meaning that the judge decides the law and the jury decides the facts.
If there is a plea or a conviction, then the defendant will be referred to the District Court Probation Department. A Presentence Information Report will be generated by the probation officer. This report is usually available to the judge and your attorney for the first time at sentencing. It will recommend to the Judge possible terms of incarceration, fines, costs, fees, community service, conditions of probation and length of probation, but the final decision is always up to the Judge. A sentencing hearing is then set for the defendant and his attorney to appear, at which the Court sentences the defendant after giving the defendant and his attorney a chance to speak to the judge about the possible sentence.
Felonies are crimes punishable by more than a year in the state penitentiary. Common examples are narcotics offenses, felonious assault (assault with a weapon), uttering and publishing (e.g., passing bad checks), repeated operating under the influence of liquor, and property crimes where the value of the stolen or damaged property exceeds $1,000.00.
After the District Court arraignment (see above), the case is scheduled for a pre-exam conference and then a Preliminary Examination within fourteen days (the “14-Day Rule”). The pre-exam conference is similar to the pretrial conference for a misdemeanor. It is an opportunity for your attorney to meet with the prosecutor in court and determine if there is any resolution to the case possible at that point. If not, then the next Court appearance is for the Preliminary Examination.
A Preliminary Examination is a hearing in which the prosecution has to prove to the District Court Judge that there is probable cause that the crimes listed in the warrant were committed and probable cause to believe that you committed the crimes. If the District Court Judge agrees after hearing the prosecutor’s evidence, then you will be “bound over” to Circuit Court for trial. Note: this is not the trial, and is not a determination of guilt or innocence. It is only to determine if there is enough evidence for a trial. It is also possible for the parties to “waive” the Preliminary Examination and have the charges transferred to the Circuit Court by agreement instead of testimony.
Again, there may be pretrial motions prior to the trial and the trial can be before a judge or a jury. If there is a plea of guilty to charges or a conviction, then the defendant will be referred to the Michigan Department of Corrections. A Presentence Information Report and a Sentencing Information Report will be generated by the probation officer. These reports are usually available to the judge and your attorney a few days before sentencing. They will recommend possible terms of incarceration, fines, costs, fees, community service, conditions of probation and length of probation – but again, the final decision is always up to the judge after hearing what the attorneys, the Defendant, and possibly any victims have to say.
If you have a prior felony conviction within the last ten years you will be subject to the Habitual Offender’s Act. One prior felony will increase your incarceration 50%. Two prior felonies will increase your incarceration 100%. If the crime you are convicted of carries a penalty of less than five years, and you have three prior felonies, than your incarceration may be up to fifteen years. If the crime you are convicted of carries a penalty of five years or greater, and you have three prior felonies, then your incarceration may be up to life in prison.
Capital offenses are crimes which carry a penalty of life in prison or a term of years as set by the judge. Examples are Criminal Sexual Conduct in the First Degree, Felony Murder, Murder in the First Degree, Kidnapping, and Solicitation to Commit Murder.
The steps in Court proceedings in capital cases are the same as for all felonies.