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Every criminal case,
whether it is in
municipal court, county
court or state court,
follows a process. While
there may be slight
variations, the process
is basically the same.
Click on any of the
topics below for
information.
A
person who is being
accused of a crime has a
right to an attorney. An
attorney may be employed
to assist the accused
during the initial
police investigation.
Once the case is filed,
there is a right to an
attorney at every
critical stage of the
proceeding. If the
defendant cannot afford
to hire an attorney, and
the defendant's income
meets certain state
guidelines, the court
may appoint an attorney
without cost to the
defendant.
Prior to a case being
filed, the police must
do an investigation to
ensure that there are
sufficient facts to
support the filing of a
criminal case. During
the investigation
process, the
investigating officer
may want to interview
the person they suspect
of committing the crime.
The suspect may choose
to talk to the police or
may choose not to talk
to the police. If the
suspect chooses not to
talk to the police, his
or her silence may never
be used in a trial. If
the suspect chooses to
talk to the police, he
or she may stop the
interview at any time
for any reason. If the
police officer wishes to
interview the suspect in
a place where he or she
is not free to leave,
then the officer must
review certain rights
with the suspect prior
to the interview. This
is commonly known as a
Miranda advisement.
In
making a decision about
whether to talk to a
police officer, it is
important to remember
that you may not know
enough about the law or
the officer's
investigation to
recognize when you might
actually be
incriminating yourself.
It is also important to
understand that a police
officer's job is to
investigate a crime.
Consequently, the
officer's interests may
be different, if not
adverse, to the
interests of the
suspect.
In
municipal and county
court cases, the police
officer files the case.
This is often
accomplished by writing
a ticket for the
offense, giving a copy
to the person being
charged with a crime and
filing a copy with the
court. The ticket will
include the name and
statute number of the
offense or offenses
being charged, and the
date and time of the
first court appearance.
In a
felony case, the
District Attorney's
Office reviews the
police investigation and
decides what charges
should be filed. The
District Attorney's
Office prepares a
"complaint and
information" that
includes the legal
definition of the
offense being charged
and the statute number
of the offense. If the
District Attorney's
Office chooses to
proceed by giving the
complaint and
information to the
person being charged,
and not by making an
arrest, the complaint
and information will
also include the date
and time of the first
court appearance. The
District Attorney will
then file the complaint
and information with the
District Court.
The
charging document only
has to include enough
information to give a
person notice of what he
or she is being charged.
Minor mistakes in the
charging documents will
usually not result in a
dismissal of the
criminal case.
If a
law enforcement officer
or the District
Attorney's Office feel
that either the crime or
certain circumstances
require additional
assurances that the
person being charged
will appear in Court,
they may decide to
proceed by arrest. To
proceed by arrest; the
charging agency must
apply to the court for
an arrest warrant. The
court will review the
information obtained by
the investigating
agency, and determine
whether there is enough
evidence to issue the
warrant. If an agency
proceeds by arrest, a
copy of the charging
document will be
provided to the
defendant at the first
court appearance. If a
defendant is arrested,
they will be held in a
county jail.
If
the charging agency
decides to proceed by
arrest, the defendant is
entitled to bond, unless
the crime being charged
is a class one felony.
The posting of a bond
allows the defendant to
go through the court
process without having
to stay in a county
jail. If the bond cannot
be posted, the defendant
will remain in a county
jail until his or her
case has reached its
conclusion.
In
setting the type and
amount of bond, the
court will review the
crimes being charged,
any prior criminal
record and the
defendant's ties to the
community. The court may
require some type of
financial commitment be
made, and set a cash,
property or surety bond.
This means that the
amount of the bond may
be posted by paying the
bond amount in cash, by
offering to secure the
amount of the bond with
a piece of property or
by hiring a bail
bondsman to post the
bond. The court may
decide that there is no
need for an immediate
financial commitment,
and allow a defendant or
another responsible
adult to sign the bond
with the promise that
the bond amount will be
paid if the defendant
fails to appear for a
scheduled court date.
In
all criminal cases, the
first hearing before the
court is an advisement
hearing. At this
hearing, the Court will
advise the defendant of
his or her rights. In a
municipal case, a county
court case or a felony
case where the defendant
has not been arrested,
the advisement will
usually also include a
discussion of the crimes
that have been charged.
If a defendant in a
felony case has been
arrested, the charging
document may not have
been prepared. In that
case, the District
Attorney's Office will
have an additional
period of time in which
to file the complaint
and information, and
another hearing will be
set for advisement on
the crimes charged.
After
the initial hearings, a
felony case will be set
for a preliminary
hearing or a
dispositional
conference. What the
felony case is set for
will depend on what has
been charged or whether
the defendant cannot
make bond and will
remain in the county
jail. A preliminary
hearing is held to
determine whether there
is enough evidence to
proceed to trial. The
preliminary hearing must
be held within 30 days
of the date it is
requested. A
dispositional conference
is a set time where the
parties can talk about
the case and try to
reach a resolution.
An
arraignment is held in
every criminal case.
This is the time where a
defendant enters a plea.
If the defendant pleads
"not guilty", the time
limit for a speedy trial
will began to run.
Speedy trial does not
start to run until a
"not guilty" plea is
entered. A felony or a
misdemeanor case must be
tried within six (6)
months of the day the
not guilty plea was
entered. A municipal
ordinance must be tried
within ninety (90) days
of the day the not
guilty plea was entered.
The
motions hearing is set
prior to the trial date.
At the motions hearing,
evidence is presented
and the court is asked
to rule on whether
certain pieces of
evidence can be used in
the trial.
A
trial is a hearing used
to determine whether the
crime did or did not
occur. A defendant is
allowed to have either a
trial to the
court or a trial to
a jury on most criminal
allegations in Colorado.
