A misdemeanor is a lesser criminal charge, such as trespassing or disorderly conduct, that is punishable by less than one year in prison and/or a fine.
What is an a misdemeanor class c assault? Class C Assault occurs if a person 1) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or 2) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. You can be charged for an assault by mere words, or simple physical contact that someone finds offensive or provocative. How can I get charged with so little evidence? It may be surprising to know that the police can charge you with an assault solely based of the words of an accuser and nothing more. The police can and it is common that they will issue a ticket or make an arrest without giving the accused a chance to counter the statement. Thankfully, the prosecuting attorney has the burden of proving the case beyond a reasonable doubt in court. Just because the police don't always collect evidence, doesn't mean that its not necessary for court. What is an affirmative finding of family violence? Why should I care? In addition to a fine for a Class C Misdemeanor, an affirmative finding of family violence could have the following disastrous consequences: 1) A prohibition on owning or possessing firearms and ammunition 2) Restrictions on trade or professional licenses 3) An enhancement on future family violence misdemeanors to felonies 4) Denial of child custody and visitation rights 5) Exclusion from applying for nondisclosure of records So what can I do to fix this? If you pled guilty to a misdemeanor class c assault while in jail, the law allows you to undo this for up to 10 days. This is not discretionary for the judge. The judge MUST grant your motion for new trial if you file it on time. If you pled guilty to a class c assault in jail, why would you risk having this charge follow you around for the rest of your life? Act before its too late, you only have 10 days to prevent a lifetime of horrible consequences
Arraignment on Felony Charges in a Michigan District Court An Arraignment is the first Court Hearing in the judicial process. At this hearing there are multiple goals that the Court seeks to achieve. The first is that the Court notifies the Defendant of the crimes that the prosecutor has brought against them. The Judge or Magistrate will either read the criminal complaint along with maximum punishments or if represented by an experienced criminal defense attorney, he or she will waive the formal reading of the criminal complaint. At that point a plea of “not guilty” will be entered on the defendant’s behalf. The hearing then moves to the issuance of bond or bail. Every Defendant's goal at a bail hearing should be that of a personal bond, meaning that you do not have to post any money to be released from jail. After a bond is imposed and posted, the defendant is released from law enforcement custody and is required to appear at all of the hearings set by the District Court. Probable Cause Conference All felonies begin within a District Court in the State of Michigan. The Probable Cause Conference (PCC) is the first opportunity for your experienced criminal defense attorney to begin negotiations with the District Attorney or Prosecutor. A PCC hearing is conducted before a District Court Judge and must be scheduled within 14 days of the arraignment. MCL 766.4 provides a roadmap for the Probable Cause phase of a felony in District Court. At a Probable Cause Conference, the accused’s criminal defense attorney and the District Attorney speak on numerous different subjects. The main ones being: • Possible plea agreements • Bail or bond compliance and petitioning for a bond modification if the defendant has not posted bail because of the high dollar amount set by the Magistrate. • Discussions regarding procedural aspects of the case and evidence to be admitted at the Preliminary Examination. Preliminary Examination Preliminary Examinations in Michigan District Courts are best described in MCL 766.4. A Preliminary Examination is best described as a mini trial. At this hearing, the prosecutor will be required to show that there is probable cause that the charged crime was committed and that it is more likely than not that the accused committed that crime. It is important to remember at this stage of the criminal proceedings; it is the prosecutor’s burden of proof. This means that the prosecutor through the evidence they present must show that probable cause exists. It is important to have an experienced criminal defense attorney at this hearing. This is because the accused’s criminal defense attorney will have an opportunity to cross-examine the prosecutions witnesses. After the Preliminary Examination hearing the District Court Judge will make a ruling. He or she will either find that probable cause exists and will “bind over” the defendant to Circuit Court for Trial. If the District Court Judge determines that probable cause does not exist against the defendant, upon motion of the defendant’s criminal defense attorney, the charges will be dismissed. Often, some but not all charges are dismissed, and some charges are bound over for trial. Being bound over for trial at Circuit Court does not mean you have been convicted of a crime, nor does it mean that a trial will automatically take place. Being bound over for trial simply means that, there is probable cause that a crime was committed and that the accused is the person who committed it. The defendant also has the ability to waive the Preliminary Examination