Criminal Defense of Felony and Misdemeanor Charges
At Robert W. Brown, Jr., no matter what felony or misdemeanor offense you have been charged with, you will get the professional legal help you need. In defending a criminal prosecution, it helps to know the inner workings of the prosecutor's office. Robert Brown is a former State's Attorney, so he has special knowledge of how and why criminal charges are brought. Mr. Brown is a respected and experienced criminal defense attorney in Lake County ready to help you with personalized, quality legal representation.
This glossary of criminal charges and terms will help you understand the criminal offense you are charged with.
Felony: an offense that carries a sentence of death or a term of imprisonment in a penitentiary for one year or more. Felonies are classified according to the amount of time a defendant may be sentenced to the penitentiary.
Class X felony: not less than 6 and not more than 30 years
Class 1 felony: not less than 4 and not more than 15 years
Class 2 felony: not less than 3 and not more than 7 years
Class 3 felony: not less than 2 and not more than 5 years
Class 4 felony: not less than 1 and not more than 3 years
Fines for a felony are $25,000 or the amount specified for that offense, whichever is greater.
Under some circumstances a defendant may be eligible for an extended term, effectively doubling the sentence. This is usually due to aggravating factors such as a person’s prior criminal record.
Misdemeanor: an offense that carries a sentence to a term of imprisonment in a facility other than a penitentiary for less than one year and/or a fine. Misdemeanors, like felonies, are classified according to the possible time a defendant may be sentenced to the county jail.
Class A misdemeanor: not more than one year, fine not to exceed $2,500 or the amount specified in the offense, whichever is greater.
Class B misdemeanor: not more than 6 months, fine not to exceed $1,500.
Class C misdemeanor: not more than 30 days, fine not to exceed $1,500.
Petty offense: an offense for which a sentence of a fine only is allowed (i.e. speeding ticket). Fine not to exceed $1,000 or the amount specified in the offense, whichever is less.
For some criminal offenses, penitentiary or county jail time is mandatory, but for others, a period of probation, a term of periodic imprisonment, or conditional discharge is available. Court supervision is not available for felonies (with the exception of some drug possession charges where 570/410 probation is available and similar to supervision). Supervision is not available for some misdemeanor charges such as Unlawful Use of a Weapon, Domestic Battery, Resisting Arrest, and a second DUI.
Court supervision: "a disposition of conditional and revocable release without probationary supervision, but under such conditions and reporting requirements as are imposed by the court at the successful conclusion of which disposition the defendant is discharged and a judgment dismissing the charges is entered." 730 ILCS 5/1-21. Court supervision is unique to Illinois; it is a way of avoiding a conviction. Court supervision is not recognized by the Federal Government and many other states.
Probation: "a sentence or adjudication of conditional and revocable release under the supervision of a probation officer." That period of probation is for a fixed period of time, but may be extended or revoked for violations while on probation. If revoked, the defendant may be re-sentenced to prison or jail.
Conditional Discharge: similar to probation, but generally does not involve direct reporting to a probation officer. Conditional discharge has less stringent requirements than probation.
Periodic Imprisonment: a sentence of imprisonment during which the committed person may be released for periods of time during the day or night to work, seek employment, attend to family needs or obtain medical treatment.
After the defendant is arrested
Defendants usually enter the criminal justice system in one of two ways: either having been arrested by a police officer during the commission of a crime, or by being picked up on an arrest warrant issued by a judge based upon sworn testimony by a police officer.
Regardless of where a defendant may be arrested, he is generally tried in the county (venue) in which the offense was committed.
A crime must be prosecuted (Statute of Limitations) within three years for a felony and 18 months for a misdemeanor. There are, however, many exceptions to this general rule and for some crimes there is no statute of limitations. If a defendant is in custody, he must be tried within 120 days from the date a "speedy trial" demand is filed. If a defendant is not in custody, he must be tried within 160 days from the date a "speedy trial" demand is filed.
