Brian P. Johnson, Esq. – Criminal Defense Attorney located in Greenville SC – handling cases throughout Upstate SC
When you are arrested in the Upstate, South Carolina, the Law Office of Brian P. Johnson, LLC, conveniently located in Greenville, South Carolina, is here to help you protect your rights.
A conviction can lead to jail time, a criminal record, a significant fine, or the loss of your job. It can be stressful and overwhelming to deal with these charges on your own. Furthermore, it is important to remember that Police Officers and Prosecutors are well trained in the law and experienced with Court procedures. Consequently, you are at a disadvantage if you try to fight your charges without legal counsel. It is important that you have the guidance of an experienced attorney working to protect your rights and to advocate for the best possible outcome.
If you’ve been charged with a crime in Greenville or Upstate, South Carolina, it is important that you know your rights even before you’ve spoken with an attorney. After being arrested, people are often anxious because they do not understand what the law allows them to do or say.
When you are Arrested
A person’s right to remain silent during a police investigation, arrest or after an arrest is the one of the most well know rights in the United States. What many people don’t realize until they are in a criminal situation is just how hard it is to assert this right. The police are trained to get people to speak with them and they use different strategies to get people to speak with them.
First and foremost, when you are arrested it is imperative to not incriminate yourself. This is why, per the Miranda Rights, it is usually advisable not to speak until you have consulted with an attorney. Essentially, Miranda is the Supreme Court providing you with legal advice.
There are two major components of Miranda. First, you can (and should) remain silent, or they can use what you say in a case against you. Second, you have the right to an attorney, and one will be appointed if you cannot afford one. The latter essentially shows how crucial the Supreme Court believes it is for each person to have the guidance of an attorney.
For example, when being arrested they will encourage you to speak with them regarding your case in exchange for consideration on your bond. Many will take a chance and speak with them in hopes that their detention will be brief and they are able to secure a reasonable bond.
There is no hard line strategy when deciding whether to exercise your right to remain silent and so whether you should exercise that right depends on the situation. There are times where answering their questions will exonerate you. There are also times where answering their questions incriminate yourself. I suggest respectfully asking if you may consult an attorney before answering questions if you are in a situation where you are interested in speaking with police but your arrest isn’t imminent. On the other hand, if you arrest is imminent, it is very unlikely that you will stop that process and so it best to simply remain silent and respectful.
With all this said, remaining silent doesn’t mean you don’t have to tell the police basic information such as your name, etc. Refusing to do so isn’t a crime but it is likely to cause you to be detained while they figure out who you are.
Legal Process after an Arrest
After being arrested, you will be arraigned and given a bond. The value of the bond depends on the seriousness of the charge and allegations against you. Moreover, more serious charges, such as murder and burglary in the first degree, do not allow for a bond at the arraignment. The bond process is governed by Title 17, Chapter 15, of the South Carolina Code of Laws.
The court can reconsider the initial bond amount at a certain point in time depending on the circuit. For example, in Greenville County, bonds can be reviewed after discovery is produced, or as agreed upon by the Defendant and Solicitor (i.e. a consent bond). Bond reductions can be a lengthy process, which makes hiring an attorney more urgent.
Magistrate Court vs. General Sessions Court
Charges which carry a penalty of 30 days or less in jail are tried in the Magistrate Court. These charges generally have court dates within a few weeks of being charged. The initial court date is a bench trial, which is a trial by the Magistrate Judge. However, most attorneys prefer to request a jury trial instead. A verdict must be unanimous, so it is statistically easier to prove reasonable doubt to a jury of six people versus one Judge. Furthermore, a jury trial provides more time for an attorney to request, collect, review, and investigate the evidence.
General Sessions hear charges that carry more than a thirty day jail penalty. It can take many months to get an initial court date, and most circuits have a track system, which is a three step process. The first court appearance is essentially to confirm that you have an attorney (or will hire one). If you have secured an attorney prior to this date, he can generally handle the court appearance without you being present. The second appearance generally informs the Court whether there will be a trial, plea, dismissal, etc. The third appearance is your actual trial or plea date.
Preliminary Hearings
After someone is arrested on General Sessions level charges they will be provided with a notice of their right to a Preliminary Hearings. A Preliminary Hearing is a proceeding where the Court will verify that the Police had probable cause to arrest you. Probable cause is a more likely than not standard or numerically illustrated as there is a 50.1% chance that you are guilty. This standard is much lighter than the “beyond a reasonable doubt” standard required for a conviction.
The Hearing itself is based solely on the arresting officer’s testimony and so there is no other evidence entered and the Defendant does not get to testify in his/her defense. The Defendant does indeed get to question the officer and make an argument to the Judge for a dismissal. You have ten (10) days from the date of your notice of right to a preliminary hearing to make the request.
Criminal defense attorneys use preliminary hearings to attempt to have charges dismissed and sometimes simply use it as an opportunity to question the officer early in a case. If a charge is dismissed, the Solicitor still has the opportunity to prosecute you but must pursue an indictment through the grand jury process. An indictment is the document that allows the state to place a defendant on trial.
Magistrate level charges do not require a preliminary hearing.
