FALSE ASSUMPTIONS IN CRIMINAL LAW
In my 26 years of successfully defending thousands of people prosecuted for all types of misdemeanors and felonies, I have been long troubled by several false assumptions many people have about Arizona’s criminal laws. In this article, I will try to address some common questions of concern.
YOU CAN BE INCARCERATED WITH PROBATION
In most felony cases, the court has the option of sentencing one to either prison or probation. If sentenced to prison, your time is done in a State facility and work release/furlough is not possible. If sentenced to prison, the court must credit ti.
However, if given a probation term, then you may receive up to one year in jail as a condition of probation with NO credit for time served.
***One exception: Aggravated DUI (a class 4 felony) mandates that if you receive probation, you MUST receive a minimum 4-month term of incarceration in prison. That means no work release or furlough is possible.
In a misdemeanor case, Arizona permits the court to sentence an individual to probation. But, as a condition of probation, one can receive up to a 6-month jail term.
WORK RELEASE IS DIFFERENT THAN WORK FURLOUGH
Work release is common for jail terms ordered upon a conviction for a misdemeanor. The judge will decide the release terms. Normally you are permitted release for 12 hours a day for five days a week. Exceptions may be possible. And, the court does not verify employment.
Work furlough is monitored by probation. If granted, normal release consists of 12 hours for 5 days a week. Exceptions are possible, but extremely difficult to come by. Because probation is involved, they verify employment. And, probation receives a fee for supervising furlough.
If convicted of certain violent crimes or sex crimes, the jail will house you in a segregated portion of the jail. If you are serving time in one of those areas, then the jail will not release you under any circumstances for work. I have litigated that issue with the courts. And, simply stated, the court has no authority to order the jail to house you in a work available yard.
I AM ENTITLED TO AN ATTORNEY-MAYBE!
In 1963, the Supreme Court ruled that counsel must be provided free of charge in criminal cases. Although that sounds great, the Court’s holding has morphed over the last 50+ years. Now, the only thing that can be said is that in a felony case, when you prove your indigency, the court will appoint counsel. In some instances, the court can impose a nominal fee. However, in misdemeanor matters, if jail is not a potential outcome, then regardless of your financial situation, the court can deny the appointment of counsel.
If you are facing civil or administrative claims, then you are not entitled to counsel. You are also not entitled to court appointed counsel for immigration or extradition matters. You are also not entitled to court appointed counsel for issues with the DMV, Professional Licensing Boards, Child Protective Services, or to challenge the seizure of your property to name just a few instances.
VOLUNTARY INTOXICATION IS NOT A DEFENSE
Many believe that if their mental capacity is reduced as a result of alcohol or drugs, that the State can’t prove they committed a crime intentionally, knowingly, or recklessly. However, if you have consumed the alcohol or drugs knowingly, it is NOT a defense to the crime committed. It may serve as a mitigating factor for sentencing. But you do not have a free pass to commit the crime.
WINNING YOUR APPEAL MEANS YOUR CASE IS DISMISSED
Arizona has two methods of challenging a case after a conviction: appeal and motion for post-conviction relief (PCR). An appeal is a case that is submitted to the Court of Appeals or the Supreme Court to challenge a legal error at trial. An appeal is only permitted after one loses at trial. You are not permitted to file an appeal if you entered a guilty or no contest plea.
If you entered a guilty plea, you may file a PCR with the trial court. You are not permitted to pursue the initial review of your case with an Appellate Court. You are limited to having the trial court determine if any legal or due process issue arose at the change of plea or sentencing.
If you are fortunate to win an appeal or PCR, the normal remedy is to reset your case at the point of the error. That usually means a new trial, plea or sentencing. It rarely means a dismissal.
Any criminal matter is serious and you should consult with experienced counsel. Call the Law Office of Howard A. Snader for a free consultation. He is a Board Certified Criminal Law Specialist that can answer your questions and address your concerns. If you or anyone you know has been accused of any felony or misdemeanor, please call him at 602.899-1596, email him at [email protected] or visit https://www.snaderlawgroup.com.