Binding Criminal Cases Over in Georgia (Part 2)
Should you bind your case over to State court?
Next you must determine, from a strategical standpoint, whether it would be in your best interest to bind your case over. To do this you have to consider where you’re more likely going to get a good plea deal, or a fair trial. There are advantages and disadvantages to Municipal Courts as well as State/Superior Courts. One obvious advantage is that State/ Superior Courts have jury trials. However, one disadvantage is that binding your case over is not a quick process, it can take months or years. Most importantly, when deciding if you should bind your case over you should contact a trained legal professional to help you. The attorney should be well informed with the Court, the Judge, the Prosecutors, and the process. Having a knowledgeable attorney will make this decision easier for you. If you are trying to decide the next steps in your criminal case, contact us.
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- Published in Criminal, Criminal Defense
Binding Criminal Cases Over in Georgia (Part 1)
What does it mean to bind a case over?
Many state level misdemeanors like traffic citations, driving under the influence (DUIs), and other state level misdemeanor crimes such as Shoplifting, Possession of Marijuana (Less than 1 oz.), Criminal Trespass, and more, originate in the Municipal Court of the city where the alleged offense took place. If someone is charged with state-level offenses, they have a Constitutional right to a “public and speedy trial by an impartial jury.” Since Municipals Courts in Georgia do not hold jury trials. Therefore, in order for a defendant to obtain a jury trial, he must make a demand for jury trial to Municipal Court. The Municipal Court will then “bind over” the case to the State Court of the county where the alleged offense took place. If there is no State Court in that county, the Municipal Court will bind the case to the county Superior Court.
Is your offense eligible to be bound over?
Not all offenses are eligible to bind over to State or Superior Court. If your case is not eligible to be bound over, you do not have a right to a jury trial. Georgia courts distinguish between crimes that are “solely violations of local or municipal ordinances,” and crimes where the offense is a violation of an ordinance as well as a misdemeanor under state law. Where there is an offense of a local ordinance and a state level offense, the State/Superior Court has “concurrent” jurisdiction over the case.
Generally, if you are charged with a misdemeanor you have the right to bind your case over. For instance, if you are charged with speeding, you have the right to a jury trial which means you have the absolute right to bind your case over to State/ Superior Court. Clark v. State. Also, as Marijuana is becoming more and more common in America, Georgia has implemented a statute that allows defendants accused of Possession of Marijuana (Less than 1 oz.) to bind their case over to State/ Superior Court.
However, if you are accused of violating a local zoning ordinance, you most likely will not have the right to neither a jury trial or to bind your case over because zoning violations are not state level misdemeanors. Determining what your charges are is the first step in determining whether you should bind your case over.
If you or someone you know is charged with a crime and would like to bind your case over, don’t hesitate to contact us.
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- Published in Criminal, Criminal Defense
Have You Been Charged with Shoplifting in Georgia?
A shoplifting offense will result in a misdemeanor conviction in the state of Georgia where the value of the shoplifted property is $300 or less.
However, a shoplifting offense will constitute a felony under Georgia law if:
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the value of the shoplifted property is more than $300, or
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the property is stolen from three separate stores in the same county within a seven-day period, and the property that is the subject of each theft is worth at least $100.
For an offender’s second shoplifting offense, the court will impose a fine of at least $250, either in addition to or instead of a sentence of imprisonment.
Upon a third shoplifting offense in Georgia, an offender will receive a sentence of imprisonment of 30 days, or an alternative sentence of confinement, such as home detention, for a period of 120 days, and may be ordered to receive psychological evaluation or treatment at the offender’s expense.
Upon a fourth or subsequent shoplifting offense, the offender shall receive a sentence of imprisonment of at least one year, which is not eligible to suspended, and a maximum of ten years.
If you or a loved one are facing a shoplifting charge, contact us to begin mounting an aggressive defense.
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- Published in Criminal, Criminal Defense, Felony, Shoplifting, Theft
Theft as Misdemeanor or Felony in Georgia
When a theft offense involves property valued at $500 or less, the crime is punishable as a misdemeanor in Georgia. Punishment for a misdemeanor includes a fine of no more than $1,000 and a sentence of imprisonment of no more than 12 months. If an offender receives a sentence of six months or less, it is within the authority and discretion of the sentencing judge to allow the sentence to be served via weekend confinement or during the offender’s nonworking hours.
