Can a judge deny me a public defender if he states he's not imposing jail time and then change his mind and give me jail time?

Asked almost 2 years ago - Reno, NV

I was arrested for obstruction of a peace officer.

Attorney answers (3)

  1. Cal Johnson Potter

    Pro

    Contributor Level 10

    3

    Lawyers agree

    Answered . Argensinger v. Hamlin is the United States Supreme Court case that guarantees you the right to the effective assistance of counsel on a misdemeanor if you are facing jail time. Constitutionally you cannot be sentenced to jail without an attorney. You should consult with an attorney in Reno because there are defenses to obstructing a police officer. Many times this type of charge is used for street justice by police officers. It is often referred to as contempt of cop.

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  2. Lester Mike Paredes

    Pro

    Contributor Level 7

    1

    Lawyer agrees

    Answered . I agree that you are entitled to a lawyer if you are facing jail, but think that if the judge is not a laywer and you don't have a lawyer to ask a higher court for an immediate injunction, the question will be academic once it is settled after you've already paid the price.

  3. Howard Robert Roitman

    Contributor Level 17

    Answered . Because of the law's complexity and the often substantial deprivations that a criminal conviction can produce, the Sixth Amendment provides criminal defendants with a RIGHT TO COUNSEL. A defendant's Sixth Amendment right to counsel attaches when the government initiates adversarial criminal proceedings, whether by way of formal charge, PRELIMINARY HEARING, indictment, information, or ARRAIGNMENT (United States v. Larkin, 978 F.2d 964 [7th Cir. 1992]). Unlike the right to a speedy trial, this Sixth Amendment right does not arise at the moment of arrest unless the government has already filed formal charges (Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 [1972]). However, defendants may assert a FIFTH AMENDMENT right to consult with an attorney during CUSTODIAL INTERROGATION by the police, even though no formal charges have been brought and no arrest has been made (MIRANDA V. ARIZONA, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).

    Defendants do not enjoy a Sixth Amendment right to be represented by counsel during every phase of litigation that follows the initiation of formal adversarial proceedings by the state. Instead, defendants may only assert this right during "critical stages" of the proceedings (Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 [1985]). A critical stage of prosecution includes every instance in which the advice of counsel is necessary to ensure a defendant's right to a fair trial or in which the absence of counsel might impair the preparation or presentation of a defense (United States v. Hidalgo, 7 F.3d 1566 [11th Cir. 1993]).

    Obviously, the trial is a critical stage in any criminal proceeding, as are jury selection, sentencing, and nearly every effort by the government to elicit information from the accused, including interrogation. However, courts are divided on the issue of whether the state may perform a consensual search of a defendant's premises without the advice or presence of counsel. At the same time, courts generally agree that pretrial hearings involving issues related to bail, the suppression of evidence, or the viability of the prosecution's case all qualify as critical stages of criminal proceedings (Smith v. Lockhart, 923 F.2d 1314 [8th Cir. 1991]). The U.S. Supreme Court has ruled that the denial of counsel during a critical stage amounts to an unconstitutional deprivation of a fair trial, warranting the reversal of conviction (United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 [1984]).

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