and forgo having this hearing. This means that witnesses will not have to testify, and the prosecution does not have to meet their burden in open court. This is essentially consenting to binding the case over to Circuit Court for Trial. There are advantages and disadvantages of holding a preliminary examination or waiving your rights to a preliminary examination. Waiving any rights in the criminal justice system should only be done after careful consideration and review by an experienced criminal defense attorney. Pre-Trial in the County Circuit Court After a defendant is bound over to Circuit Court after a Preliminary Examination, a Pre-Trial Hearing is conducted in a Michigan Circuit Court. At a Pre-Trial an experienced criminal defense attorney will have the opportunity to address issues within the case with the prosecutor. At this hearing, potential motions to exclude or suppress evidence, motions to dismiss, or other motions will be discussed between the attorneys. Further, plea negotiations will be conducted. This will include ways to prevent a felony from entering onto the defendant’s criminal record or means of preventing any jail or prison time. Pre-Trials are an important phase of the criminal justice process that requires the best representation by an experienced criminal defense attorney in Macomb, Oakland, and Wayne County. Every case is different and presents its own unique set of facts and circumstances. Having the right attorney present can mean all the difference. Trial in a County Circuit Court A felony trial in a Michigan Circuit Court is arguably the most important phase of the criminal justice process. Although the large majority of felony cases are resolved without a trial it is nevertheless important to have an experienced criminal defense attorney ready to try the case if necessary. The 6th Amendment of the United States Constitution makes it a right for the criminal defendant to have a trial. There are two types of trials, either by judge or by jury. A jury trial is a trial conducted in front of 12 members of the community, who will decide your guilt or innocence after both the prosecution and the defendant through their experienced criminal attorney to offer evidence. At a trial the burden of proof rests with the prosecution, much like at a Preliminary Examination. However, at a felony trial the burden of proof is “beyond a reasonable doubt”. Reasonable doubt is the highest burden that the American justice system has. In short, reasonable doubt exists when a trier of fact (judge or jury) cannot say with fair certainty that a person is guilty, or a particular fact exists. Reasonable doubt is often defined as such doubt as would cause a reasonable person to hesitate before acting in a matter of importance. There are many parts to a felony trial in the Circuit Courts of Macomb, Oakland, or Wayne County. An experienced criminal attorney will have the trial mapped out well before entering the courtroom for trial. The decision to proceed to trial is a difficult one, and that decision should not be taken lightly. The decision to proceed to trial is ultimately up to the client. It further should be done carefully after consultation with an experienced criminal defense attorney. Resolving a case with a plea bargain or at trial both have risks, it is important to have the best representation at both phases to explain the consequences to allow for an informed decision regarding how to proceed with the case. Sentencing Phase If you plead guilty or are found guilty of a felony you will be referred to the probation department in the County for which you are convicted. The probation department will conduct what is called a Pre-Sentence Investigation Report (PSI). Their goal is to gain background information from you regarding your employment history, family history, where you live, any substance abuse issues, prior crimes, and more personal information. Their goal is to attain enough information to make a recommendation for your sentence to the Judge. On the sentencing date you will have the opportunity to review your PSI with your attorney and your attorney will make recommendations for sentence with the judge. The attorney is a great vehicle to achieve the best outcome. An experienced one will know the sentencing practices of the judge before you walk into the court room. An experienced attorney will also know how to navigate the sentencing and what to ask for to achieve the best possible result. After the Judge hears from the probation department, reads the PSI, and listens to Defense Counsel and the Defendant, they will fashion a sentence. The sentence will be within the Michigan Sentencing Guidelines unless substantial and compelling reasons exist to go above and beyond the guidelines. From there if the defendant is placed on probation they will set an appointment with probation to meet and review the probation order. Then the defendant/probationer shall follow the probation order so that there are no violations of probation and at the end of the term there is a successful termination of probation. If the judge at sentencing chooses incarceration, that means the defendant is remanded to the County Jail or the Michigan Department of Corrections to serve the number of months or years that the judge indicated in the sentence. Incarceration is the unfortunate result of some crimes but it can be avoided in most circumstances by taking a proactive approach, especially if it is the defendant's first time in criminal legal trouble.