If the theft offense involves property valued at more than $500, the crime is punishable as a felony, or as a misdemeanor, at the judge’s discretion. If theft is charged as a felony, the theft charge carries a sentence of imprisonment of not less than one year and not more than ten years. The other circumstances under which a theft is punishable as a felony in Georgia include:
- theft of anhydrous ammonia (one to ten years of imprisonment)
- theft involving the breach of a fiduciary relationship (one to 15 years of imprisonment, and/or a fine)
- theft of government or bank property, by an employee (one to 15 years of imprisonment, and/or a fine)
- theft involving a gravesite or cemetery decoration (one to three years of imprisonment)
- theft of a motor vehicle or vehicle part worth more than $100 (one to 10 years of imprisonment)
- theft committed while telemarketing, using a computer or computer network, or engaging in home repair or improvement (one to 10 years of imprisonment),
- theft of a destructive device, explosive, or firearm (one to 10 years of imprisonment).
If you or a loved one are facing felony theft charges in Georgia, contact us.
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- Published in Criminal, Criminal Defense, Felony, Theft
Georgia Petty Theft and Other Theft Laws
Theft Defined Under Georgia Law
Theft can occur in a variety of ways under Georgia law. The most common type of theft involves theft by taking, which Georgia statute defines as occurring when a person “unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which property is taken or appropriated.”
Georgia law also provides for several other types of theft, including:
- theft by deception ( § 16-8-3.)
- theft by conversion ( § 16-8-4.)
- theft of services ( § 16-8-5.)
- theft of lost or mislaid property ( § 16-8-7.)
- theft by receiving property stolen in another state ( § 16-8-8.)
- theft by bringing stolen property into the state ( § 16-8-9.)
- theft by shoplifting ( § 16-8-14.), and
- theft by extortion ( § 16-8-16.).
If you or a loved one are facing theft charges, contact us to begin mounting an aggressive defense.
Call us at 678.324-8511;
E-mail us at Info@LawrenceLegal.Law; or
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- Published in Criminal, Criminal Defense, Theft
Don’t Learn The Hard Way – Consequences Of A Conviction For Immigrants (Part 3)
Obtaining Relief
Simply having a claim is not enough to obtain relief though. There are two parts to an ineffective of counsel claim. You must first prove that the lawyer’s performance was deficient. You must also establish that you were prejudiced. In this context, that means establishing that you would not have pleaded guilty if you had received accurate advice. The ability to do that depends on the facts of the case; if you were caught “red-handed”, and have no possible defense, you are going to have a difficult time establishing you would have insisted on going to trial.
I believe there will be a wave of claims involving defendants who receive some type of deferred disposition. The reason is that very few lawyers recognize that placement into such a program can subject a person to removal proceedings. Additionally, enforcement has stepped up, especially here in Georgia. I’ve seen a lot of people who were probably subject to removal proceedings, but nothing was ever done. Now, you can expect even the most minor offense will result in some type of action by ICE. Until criminal defense lawyers understand this, there are going to be people who suddenly find themselves in a holding facility, be it county jail or an immigration detention center. At that point, the options aren’t great, but at least you have some.
If you or a family member are in this situation, don’t wait. You need to contact a lawyer immediately.
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- Published in Criminal, Criminal Defense, Deportation, Deportation Defense, ICE, Immigration, Moral Terpitude
Don’t Learn The Hard Way – Consequences Of A Conviction For Immigrants (Part 2)
The remedy is an application for writ of habeas corpus
Once a person is in immigration custody, the only option is to file an application for writ of habeas. Generally, that will be based on a claim of ineffective assistance or a claim that the plea was not voluntary. Since Padilla, the law is very clear that a lawyer has the obligation to advise a defendant about the consequences of a conviction. The question becomes how extensive that advice should be; in other words, is it enough to say you “might” be deported, or do you need to go further? Under the current administration, do you have an obligation to advise a defendant that they will be deported, or removal proceedings will be initiated?
