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Many pepple call my office confused about the difference between misdemeanor and Felony probation and the diffference between misdemeanor and felonies.  There is a big difference.  That is why you should call our office and get guidance if you have been arrested or are facing criminal charges. 

 

MISDEMEANOR PROBATION

When you are placed on misdemeanor probation you are placed on informal probation.  This term is sometimes misconstrued by people on probation.  People on Misdemeanor probation will sometimes believe that they are really not on probation because it is stated informal probation, or that they cannot be subject to search and seizure.  

This is incorrect you may still have subject to search and seizure and have a probation officer.  It is rare but may happen especially in misdemeanor domestic vioelence cases.

Also, you  can if the case is a misdemeanor domestic violence case have a preclusion against owning or possessing firearms.  

WHAT HAPPENS WHEN YOU VIOLATE MISDEMEANOR PROBATION?

Depending on several factors you could be taken into custody, ordered to restart your probation and several other options if you violate your probation. Because it is misdemeanor probtion you cannot go to state prison for violating your probation, however, you could do local jail time.  

FELONY PROBATION

Felony probation is the more serious form of probation.  You will be on formal probation, and probably have a  probation officer.  At the least you will have to mail in reports and probably in most cases have drug or alcoohol terms stating you cannot use alchol or drugs and you will be tested for compliance. 

WHAT HAPPENS WHEN YOU VIOLATE FELONY PROBATION?

If you  violate your felony probation the consequences could be much more sever for you.  You could go to prison for the term for the underlying offense.  For example if you are on probation for a residential burglary the sentencing trial is 2, 4 or 6 years.  This means you could get any of those three terms.  You could be ordered to restart your probation, and spend time in local jail.  This all depends on several factors including how many violations of probation you have and the severity of those violations.  

 

If you are facing probation give our office a call and we can help you. 

If you find out you are being investigated for a crime, you need to seek representation as soon as possible.  Every  criminal case begins with a criminal investigation.  Sometimes those investigations are short and sometimes they are long and involved investigations. 

Many times you will not know that you are being investigated for any crimes when you are finally arrested you realize that the investigation had been going on for quite some time, and you never knew you were the target of an investigation. 

Law Enforcement may ask you to cooperate in the investigation or question you regarding the investigation.  it is important to have a criminal defense attorney any time you are dealing with law enforcement in any way, even if it is before you have been contacted by law enforcement. 

 

Police investigations can be conducted by many different law enforcement agencies, Sheriffs Department, Police Departments, or State and Federal Agencies.  And once Law Enforcement contacts you, you should contact an Attorney to determine your rights. 

Police are trained to make arrest and put people in jail they are not advocates for you or your best interest.  

DO I NEED AN ATTORNEY DURING THE INVESTIGATION?

Yes, I have heard Defense Attorneys sometimes tell people well call me once charges are filed and I can help you.  Do not listen to this advice, it is wrongheaded and simply poor legal advice that could seriously hurt your chances of keeping your freedom.  The legal system is a vast complicated system with many different angles.  As stated above the police are not your Attorneys and do not have your best interest in mind.  It is simply not there job to be  your Attorney it is there job to put people in jail  Therefore, you need an Attorney that is experienced and has dealt with those kind of cased before.  So if you find out that you are being investigated give our office a call as soon as possible. 

Many times there is much confusion as to time waivers in court, and exactly what they mean.  Many times you will hear Attorneys in court that will ask for a time waiver or a general time waiver.  Some defendants think that they are somehow waiving time credits.  

ARREST

After an arrest you must be arraigned within 48 hours or released from custody.  That is generally because there could be some other hold, i.e. parole hold, violation of probation hold etc. that is keeping you in custody.  There is different time limits if you are out of custody.  

PRELIMINARY HEARING

After arraignmnent you have a right to a preliminary hearing within 10 days of arraignmnet and the court must find good cause to continue past that date.  You can even enter a specific time waiver for example waive the 10 days plus 5 more days.  This could enable your Attorney to have more time to work on the case and still keep a time waiver in place. 

Many times specifically on complicated cases a  general time waiver will be entered.  This enables the Attorney to get things done without the time waiver running out.  

TRIAL 

After a preliminary hearing the defendant has the right to a trial within 60 days of the indictment or information, or if the District Attorney has dismissed and refiled the case.  Generally, the District Attorney can dismiss and refile a case one time. 

Usually after a prelimary hearing you will be arraigned at what is called an HTA arraignment. This means that from that court date wich occurs 15 days after a holding order in a preliminary hearing you will have a right to a trial whithin 60 days.  If you enter a general time waiver, then revoke the waiver, the trial will be set whitin 60 days of that date. 