1. Weapons Search not Permitted here after DV TRO State v. Hemenway. NJ LAWS EMAIL NEWSLETTER E569 Kenneth Vercammen, Attorney at Law October 2, 2019 E569 In this issue: 1. Weapons Search not Permitted here after DV TRO State v. Hemenway. 2. For DWI PCR on prior uncounseled DWI proceeding, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented State v. Patel. 3. Next Event. 4. Free Community Events. 5. Fun Upcoming Running Races & Charity Events Participated by Kenneth Vercammen- Ken V is running 60 races in 2019. 6. Professional Space For Rent, 2045 Woodbridge Avenue. Recent cases: E569 Recent cases 1. Weapons search not permitted here after DV TRO State v. Hemenway. The beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms. Before issuing a warrant to search for weapons under the Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. Transposed into the context of a domestic violence search warrant for weapons, probable cause requires that the issuing court only have a well-grounded suspicion. (A-19-18) 2. For DWI PCR on prior uncounseled DWI proceeding 2. For DWI PCR on prior uncounseled DWI proceeding, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented. State v. Patel. To secure relief from an enhanced custodial sentence for a subsequent DWI conviction, a non-indigent defendant must establish that in the earlier uncounseled DWI proceeding, (1) he was not advised or did not know of his right to counsel and (2) had he known of his right to counsel, he would have retained a lawyer. A defendant contending he was indigent must establish that in the earlier uncounseled DWI proceeding (1) he was not advised and did not know of his right to appointed counsel, (2) he was entitled to the appointment of counsel under the applicable financial means test, R. 7:3-2(b), and (3) had he been properly informed of his rights, he would have accepted appointed counsel. Because denial of counsel is a structural defect in the proceeding, to secure relief from an enhanced custodial sentence, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented. The Court removes the five-year limitation in Laurick petitions and amends Rule 7:10-2(g)(2), effective immediately, to provide the following: "(2) Time Limitations. A petition seeking relief under this Rule may be filed at any time." Here, Patel's unrebutted certifications established that his 1994 plea was uncounseled, and he had no obligation to establish that he would not have pled guilty or been convicted at trial had he been represented by counsel. The Court therefore reverses the judgment of the Appellate Division and remands the matter for proceedings consistent with this opinion. (A-13-18) 3. Next event: Webinar: Estate Planning for the "Difficult" Adult Child - How to Plan in Cases of Addicted, Perpetually Out of Work and Unhappily Married Children. Location: Online or NJ Law Center One Constitution Square New Brunswick, NJ 08901 [next to Rutgers Cook campus] Date: October 10, 2019 Time: 12:00 PM - 1:40 PM ET https://tcms.njsba.com/personifyebusiness/njicle/CLEPrograms/NJICLEEventsCalendar/MeetingDetails.aspx?productId=49471222 4. Next Community Events. 10/5/19 Metuchen Fair [not a race] 10am-4pm, then North Brunswick Heritage day with band Parkway Soul Productions https://www.facebook.com/events/619072458618435/ WILLS & ESTATE ADMINISTRATION seminar October 8 Edison Main Library Tuesday 7pm Edison Library 340 Plainfield Ave. Edison, NJ 08817 October 21 at 6:00 PM Monday WILLS & ESTATE ADMINISTRATION seminar Clara Barton Branch Edison Library 141 Hoover Avenue Edison, NJ 08837 Edison Elks Community Breakfast 10/13/19, and 11/10/19 - Breakfast 8:30-11AM All you can eat breakfast buffet $8 adults, $4 kids (6-12) children under 5 will be our guests. Edison Elks #2487 - Edison, NJ375 Old Post Road, Edison, New Jersey 08817 (732) 985-2487 Oct 31 Spooky Thursday on 7-9:30 Edison Elks November 16th, Miracle Madness Kickoff Party. Save the date! Edison Elks November 21st Thirsty Thursday Edison Elks 5. Fun Upcoming Running Races & Charity events participated by Kenneth Vercammen- Ken V