Writ claims can be divided into two categories:
- The failure to provide advice. The failure to provide any advice is rare. Most lawyers know enough to at least tell a client that they might have a problem if they are not a United States citizen. However, it might happen if the lawyer is not aware of the client’s status. There is an argument to make that a lawyer has the obligation to ask the questions and to ask the right questions.
- The failure to provide accurate advice. This occurs most often where a client is subject to mandatory deportation, and the lawyer simply tells them they “might” be deported. If the result is automatic, the client needs to know that. This can also occur where the lawyer incorrectly tells the client that they don’t have anything to worry about.
If you or a loved one who is not yet a citizen is facing criminal charges, we are here to help.
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- Published in Criminal, Criminal Defense, Deportation, Deportation Defense, Immigration
Don’t Learn The Hard Way – Consequences Of A Conviction For Immigrants (Part 1)
With as much talk as there has been over the last few years about immigration, you would think most criminal defense lawyers are sensitive to the potential consequences of a conviction for defendants who are not United States citizens. Unfortunately, I continue to see lawyers who believe certain dispositions will protect a client against removal proceedings. Generally, this occurs where the client is placed on deferred adjudication, or placed in some type of pre-trial diversion program. They mistakenly believe that if there is no conviction, there are no immigration consequences.
I’ve recently seen cases where a defendant was placed on deferred adjudication for a minor offense, and when they went to report for probation, were met by ICE officials. They had no idea that could happen until it was too late.
I’ve also seen too many cases where the lawyer fails to ask about a client’s immigration status. They may have grown up here, graduated from high school or even college, and have stable jobs. There is nothing to suggest they are not United States citizens. Some lawyers also ask the wrong question; they might be here under DACA, or have a valid work permit, and if asked if they are “legal” will truthfully answer yes. If you or a loved one who is not yet a citizen is facing criminal charges, we are here to help.
Call us at 678.324-8511;
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- Published in Criminal, Criminal Defense, Deportation, Deportation Defense, Moral Terpitude
Hot Cars and Children in Georgia
Pediatric vehicular heatstroke (PVH) kills dozens of children every year in the United States. These tragic deaths are all preventable. Regardless of how quick you think the errand will be, do not leave your children alone in the car. A child should not die because someone misjudged how long the line would be in a store.
Ways to prevent a child from getting heatstroke in your car:
- Never leave your child alone in the car.
- Do not leave your car unlocked. Some children have died from PVH because they were playing and sneaked into an unlocked vehicle.
- Call 911 every time you see a child alone in a car.
- If your child goes to daycare, set an audible alarm on your cell phone to double-check that you did not leave the child in the car. Also, set up a protocol that the daycare center will call you if they do not receive your child on time.
- Place an item that you must have for work in the back seat of the car, next to your child. Your phone, wallet, purse, briefcase, or one of your shoes are objects that you are unlikely to forget to grab before getting out of the car.
- Use high-tech devices like rear seat reminders and car seat “smart” chips to alert you if there is a child in the rear seat or that you should check the back seat of your car.
Safe Drivers
One of the best ways to protect your child in a car or truck is to make sure she only rides with safe drivers. Make and always follow family rules so that your child does not ride with a driver who is:
- Impaired by alcohol, prescriptions medication, or other drugs
- Drowsy
- In the habit of texting, speeding, engaging in road rage, or any other type of unsafe, distracted driving.
- Young and inexperienced.
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- Published in Criminal, Criminal Defense, Family
Navigating Georgia Child Restraint Laws
Under Georgia law, your child must wear a seat belt at all times when traveling in a motor vehicle, if he is between the ages of 8 and 18 years and is 4 feet 9 inches tall or more. A child younger than 8 or under 4 feet 9 inches tall must ride in the child car seat or booster seat that is appropriate for her size and age.
Your child should follow the Georgia seat belt laws and always wear the correct child safety restraint device (seat belt, car set, or booster seat) at all times whenever riding:
- With any member of your household;
- With anyone who is not a member of your household; and
- In a school bus or on public transportation.
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- Published in Criminal, Criminal Defense, Family, Personal Injury