Unless the bond is set by a court rule, or the defendant posts a previously-set bond at the police station, he is afforded a prompt bond hearing before a judge. Before setting bond, a judge hears about the nature of the alleged offense, any past criminal history, the defendant’s ties to the community and the seriousness of the criminal charges. The bond may be in a cash amount, such as $10,000.00 for which the defendant must post 10% or $1,000.00 to be released from jail. Alternatively, the defendant may sign a personal recognizance bond which requires no cash to be posted; the defendant merely promises to appear at all future court dates. The amount of a criminal bond is subject to change by the judge. Either the prosecution or the defense, upon proper notice to the other side, can seek reduction or increase depending on the circumstances. All or a portion of a bond may be refunded to your attorney, with your consent, if so ordered by a Judge.
Defendants "out on bond" must appear at all court dates and follow court orders. They may not leave the state without permission or violate any laws. Defendants must surrender all firearms and may be ordered to undergo medical or psychiatric treatment. Further, the court may impose any other conditions it sees fit. In Lake County a defendant may be supervised by pre-trial services.
At the conclusion of the criminal proceedings, the bond is refunded to the defendant, or his attorney, less the statutory 10% fee. Before that refund is made all fines and court costs are deducted.
Following the bond hearing, if any, the next court date for misdemeanor charges is the arraignment date or status of attorney date. For felonies (once it is determined who will represent a defendant), the matter is set for a preliminary hearing or examination before a judge. Preliminary examination is a hearing before a judge to determine if there is probable cause to believe that the person accused has committed an offense.
Few felony cases ever reach that point in Lake County because most defendants are directly indicted by a Grand Jury. Felony indictments of the Grand Jury are returned in open court and a new court date is set. The defendant and his attorney are notified of the new date and are told which felony judge to appear before for arraignment.
Criminal charges must be in writing, stating the name of the offense, the statute violated, the nature and elements of the offense, the county and date where the offense occurred, and the name of the accused.
Once a defendant has retained an attorney, the attorney will typically meet in person with his client during an office interview to learn the facts surrounding the case. At the first court date, either at the bond hearing or the status of attorney date, an attorney will file his appearance notifying all concerned that he represents the defendant and that no one is to speak with the defendant without that attorney being present.
Generally, an attorney will enter a plea of "not guilty" at the arraignment on the defendant’s behalf. Motions for usual and customary discovery are made at that time. Future court dates for a pre-trial conference and trial date will then be set.
An attorney may also file various pre-trial motions challenging the constitutionality of the arrest or seeking to suppress certain physical evidence or statements allegedly made by defendants. Motions to dismiss the charges, for a Bill of Particulars, to change the place of trial, severance of related crimes or defendants may also be made.
A written answer to discovery must be complied with by the prosecution within a fixed number of days, usually fourteen. The order for discovery requires the prosecution to turn over police reports, lab reports, photographs, physical evidence for testing, expert opinion reports, wire taps and any statements allegedly made by a defendant to the police.
Once all this information has been received, the attorney will plan his client’s defense, file any necessary motions, and discuss any options.
Preparing for trial
Most attorneys agree that thorough preparation before trial is imperative. In order to thoroughly prepare a case for trial, an attorney should conduct an extensive interview with his client, learning the facts and discussing what is and is not corroborated by the police reports, witness statements and physical evidence.
If the police officer’s testimony deviates from his reports at trial, the officer can be impeached with the reports. Ideally, if witnesses can be interviewed prior to the prosecuting attorney speaking with them on the eve of trial, valuable statements may be obtained. It is vital that an attorney formulate a theory of defense and build evidence to support that theory. At some point a defendant and his attorney must decide if the defendant is going to testify.
Judge or jury trial
If it is perceived that a defendant will make a poor witness, has an unfavorable appearance or demeanor on the stand, or has a prior criminal history, taking the witness stand could be a costly mistake.
In Illinois a defendant has a constitutional right to a trial by jury composed of twelve people drawn from the community, or the defendant may waive a jury and have a judge decide his case. The defendant has a statutory right to one substitution from the judge hearing his case if the motion is made in a timely fashion. In certain serious felonies, a defendant may be able to take a change from more than one judge. A defendant in a criminal case always has a right to challenge a judge for cause if he feels the judge is biased or prejudiced regarding his case.