Introduction Misdemeanor convictions get in the way of many people’s lives. In the world of crime, a Misdemeanor is a minor offense & a Felony is serious. Many cases start out as felonies but end up as a lesser charge. For more on felony convictions, try reading: NJ Felony (Indictable) Charges: 5 Steps To Start Fighting Back How To Know If You Have A Misdemeanor On Your Record Different states have different names for “misdemeanor”, but at the end of the day it’s mostly the same. For example, a misdemeanor in New Jersey is called a “disorderly persons” offense. Other states refer to them as Class A, B, or C misdemeanors. Now, you want to know if a misdemeanor conviction will up and vanish on its own? Let’s discuss it. One Dumb Mistake Has Become A Nightmare If you got arrested for stupid crap and wanted the case to be over quickly, then you probably didn’t fight your case. You just paid a fine & moved on. As a result, you plead guilty to a misdemeanor (a disorderly persons offense in NJ) and soon learned what a mistake it was. You may have been told that it’s “no big deal”. “Just plead guilty, pay the fine and be done with it.” The problem is that a misdemeanor conviction goes on your record and doesn’t go away on its own. In the majority of states, you have to wait for a certain period of time before you can expunge it. For example, in New Jersey, you have to wait five years before you can get your misdemeanor record cleaned up. My Misdemeanor Conviction Won't Let Me Work You inevitably learned about your misdemeanor conviction after your first interview. The job that you desperately wanted was within reach. The interview was smooth. A job offer was on the way. Next thing you know, they conduct a background check on you. Within minutes of your interview, your potential employer discovered a disturbing thing about your past. When you were 19 years old you were arrested for a tiny amount of weed. And now, no one will hire you. Soon, this would become a pattern. Every job you apply for conducts a background check. As a result, someone else got your job. Part I - Misdemeanor Convictions Don't Go Away Sorry to break the bad news but misdemeanor convictions will stay on your record unless you do something about it.Misdemeanor go away You have to check with your local jurisdiction, but for the majority of states, a background search will show that you have a criminal conviction. However, some states still follow the “seven-year rule”. For example, Texas does not allow reporting of criminal convictions more than seven years after disposition, release or parole. New Jersey’s expungement process allows a person to “erase” their disorderly persons conviction after five years from the date of conviction. In addition, all fees, fines and penalties must be paid prior to applying. If you are brave and would like to file your own petition, here’s the kit: Expungement Petition – New Jersey. Part II - You Need To Expunge Your Criminal Record Ideally, you should hire a criminal lawyer to help you with this process. The criminal attorneys at our firm handle a ton of expungements. An expungement involves completing & submitting a lot of paperwork. The court fees are not expensive. Less than a hundred bucks. However, the certified mailing fees add up and the process can take from 6-9 months. The county prosecutors office will return your expungement paperwork if it contains errors. If you’ve never done it before, chances are you’ll make mistakes. Since criminal lawyers represent clients charged with crimes, they’re familiar with their local rules regarding expungement eligibility. Think of it this way: You may have made a mistake by pleading guilty to a misdemeanor charge, but don’t make a mistake when it comes to cleaning up your criminal record. To help you find a good criminal lawyer, we’ve written this guide for you: Criminal Lawyers: Why We Need Them & How To Choose One Be Honest If your misdemeanor conviction is getting in the way of life, you have options. You may have to wait a few years to expunge your misdemeanor conviction and you may have trouble finding a job. However, this doesn’t mean that you will never find a job. Many of our clients were successful in obtaining employment despite having a misdemeanor conviction. Here’s a helpful tip to help you with your job search: Discuss the Misdemeanor Conviction Openly If you know that your job will perform a background search, then notify them ahead of time. If your potential employer is going to find out, it’s better for that person to hear it first from you. Employers are human too. Perhaps they got charged with marijuana in their life & won’t judge you for having been caught either. Your best chance of surviving a background check is by being honest. By bringing it first, it won’t come as a surprise. At least, in this way, you’ll have a chance to explain it. You’d be surprised how much people value honesty above history. Some misdemeanor convictions are worse than others. For example, a misdemeanor conviction for shoplifting is worse than a misdemeanor conviction for public intoxication. Shoplifting is a “theft” offense. And employers really don’t want to hire thieves for obvious reasons. If you got a misdemeanor conviction for public intoxication, it’s not as bad as a theft defense. A theft defense like shoplifting raises concerns about your “trustworthiness”. Public intoxication does not. These are all game-time decisions but employers value honesty and transparency above all else. Final Thoughts Millions of people have misdemeanor convictions on their record and they decided to do something about it. The first step is to conduct your own background search on yourself. You may be worrying about a record that you don't have! Second, if you discover that you do have a criminal record, find out if enough time has passed to get it expunged. If yes, then get an expungement. If not, then be honest with your employer. You really have nothing to lose! Good luck