You should listen to your Attorney as to when and when not to enter into a time waiver.  Many times cases are complex and can take time.  Even locating potential witnesses can be very time consuming and difficult.  

If you have any questions give us a call and we will help you out. 559441-1418.

 

If you or a  loved one has been accused of domestic violence it is imperative that you get counsel as soon as possible.  In some of my other blog post I have given the reasons why securing counsel immidiately can help your case.  When accused of domestic violence many people ask what are some of the defenses they may have to the charge.  

I will discuss some of the most common defenses to domestic violence.  

You can disprove the charge at trial or to the Deputy District Attorney handling the case.

Factual Contradiction The accusers facts contradict each other

Self Defense you were defending yourself from attack

Defense of Others you were defending someoen else from attack and were not the initial aggressor.

Accidental injury the injuries sustained by the victim were an accident. 

False Accusation the accusation is not based in truth and the alleged victim made up either all or part of the story

Mistaken identification

If you are accused of Domestic Violence you could be in for a long tough road.  There are many false claims, false restraining orders, and the scales of justice are tipped in the favor of accuser.  I have seen even the most ludicrous claims get past the point of preliminary hearing.  Even to the point of the victim actually admittting that she made the story up.  The prosecution will sometimes attempt to get an expert say that many cases involve recanting and still go forward.  

 

HOWEVER, you must defend yourself in this system and fight back and you need experienced representation for the fight.  You need someone that has tried cases and did prelimary hearings in the domestic violence system.  As stated above the domestic violence system is vastly different than the non domestic violence system.  In fact, if you as a citzen were to complain of a battery using the facts that are present in most domestic violence cases, the case would not be filed by the court.  

There could be several reasons whey the accuser is making a false accusation. 

the accuser likes playing the victim role

revenge

a divorce settlement

the accuser wants custody of the kids.

I have seen all of these play out in court and they can all be very scary processes.  If you have been acccused of domestic violence you need to uncover these possible motives and have the case properly investigated for possible defenses.  Just hoping the accuser will calm down is not legal advice and will not improve your situation in most instances. 

If you are in this situation please give us a call and we can help you.  559441-1418.

California courts have been trhying to keep up with the changing dynamics of society including social media in the courtroom and its admissibility.  In the Digital Age where technology continues to advance rapidly sharing photos, videos etc, some people go as far as to revealing the most intimate parts of there lives including, believe it or not there possible involvement in criminal activity. 

THE ADMISISBILITY OF SOCIAL MEDIA EVIDENCE

Social Media evidence faces all of the same hurdles as so called more traditional evidence.  The evidence must be relavent to some issue in the case.  The evidence must be able to be authenticated which means that it must be able to be shown to be what is purports to be. And it must be able to get past any Hearsay objections.  And the evidence cannot be unfairly prejudicial. 

You or your Attorney should probably seek a 402 hearing which is a hearing to determine the admissibility of evidence 

The key question is who authored the social media post.  This must be shown before any social media evidence may be admitted.  Once this is established this may simultaneouosly establish an exception to the hearsay rule.  

And the person seeking to admit the post must be able to prove that the social media post is accurate.  

The person offering the evidence will often seek to introduce the evidence that for example the person was in the place where the social media post was made it is him in the picutre and he did not try to have the account blocked after being hacked for example. This would be circumstantial evidence.  Or the proponent can just ask the person on the stand if the account is there account.  Another form of circumstantial evidence is that someone saw him put  the post up and was with him when it was made.

If you have any further questions give us a call 559 441-1418.

If you are facing a conviction of a misdemeanor crime in California The California Penal Code regualates that a Judge must conduct a sentencing hearing.  Misdemeanor Sentencing Hearings must be pronounced not less than six hours no more than five days after a guilty plea, no contest plea, or conviction unless the defendant waives that timeframe.  

Many times in Misdemeanor cases the defendant will waive time for sentencing which means that the sentence will be pronounced immediately after the plea.  Many times there will not be complex issues in sentencing which will require a full blown statement in mitigation, as there would be in a Felony sentencing.  

A Statement in Mitigating circumstances is a hearing usually accompanied by a written motion as to the mitigating circumstances as to why the punishment should be minimized. The prosecution will offer there own reasoning as to why the punishment should be more severe. 

In Misdemeanor cases, most of the time, but not all of the time there will be oral arguments wihtout the need for a full blown senencing hearing. 

If you have been charged with a misdemeanor case you should consult with an Attorney to get the personalized attention your case deserved give us a call for a case evaluation. 559441-1418.

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Fresno Criminal Defense Attorney
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