Criminal Case Procedure: Felonies
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Felony Prosecution typically begins in one of two ways:
- Arrest
- Felony Complaint and Summons
Most felony cases begin with an arrest. Typically, law enforcement are notified to investigate a complaint. For instance, the police may respond to a complaint to investigate an Aggravated Assault, Theft, Burglary, or Homicide. In some circumstances the police make an arrest if during a traffic stop they find illegal drugs. In most circumstances the police will make an arrest and book the accused in the county jail. Thereafter, the investigating officer will immediately prepare a police report and submit it to the county attorney's office for review. If the county attorney decides to pursue and continue with felony charges, a Felony Complaint must be filed in the local justice court within 48 hours. After an arrest, the arrestee must also be brought before a judge within 24 hours for an Initial Appearance.
In other circumstances, after an investigation by law enforcement and review by the county attorney's office, a Felony Complaint can be filed in the justice court and a summons issued directing the accused to appear in court on a specific date and time for an Initial Appearance.
Initial Appearance
At the Initial Appearance, the judge will ascertain the person's true name and address and advise them of the charges against them and advise them of the maximum penalties, if convicted. The judge will also advise the person of their Constitutional Rights. The judge will then set release conditions. The judge will either release the person on their own recognizance or order a secured appearance bond as a term of release. If the case involves a victim the court will normally order the person to have no contact (in some circumstances, no uninvited contact) with the victim. The court will also order the person to remain law-abiding and to advise the court of any address changes. The court will then schedule a Preliminary Hearing.
Preliminary Hearing
A Preliminary Hearing must occur within 10 days if the accused is in custody and within 20 days if out of custody. At the Preliminary Hearing, the State is required to produce sufficient testimony or evidence to convince the Justice of the Peace that "probable cause" exists to believe the accused committed the crimes charged. If the Justice of the Peace determines "probable cause" exists, the person is "bound over" (transferred) for Arraignment in the Superior Court. If the State does not establish "probable cause", then the charges are dismissed. In Mohave County, Preliminary Hearings are rare. Procedurally, the State has the option of presenting a case to the Grand Jury in lieu of the Preliminary Hearing. In Mohave County, most cases are presented to the Grand Jury.
Grand Jury
A Grand Jury is comprised of up to sixteen people who hear the State's case and determine if "probable cause" exists. Unlike the Preliminary Hearing, the person under investigation does not have the right to be present during the presentation and, accordingly, cannot defend the proceeding (although the person can request to testify before the Grand Jury). If at least nine members of the Grand Jury determine "probable cause" exists, then they hand down an "Indictment" (which is a formal charge) and the case is "bound over" (transferred) to the Superior Court for Arraignment.
Arraignment
At the Arraignment, the court will ascertain the accused's true name, address, and advise them of the charges against them. A "not guilty" plea will then be entered. The court will ask the prosecutor if the accused has any other cases pending in the Superior Court and whether or not any sentencing enhancements (for instance, prior felony convictions) apply. The Court will advise the accused of the applicable sentencing range, if convicted. The court will order both the State and the Defense to comply with the disclosure of witnesses and evidence rules and will schedule a Case Management Hearing which usually occurs three weeks after Arraignment.
Case Management Hearing
At the Case Management Hearing, the court will ascertain whether any disclosure issues exist, whether any plea offer has been or will be made and whether any known motions or pre-trial issues are to be addressed. The court will then schedule and Omnibus Hearing, typically three weeks later.
Omnibus Hearing
Prior to this hearing, the State and the Defense will mutually prepare an Omnibus Hearing Form to present to the Court. The purpose of this form is to specifically identify any legal issues which must be resolved prior to trial. For instance, it is common for the Defense to identify a potential motion challenging a search and seizure. At any time, if a plea agreement is reached between the State and the Defense then the Court will schedule a Change of Plea Hearing. If a plea agreement has not yet been reached at the Omnibus Hearing, then the Court will schedule a Jury Trial.
Change of Plea Hearing
If a plea agreement is reached between the State and the Defense, a Change of Plea Hearing will be conducted. At this hearing, the defendant will enter into the written plea agreement and the Court is required to thoroughly review the plea agreement with the person and advise them of their Constitutional Rights. The Court must also find a "factual basis" for the guilty plea. The Court cannot accept a plea agreement unless the Court determines that the person has knowingly, intelligently, and voluntarily entered into the plea agreement. Thereafter, the Court will then schedule a Judgment and Sentence Hearing approximately thirty days later.
Jury Trial
All felony offenses are tried by jury. A felony Jury Trial is comprised of eight jurors who are selected after an extensive questioning process. However, if the accused can be sentence to more than thirty years in prison, if convicted, or can receive the death penalty, then the jury will be twelve members. After the State and the Defense present their respective testimony and evidence and argue their case, the jury then deliberates and decides whether to find the defendant "guilty" or "not guilty". In rare circumstances, if the jury cannot make a unanimous decision, a "hung jury" is declared. The State can retry the case with a different jury, make a different plea offer, or dismiss the case. If the defendant is found "not guilty", a not guilty verdict is entered and the charges dismissed. If the person is found "guilty" on any charge, then the Court will schedule a Judgment and Sentence Hearing which occurs in approximately thirty days.
Judgment and Sentence Hearing
Prior to sentencing, the county probation department will prepare a Pre-Sentence Report for the court's consideration. The Law Office of Billy K. Sipe, Jr. will also prepare a professional and thorough Sentencing Memorandum in order to submit all relevant mitigation to the Court before Judgment and Sentence. After the judge considers all relevant information and recommendations, then the judge will impose a sentence the Court determines to be appropriate under all of the circumstances. Typically, the Court will either impose a term of supervised probation or will impose a prison sentence.
Probation Violations
If a person is placed on supervised probation, several specific terms and conditions are imposed and it is expected the person will comply with all terms and conditions. If it is alleged that the person fails to comply with any term, a Petition to Violate Probation can be filed. If the Court determines that the person did violate any term of probation, then the Court can either reinstate probation and impose additional terms and restrictions, or the Court can revoke probation and impose a prison sentence.