Georgia Law on Retroactive First Offenders Retroactive First Offenders Law does not apply to violent crimes; must be approved by the prosecutor and the judge; a they start with a Petition from your attorney. OCGA section 42-8-66 In 2015 the Georgia Legislature enacted the Retroactive First Offender Law. GA Code § 42-8-66 (2015) (a) An individual who qualified for sentencing pursuant to this article but who was not informed of his or her eligibility for first offender treatment may, with the consent of the prosecuting attorney, petition the superior court in the county in which he or she was convicted for discharge and exoneration pursuant to this article. (b) The court shall hold a hearing on the petition if requested by the petitioner or prosecuting attorney or desired by the court. (c) In considering a petition pursuant to this Code section, the court may consider any: (1) Evidence introduced by the petitioner; (2) Evidence introduced by the prosecuting attorney; and (3) Other relevant evidence. (d) The court may issue an order retroactively granting first offender treatment and discharge the defendant pursuant to this article if the court finds by a preponderance of the evidence that the defendant was eligible for sentencing under the terms of this article at the time he or she was originally sentenced and the ends of justice and the welfare of society are served by granting such petition. (e) The court shall send a copy of any order issued pursuant to this Code section to the petitioner, the prosecuting attorney, and the Georgia Bureau of Investigation. The Georgia Bureau of Investigation shall modify its records accordingly. (f) This Code section shall not apply to a sentence that may be modified pursuant to subsection (f) of Code Section 17-10-1. Subsection (f) of Code Section 17-10-1 is as follows: (f) Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. Prior to entering any order correcting, reducing, or modifying any sentence, the court shall afford notice and an opportunity for a hearing to the prosecuting attorney. Any order modifying a sentence which is entered without notice and an opportunity for a hearing as provided in this subsection shall be void. This subsection shall not limit any other jurisdiction granted to the court in this Code section or as provided for in subsection (g) of Code Section 42-8-34.
Who is eligible to have a conviction expunged? Expungement is available to defendants convicted of either California misdemeanors or felonies provided that: The defendant has successfully completed probation for the offense, and the defendant either: Did not serve time in state prison for the offense, or served time in state prison, but would have served it in county jail had the crime been committed after implementation of "Realignment" under Proposition 47.1. Note that the California Department of Justice will review and seal all past marijuana convictions that are no longer considered crimes now that recreational marijuana is legal. This process should be done by July 1, 2020. See California Assembly Bill 1793 (2018). What does an expungement accomplish? Under Penal Code 1203.4, an expungement releases an individual from virtually "all penalties and disabilities" arising out of the conviction. As it is, California law bars employers from asking about a job applicant's criminal record until there is a conditional offer of employment. But once a conviction has been expunged, it does not have to be disclosed to an employer even after the employer makes a conditional offer of employment. Who is not eligible for an expungement in California? People are not eligible for expungement if they: are currently charged with a criminal offense, are on probation for a criminal offense or are serving a sentence for a criminal offense. A person is also not eligible for expungement if convicted of certain sex crimes involving children. People who are not eligible for an expungement may be able to get relief for their offenses through: A Certificate of Rehabilitation and/or California governor's pardon, or commutation of a California prison sentence.