By: Mark Diaz
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Criminal Law Questions Answered By Galveston Attorney Mark Diaz
Galveston Criminal Defense Attorney Answers Common Criminal Law Questions
Do Criminal Law Attorneys have payment plans?
Well, most do. It’s going to depend on the complexity of the case, the amount that we’re talking about, and the length of time it would take to resolve the case. We offer them here at my Galveston criminal defense law firm, and I think most of the lawyers that I know also have payment plans. Great question.
Do first-time felony offenders go to jail?
That’s a hard question to answer because it would depend upon the first offense. So if it’s a first felony offense for let’s say, drugs? No, there’s not a substantial likelihood of jail, there’s probably more likelihood of getting probation or deferred adjudication. Of course, if it’s a felony offense of murder then there’s a substantial likelihood of doing jail time. So there’s not a real easy way to answer that. Many times the answer is no, we can find some alternative. Also many times we can find a way to get a felony reduced. That’s about the best I can do on that one.
What area of criminal law Do you specialize in?
We have sort of a broad range. Thomas here in the office specializes in DWI. That means that he attends continuing education courses specifically in DWI, different sciences, from blood draw issues to breath test machines, and things like that. I have Jessica, who would say that drug cases, possession of controlled substance cases, are her favorite. Myself in my career, I’ve tried everything from prostitution to capital murder. So for me, it’s broad.
How long can you stay in jail for assault?
If we’re talking about misdemeanor assault, it’s a class A misdemeanor, and the maximum penalty is up to a year in the county jail and a $4,000 fine. Now, that being said, we have lots and lots of people that don’t go to jail for assault. There’s a wide range of options, depending upon the circumstances of the case, but there’s always probation, deferred adjudication, sometimes we get time served with a fine. There are lots of options other than going to jail. Assuming someone went to a jury trial on a class A misdemeanor assault and the jury found them guilty and then assessed punishment, it could be up to a year, though it’s very rare for someone to get a year on a simple misdemeanor assault.
What is the difference between a felony misdemeanor and an infraction?
Range of punishment. A felony means prison time. A misdemeanor carries with it county jail time. Then an infraction, or Class C misdemeanor, there is no jail time, it’s a fineable offense punishable by up to $500 in fines. With all of them, the possibility of probation exists. Generally speaking, the difference between a felony misdemeanor and a Class C is just going to be the range of punishment that’s involved.
Is illegal possession of a firearm, a federal crime, and what makes a charge federal?
If the illegal possession is because of a prior felony, yes, that can be a federal charge. What makes the charge federal is the person with the prior felony is a prohibited person. What makes it federal is that the gun would not have been manufactured in Texas. So the gun traveled in interstate commerce, which gives the feds jurisdiction to charge the case. Now, does that mean the federal government always charges felons in possession of a weapon? No. A lot of times they don’t. There’s no real rationale as to why they do. However yes, it can be, and oftentimes is. Here in Galveston county recently, they’ve had an uptick in federal charges being filed on felons in possession of a weapon.
What is the difference between probation and parole?
Probation is the sentence that you get in place of incarceration. Instead of going to prison, you’re placed on probation for a term of years. If you violate that probation, then you can be sent to prison for a term of years. Parole is different in that parole means you have been to prison, you’ve been let out early, and you’re serving the remainder of that sentence on parole. So they’re different in that one is to avoid prison, one means you got out of prison early.
Essentially, the reporting requirements are the same, you have to report once a month to an officer and you are subject to random drug testing. One big difference is if you violate your parole, there’s a limit to what number of years you could go back to prison because there’s a limit to how many years your original sentence was.
If you’re on deferred adjudication, which is a type of probation, that means in the end, you do not end up with a felony conviction. The entire range of punishment for that offense would be open, meaning if you had a first-degree felony, which is a punishment, range of five to 99, or life and a fine not to exceed $10,000, and you take 10 years deferred adjudication, and then at some point during the 10 years, you violate it, a judge can sentence you from anywhere in the original range of punishment of five years to 99 years or life.
I’ve seen that happen. Now the opposite of deferred straight probation, which means you are convicted, but you still get to avoid jail time, has a term attached to it. For instance, it might be five years, and TDC probated for five years. That means that if you violate, you’re capped at five years, you can’t get more than five. On straight probation, you generally know what your maximum could be, on deferred you would not.
What is restitution in the criminal law context?
Restitution in the criminal law context generally means that you’re paying money for some damage caused. Let’s say you break into someone’s car, or house, in the commission of the crime that you’re charged with, it’s alleged that you caused monetary damage to someone.
Sometimes, as a result of plea bargain efforts, restitution becomes an issue. If we pay restitution and pay it upfront, can we negotiate the punishment? Sometimes, like on bigger theft cases, maybe someone’s stolen from their employer over years, and the dollar amount is much larger than someone would be able to pay upfront, then it becomes a part of probation, or deferred adjudication, that you have to pay X amount of dollars in restitution over the term of probation.
Before I move on from that, we talk about probation, community supervision, and deferred adjudication, but they’re all used interchangeably. In reality, it’s all community supervision. Then there are distinctions: probation means that it was a straight conviction.
Deferred adjudication, which is still under the umbrella of community supervision, means that you are not convicted. If you complete that deferred, then the case would be dismissed, and you would never become convicted of the offense. Generally speaking, they’re all under the umbrella of community supervision and corrections. Out here in the real world, everyone just calls it probation. Even if it’s deferred.
Can the judge send me to jail even if I get probation?
Yes. Whether it’s a felony or misdemeanor, judges do have a number of days that they can sentence you to as a condition of probation. It very rarely happens without knowledge, because if it’s a negotiated case, then I’ve negotiated a plea bargain and we have some idea of whether or not the court is going to take it.
After 23 years of practicing, I can’t remember an instance where I had gotten probation and then all of a sudden out of nowhere, the judge incarcerated my client. What does happen frequently is if we go to a jury trial, and the jury gives us a probated sentence. Sometimes the judge will add days in jail as a condition of that probation. Technically speaking, yes, the judge can send you to jail, even if you get probation.
If you have questions about a case you may have call Galveston criminal defense lawyer, Mark Diaz at (409) 515-6170 or use the form on our contact page for a free initial consultation.