The Grand Jury
The grand jury is a proceeding where eighteen (18) people are summoned to decide whether to allow a case to proceed to trial. In this proceeding, only the State presents evidence and nor the defendant or his attorney is allowed to be present. Only twelve (12) of the eighteen (18) have to find that there was probable cause for the arrest for the case to proceed to trial. As a result, most charges are often indicted. However, without an indictment the case is likely to be dismissed.
Discovery of Evidence
After you are charged, you can request the evidence that they have against you. This is done through a SC Rules of Criminal Procedure Rule 5 Motion and/or a Brady vs. Maryland motion.
A Rule 5 request specifically requires the State to produce: (A) Statement(s) of Defendant, (B) Defendant’s Prior Record, (C) Documents and Tangible Objects, (D) Reports of Examinations and Tests. A Brady vs. Maryland motion requires the State to produce all evidence favorable to the Defendant. The evidence produced is colloquially known as “discovery” or a defendant’s “motion of discovery.”
Generally, an attorney will also file a SC Rules of Criminal Procedure Rule 6 Motion along with the aforementioned evidence requests. This formally files an objection to the introduction of a report without such person being personally present at the trial. It further requests the appearance in Court of persons within the chain of custody of all physical evidence. Overall, this serves notice that you will not make it easy for the State to prosecute.
Disposition of Charges
After the discovery evidence is produced, you begin to work towards a resolution of a charge. There are four main types of resolution: 1. a dismissal of the charge, 2. a diversion of the charge, 3. a guilty plea or a 4. trial.
A dismissal could be to insufficient evidence of guilt. Of course, this could mean that you are not guilty or it could mean that there is not enough evidence to prove guilt.
A diversion of the charge is a program that eventually results in a dismissal or expungement of your record. For example, PTI or pretrial intervention is almost universally available in the state of South Carolina. In this instance, you do a series of drug classes, etc. and then the charges dismissed upon successful completion.
Another common program is a conditional discharge for drug offenses. In this instance you plead guilty but the charges expunged if you complete the requirements of the program.
In both instances, the programs are not available to you by right, it generally involves someone who is being charged with a crime for the first time and the State must be convinced to offer a defendant an opportunity to enter the program.
With a guilty plea you admit guilt as charged or to a reduced charge. However, it is important to note that attorneys don’t advise their clients to plead guilty because they’re guilty; rather, attorneys advise this when the State offers a benefit in exchange. For example, if you are charged with Armed Robbery that carries 10 – 30 years, a guilty plea to Strong Arm Robbery, that carries 0 – 15 may be an option that is advisable to take if it is on the table.
In other instances, recommendations of a probationary sentence in exchange for a guilty plea might be obtainable. A probationary sentence allows a defendant to be supervised in the community rather than be sent to prison.
Post Guilty Plea Options
If someone has been sentenced by the Court as the result of a guilty plea or conviction from a trial, he can petition the court to reconsider the sentence. In most instances, the request is to reduce the sentence.
A Motion to Reconsider is done generally when a defendant feels that the Court failed to consider an important fact during sentencing. This happens most often when important character witness could not appear or perhaps the parties forgot to present certain evidence of rehabilitation like the completion of a drug course or counseling.
Trial
If the defendant in the state cannot come to an agreement, the charges generally end up in trial.
During a trial, the defendant has extensive rights. Including, the right to confront the witnesses who might testify against him, be judged by a jury of 12 people, and testify in his own defense. To be convicted, all 12 must reach the same decision, and it is hard for 12 people to agree.
Post Trial – Appeal
If the defendant is found not guilty, he cannot be tried again. However, if I defendant loses his or her trial, he can appeal the case if he feels that he was wrongly convicted because the court made a mistake of law.
For example, if a judge improperly allowed a piece of objectionable evidence to be seen by the jury doing the trial, then a defendant might be entitled to relief on appeal. Hearsay, an out of Court statement made by someone who did not testify at trial, is a common objection made by attorneys. A defendant may be entitled to relief on appeal if the Court improperly allows hearsay to be heard by a jury.
Post Conviction Relief
If you have been convicted as the result of a plea or trial, you can request post conviction relief if you believe your lawyer was ineffective.
These claims generally involve the attorney giving erroneous legal advice. For example, an attorney improperly explaining a sentencing range. If you win one of these cases, your case starts over from the beginning.
AREAS OF PRACTICE
We handle all matters of Magistrate, State and Federal Criminal Defense, including, but not limited to:
Bench Warrants
Parole and Probation Violation
Expungements
Juvenile Crimes
Property Crimes
- Burglary
- Grand Larceny
- Shoplifting
- Auto Theft
- Possession of Stolen Property
- Forgery
- Check Fraud
- Credit Card Fraud
- Identity Theft
TIME TO ACT
Now is the most critical time to hire an attorney with the experience and knowledge necessary to provide aggressive support in court. Remember, you are at a disadvantage when you are arrested because you are unfamiliar with the laws and court system. Our office has handled thousands of cases, AV Rated and we can help you effectively deal with any criminal charge. We have extensive experience with criminal charges; moreover, we have high profile case experience, which ensures that we can professionally manage even the most complex cases.
In order to be flexible and convenient, we have open office hours, easy appointment scheduling, and payment plans available. Call today and schedule your free and confidential consultation. Our law office focuses on those accused of crimes across Upstate, South Carolina, including: Greenville, Spartanburg, Anderson, Pickens, Laurens, and Oconee counties.
Disclaimer: this information should not be construed to be formal legal advice.