A trial to the court
allows the judge to
decide if a criminal act
was committed and
whether the defendant
was the person who
committed the crime. In
a jury trial, citizens
from the community make
those determinations. If
a jury is used, all
members of the jury
panel must agree that
the defendant committed
the crime to be able to
say that he is "guilty".
At a
trial, the defense is
allowed to ask questions
of the prosecutions
witnesses, and to call
witnesses in their own
defense. Sometimes
witnesses have helpful
information but do not
want to come to court.
In that case, the
witness can be given a
"subpoena", which is a
court order to appear in
court to testify.
A
defendant in a criminal
case always has the
right to remain silent.
If a defendant chooses
not to testify at the
trial, the finder of
fact cannot use the
defendant's silence
while reviewing the
evidence and making a
decision about the case.
By the same token, the
defendant has a right to
testify in his or her
own defense. If the
defendant testifies, the
finder of fact may use
the defendant's own
statements against him
or her if that is how
the information fits
into the facts
presented.
If a
cash, property or surety
bond has been posted,
and if someone other
than the defendant has
posted the bond, the
court will require a
written consent from the
person who posted the
bond if the defendant
pleads or is found
guilty. If the written
consent is not provided,
the court must revoke
the bond and put the
defendant back in the
county jail.
After
a plea or finding of
guilt, most courts will
order the appropriate
agency to do a
pre-sentence
investigation. This
investigation is
designed to give the
court relevant and
verified information
concerning the defendant
which will assist the
court at sentencing. The
investigating agency
will usually start its
investigation by
interviewing the
defendant. A written
report will be produced
in advance of the
sentencing hearing to
allow both sides time to
review the report and to
identify errors in the
report that need to be
corrected.
Prior
to the sentencing
hearing, the court will
review the pre-sentence
report. If there is
additional information
that the defense would
like the court to
consider, the
information may be
submitted to the court,
in advance of the
hearing date. At the
sentencing hearing, both
sides will have the
opportunity to present
witnesses, and to make a
statement. The defendant
will specifically be
given an opportunity to
address the court, and
has the right to either
accept or decline.
In
all criminal cases, the
court has sentencing
options other than
incarceration. In all
cases, the court may
impose a sentence of
probation. However, in
county and district
court cases, the court
must have the permission
of the prosecution to
impose a probationary
sentence if the
defendant has two prior
felony convictions. The
court, as a condition of
probation, can require
hours of community
service or a short jail
sentence. If the court
decides to impose a
sentence, the court may
authorize work or
education release if the
jail sentence is going
to be at least thirty
(30) days in length.
This means that the
defendant would go to
work or to school, and
spend his or her free
time at the jail.
In
felony cases, the court
may have the option of
imposing a sentence to
community corrections.
If the court sentences a
defendant to community
corrections, the
sentence will be for a
period of years. If a
defendant violates the
terms of his or her
community corrections
sentence, the sentence
will convert to a prison
sentence and the
defendant will complete
the remainder of his or
her sentence in prison.
The community
corrections program is
essentially a "half way
house". People serving a
community corrections
sentence live at the
community corrections
center until it is
determined that they
have met the criteria to
be on non-residential
status. When a defendant
is put on
non-residential status,
they are able to live at
their own residence but
must check in regularly
much like defendants who
are on probation. A
sentence to community
corrections can never be
transferred to another
state.
Probation is a
sentencing alternative
that the court has
available when initially
imposing a sentence.
Parole is the mandatory
supervision that is
required at the end of
every felony prison
sentence. The period of
mandatory parole is in
addition to the prison
sentence imposed. The
period of parole imposed
depends on the class of
felony for which a
sentence was imposed.
The periods of parole
are as follows:
Class
1 felony: no parole.
Class
2 felony: 5 years
parole.
Class
3 felony: 5 years parole
Class
4 felony: 3 years
parole.
Class
5 felony: 2 years
parole.
Class
6 felony: 1 year parole.
Plea bargaining is the
mechanism that allows
the prosecution and the
defense to try to reach
a fair disposition of a
criminal case without
going to trial. What is
said during the course
of plea negotiations is
not admissible in Court,
and cannot be used
against a criminal
defendant. Plea
bargaining can be done
at any time throughout
the course of the
criminal proceeding
unless there are time
restrictions that have
been imposed by the
court. The court cannot
be involved in the plea
bargaining process.
There
are certain sentencing
alternatives that can
only be offered by the
prosecution as a plea
bargain. A
deferred prosecution
and a deferred
judgment are
two sentencing
alternatives that give a
defendant the
opportunity not to have
a criminal record.
With a
deferred
prosecution, a
plea is not entered.
Speedy trial is waived,
and the case is set over
for a period of time.
Conditions are placed on
the deferred
prosecution. If the
defendant successfully
completes those
conditions during the
specified period of
time, the case is
dismissed. If the
conditions are not
completed, the case is
reset for trial, and
proceeds through the
normal process.
A
deferred
judgment
requires a guilty plea.
The judgment is then
deferred for a period of
time. Since a conviction
on a criminal case does
not enter until a
sentence has been
imposed, the defendant
does not stand convicted
of a crime at this
stage. Conditions are
placed on the deferred
judgment. If the
defendant successfully
completes those
conditions during the
specified period of
time, the guilty plea is
withdrawn and the case
is dismissed. If the
conditions are not
completed, the
conviction enters and
the defendant is
sentenced on the
criminal conviction.
If a
plea agreement
is reached between the
parties, the court still
maintains the authority
to accept or reject the
agreement. If the court
rejects the plea
agreement, the parties
may either try to reach
another agreement or set
the case for trial.
For more information on
the criminal defense
process, please select a
topic from the following
menu:
Please
contact our firm to
discuss your legal
issue.
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