PRE-TRIAL DIVERSION VS PROBATIONARY SENTENCE?
There is a big difference between pre-trial diversion, and a probationary sentence, although from a defendant’s point of view, they seem very similar. Quite often, pretrial diversion programs are run by county probation departments in misdemeanor courts, and by state probation, in circuit felony courts. This is another reason why it is very important to have a skilled criminal defense specialist involved. Remember, if possible, a negotiated dismissal is vastly superior to a pretrial diversion, which involves less supervision, cost less, and usually less time involved. It is safer, to put it bluntly. With regard to probation, when someone violates probation, there is usually a no bond warrant issued.
Technically, what happens is a probation officer, states that someone has violated the terms, and conditions of probation, and they file what is known as an affidavit of violation of probation. Many people are familiar with this, but what they may not be familiar with is that the probation officer will prepare a violation report form with the recommendation. Sometimes, when people get a favorable recommendation, they think the deal is done. However, it is only a recommendation. The state attorney can ask the jail, or prison when a probation officer has asked for reinstatement. That is one example amongst many.
The best thing to do in a violation of pretrial diversion, or a violation of probation community control, or house arrest situation, is to contact a skilled criminal defense lawyer immediately. There are all kinds of issues that need to be resolved in these scenarios, from arrest, bond, and hearing, and any litigation. In diversion cases, quite often, people are forced to sign pleas with no contest, but sentencing is deferred. If this is your situation, what happens next is you have a sentencing hearing without the right to have a trial. In this scenario, you need a skilled criminal defense lawyer more than ever. One of the most important functions of criminal defense is to know how to defend a client at a sentencing hearing.
If you walk into a sentencing hearing blind, or if you walk into a violation of probation community control, or diversion, what happens is that outcomes are poor. You are at one of the riskiest positions to be in, when it comes to the criminal justice system. If someone enters that plea of no contest on diversion, they are looking at sentencing. If it is a violation of probation, the burden of proof is far lower than it is with an initial charge. For an initial charge, the burden of proof is beyond, and to the exclusion of every reasonable doubt. For a violation of probation, the evidentiary standard is more likely than not, which is a fancy way of saying fifty-one percent, whereas beyond, and to the exclusion of a reasonable doubt, is ninety-seven to ninety-nine percent.
For this reason, it is critically important to have someone represent you, who knows exactly what they are doing, and who is familiar with the judge, and prosecutor. They need to be familiar with the facts and circumstances in order to deliver the most affective representation possible in order to protect your legal interests.
WILL PLEADING NOT GUILTY OR GOING TO TRIAL MAKE CIRCUMSTANCES WORSE FOR ME?
This is a common concern that many people have if they plead not guilty or maybe go to trial. The concern is that if they do not plead any contest, or guilty at their first court date, they are going to trial, and going to trial would be a horrible thing, resulting in a poor outcome, which is true. However, the first court date is not going to be a trial situation. If someone is a first offender, they often have that concern that they are walking into a trial, they are walking into what is technically called an arraignment. An arraignment is a formal charging process where the judge asks a single question “How do you plead?”
How to Plead?
Now, the state will read the charge first, but that is going to be the judge’s main question, and the proper answer in every case, unless there is a good reason otherwise is to answer with, not guilty. The best way to enter a not guilty plea is to do so without a court appearance. Why without a court appearance? The Florida Rules of Criminal Procedure allow an attorney to file a written plea of not guilty, and a waiver of arraignment. A waiver of arraignment excuses both the lawyer and the client from going to court on that day. What that does is it allows a suit of legal pleadings to be filed, because what will happen is the judge will issue an order, and there will be a series of one or more court dates.
These court dates go by different names, but quite often, they are referred to as some kind of pretrial conference, or a plea day along the way and a notice of discovery will be filed. A notice of discovery requires the State of Florida to produce the witnesses, and evidence in the form of reports, body camera footage, all kinds of information. This information is critical, because it tells what types of areas within a specific case are weak, and which areas are strong. A layperson would never know how to do that because most of the law is not easily accessible on the internet. Many people want to research the law when they are arrested, or their family member has been arrested, but the problem is they would not have access to these case laws.
What is Case Law?
Case law is a body of law made out of appeals by the court of decisions that determine whether those statutes comply with constitutional law and other laws. Case law is where defenses are found. You will almost never find defenses in the statutes online. It is critically important when someone has been arrested to hire a lawyer, and avoid pleading no contest at that first court date. In fact, it can only make it better, because it gives an opportunity to uncover defenses, and engage in negotiations without having to try to negotiate a settlement in the case. If someone tries to negotiate a settlement on their case on their own, they are at a huge disadvantage.
If they try to negotiate their case for settlement purposes without having discovery evidence, then they are even more at a disadvantage. This could result in an unexpectedly harsh sentence that could result in a loss of liberty, such as a driver’s license, a right to own firearms, and a number of other serious ramifications in addition to jail or prison time.
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
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