At any trial, either by a judge or a jury, every defendant in a criminal case has the following rights:
1. Plead not guilty or persist in any not guilty plea previously made
2. Presumed innocent of the charge(s) filed
3. Require the prosecution to prove guilt beyond a reasonable doubt
4. Not required to testify against oneself
5. See and hear the prosecution’s witnesses and evidence in open court and have an attorney cross-examine those witnesses
6. Present evidence or call witnesses (including expert witnesses) of one’s own and have the court require them to come to court and testify
If a defendant fails to appear for trial and the prosecution has proven through substantial evidence that the defendant is willfully avoiding trial, the court may conduct a trial in his absence. If found guilty after a jury trial, the court can conduct a sentencing hearing and impose a sentence. An arrest warrant is issued and the defendant goes directly to jail or prison when he is found.
After reviewing the facts and evidence with an attorney, one may elect to have him negotiate the case (enter into a plea bargain with the state) in an attempt to reach a favorable disposition. If it is thought that the prosecution is being unreasonable, one may elect to take a straight plea in front of the judge. If one elects to proceed with a straight plea, then the defendant waives his right to a trial and the aforementioned rights. The defendant cannot pick and choose the crimes he wants the judge to sentence him to. Rather, he must plead to all offenses charged.
If after a trial by a jury or judge the defendant is found not guilty, he shall be discharged and cannot be retried again for the same offense because of the double jeopardy provisions of the Constitution. If a motion for a mistrial is granted, then under most circumstances the defendant can be retried. In most cases, if a defendant is found not guilty, he will be entitled to have his entire arrest expunged.
If a defendant is found guilty or pleads guilty in what is called a "straight plea," and not as a result of the plea bargain, he is entitled to a sentencing hearing before the same judge who accepted his plea of guilty.
At this point in the legal proceedings, the court usually orders that a PSI (pre-sentence investigation) be prepared by the adult probation department. This report gives the judge sentencing alternatives and discloses the defendant’s criminal record, education, employment, medical and psychological issues, drug usage, impact upon the victim and other relevant information.
At a subsequent sentencing hearing, the prosecution may attempt to introduce evidence of one or more of these factors: that the defendant’s conduct caused or threatened serious harm, that he received compensation for the offense, has a prior history of criminal activity, held public office, and that a harsh sentence is necessary to deter others from committing the same crime. These and a host of other factors are considered "Factors in Aggravation" under [730 ILCS 5/5-5-3.2.}
The defendant is entitled to introduce "Factors in Mitigation" [730 ILCS 5/5-5-3.1} including, but not limited to: his criminal conduct neither caused nor threatened serious physical harm; he acted under strong provocation; his conduct was induced or facilitated by someone else; he had no prior criminal history; and the criminal conduct was a result of circumstances unlikely to reoccur; that it would be unlikely that he would commit another crime; that imprisonment would entail excessive hardship; and that he is likely to comply with the terms of probation.
Even when a defendant has been convicted of a crime and sentenced, he is entitled to appeal that conviction, or attempt to withdraw a plea bargain or straight plea. That motion must first be made before the judge who presided over the case and then before the appropriate appellate court unless a direct appeal to the Illinois Supreme court is permitted.
In any criminal proceeding, the key to protecting your rights or the rights of a loved one is obtaining the services of an experienced and highly-qualified criminal attorney.
The Law Offices of Robert W. Brown Jr. P.C. in Libertyville, Illinois is devoted to representing the rights of those who have been arrested.
Note: There are literally thousands of crimes and offenses in Illinois and the General Assembly adds hundreds more each session. Therefore, it is beyond the scope of this website to discuss all of them.
In Illinois most criminal statutes (other than traffic entitled "Vehicles" Chapter 625) are found in the Illinois Complied Statutes, Chapter 720 "Criminal Offenses," Chapter 725 "Criminal Procedure," and Chapter 730 entitled "Corrections." These publications may be found in any public library or on our Web Resource page.
DISCLAIMER: The information contained in this web page is not intended to serve as legal advice or as a substitution for a consultation with a qualified criminal attorney. New laws are frequently passed by the General Assembly and the Appellate Courts of Illinois are constantly issuing opinions interpreting how the law is to be applied, therefore it is imperative that you consult with a legal professional.
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