Basic Felony Procedure

Here is the basic Felony Procedure in Michigan. This will vary somewhat from county to county.

A felony is any charge that carries a maximum penalty of over 1 year in jail. Most felonies start with a minimum maximum penalty of 2 years.

Step One: District Court Arraignment. At this stage, a District Court judge will read the accused the charges including the maximum penalty. At this point, most people simply plead not guilty for the same reason cited in the previous article on misdemeanor procedure. At this time, the judge will also determine is the accused is to remain in custody (jail) or if a bond may be posted for her release.

Step Two: Preliminary Examination. This is like a mini trial at which the prosecution can (and will) call witnesses to testify on the State’s behalf. The purpose of this hearing is to see if 1) there is probable cause that a crime was committed and 2) if the accused committed it. It does not mean that an accused person actually did it or that a jury will later agree. The burden of proof at this stage is “probable cause” not “beyond a reasonable doubt.” In truth, judges virtually always find probable cause at this hearing. Most of the time, the defendant and his attorney decide to waive this hearing to save the time and trouble. Some prosecutor’s will make a plea offer at this point if the defendant agrees to waive the preliminary examination. This offer will be held open until the next court date even if the defendant does not wish to accept the offer at that time. Some counties hold a “pre-preliminary exam” before the actually exam. At this hearing, your attorney and the prosecutor meet to discuss the case and decide of there is a need to run the preliminary exam.

Step Three: Circuit Court Arraignment. The District Court, where the first arraignment was held, only has limited jurisdiction in criminal matters. It can not hear proceedings related to felony charges other than an arraignment or preliminary exam. For that reason, the accused must now be arraigned at the Circuit Court level. This does not mean that the charges are different. It is just a formality. In practice, this arraignment is usually waived at the same of the preliminary examination is waived.

Step Four: Pre-Trial/Status Conference. Like a misdemeanor pre-trial, the prosecutor meets with the defense lawyer to discuss the case including the possibility of a plea bagain. In some counties, the pre-trial in a felony case is called a Status Conference. And while some counties have two pre-trials, many have just one. Most of the time, if a plea bargain will be entered, it must be at this time, though judges often make exceptions and let a defendant plea on the day of trial. It is a risky strategy to assume you will get one more chance though. If you are going to plea, this is the time.

Step Five: Jury Pick/Trial. Unlike a misdemeanor charge where a jury is picked several weeks ahead of time, a felony jury is picked that morning to hear a case that afternoon. There are 12 jurors for a felony plus one or two alternates. A trial proceeds much like a misdemeanor trial, though there are often more witnesses.

Step Six: Verdict. If the jury says “not guilty,” the case ends and the defendant goes home. If the jury says “guilty” a sentencing date will be set. If the defendant has been in custody awaiting trial, he will remain there. If he is out on bond, the bond will continue. (with some exceptions, notably Criminal Sexual Conduct cases).

Step Seven: Post Trial Motions/Appeals. There are a number of different motions that can be filed. They are beyond the scope of this article. Keep in mind that most appeals are not successful.

Step Eight: Sentencing. Felony sentencing is Michigan is governed by the Sentencing Guidelines. This fairly complex statute scores a number of “variable” in computing the mandatory minimum and maximum sentence. The most important factor is the defendant’s prior record. Each previous conviction may contain a number of variables that can quickly add up to alot of time. On the other hand, a first offender or a person with just one or two prior misdemeanor convictions can get very little. I recently had a client who plea guilty to a charge that carried a maximum penalty of 5 years. But, through careful negotiating and decent sentencing guidelines, he got no jail at all. It all depends on each individual person.

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