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Plea Bargain vs. Trial

Posted By Emily Ghant (Johnson), Monday, March 23, 2015
Updated: Monday, March 23, 2015

Plea Bargain or Trial?


Every week I get calls from people who want to withdraw their guilty plea.  Over and over I hear “I didn’t want to plead guilty, but my lawyer made me.”  Unfortunately, these people think that they have the right to withdraw their guilty plea, but they are wrong.  You only have the right to withdraw your guilty plea before the Judge sentences you.  Once your sentence is pronounced, it is within the Judge’s discretion whether to allow you to withdraw your guilty plea.  And, once the “term of court” has passed, the Judge does not have the authority to allow you to withdraw your guilty plea and the plea must be attacked through a petition for habeas corpus (which is a difficult and expensive process).  What this means is that you should never enter a guilty plea with the mindset that you will just withdraw your guilty plea at a later date.

 

You also need to understand that your lawyer cannot force you enter a guilty plea.  As best stated by one of the judges I practiced before when I was a prosecutor, “Lawyers don’t tell you whether to plead guilty or go to trial.  They tell you about your options and the consequences of the decisions you make.  Ultimately, you’re the one who decides whether to enter a guilty plea or go to trial.”  These are true words of wisdom that every criminal defendant must know and understand; your lawyer can give you his opinion about whether you should take a plea offer, but you, and only you, decide whether to take the plea offer or take your case to trial.


Some clients come into my office and say, “I just want to plead guilty, get me a good deal.”  Others tell me that they will “never enter a guilty plea.”  Regardless of whether a client wants to enter a guilty plea or go to trial, I have a constitutional duty to get the client the best possible plea offer and then let the client decide whether he wants to take that plea offer or go to trial.

There are many factors to consider when deciding whether to enter a guilty plea or go to trial.  Some of the factors include: the terms of the plea offer, the leniency or harshness of the plea offer, whether the plea is negotiated (both sides agree on a certain sentence), whether it is a “blind” plea (both the prosecutor and your lawyer make recommendations to the Judge, who ultimately decides the sentence), the Judge’s sentencing propensity, the county where your case is pending, whether there is any mandatory minimum punishment, and most importantly the strength of the evidence that that State has against you.  It is critical to discuss these factors with your attorney so you can make an informed decision about your case.  That is why I sit down with all my clients and say, “Here is the offer.  These are the things you need to consider.  This is the evidence the State has against you.  These are your options.  These are the consequences of the decisions you make.” 


Whatever your decision, think long and hard before deciding to enter a guilty plea.  In all likelihood your decision to enter a guilty plea will be final and you will have to live that decision for the rest of your life.


Noah H. Pines is a partner at Ross & Pines, LLC and has been practicing criminal law, both as a former prosecutor and criminal defense attorney, for the past 20 years.

Tags:  court  crime  criminal defense  criminal law  law  plea  sentencing  trial 

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Stalking

Posted By Emily Ghant (Johnson), Wednesday, January 14, 2015

One of our Criminal Defense panel members, Jason Swindle, has been kind enough to help educate the community regarding potential charges associated with stalking.  Please see his take below. If you find yourself a victim of stalking or in need of defense for a stalking charge, call Atlanta Bar Association's Lawyer Referral and Information Service at 404-521-0777, for a qualified attorney who can offer you legal advice.

 

 

STALKING IS A SERIOUS CRIME

 

In Georgia, criminal laws are often misunderstood or just ignored.  The laws addressing the act of stalking should not be in that category.  Many good men and women go to jail because of stalking and the most serious version of this type of offense, aggravated stalking.   

 

Because of space limitations, this is a nutshell version of the topic of stalking in Georgia.  However, there are some plain terms used in Georgia stalking law that are important to understand when thinking about a serious charge like this.

 

1.  CONTACT: You must contact another person to be charged with the offense of stalking.  There are many definitions, interpretations, and arguments about what is and is not “contact.”  Contact can be direct (Reaching someone, not only in person, but also by phone, broadcast, mail, or computer) or indirect such as through a third party.

 

2.  HARRASS OR INTIMIDATE:  This consists of causing the alleged victim emotional distress by putting them in fear of their (or their family’s) safety, by establishing a pattern of harassing and intimidating behavior for no legitimate reason.

(Always be careful when thinking about the word “legitimate.”  An accused’s definition of a legitimate reason may be different than the police officer’s view).

 

The most common way that someone can be accused of stalking in Georgia is when they allegedly put someone under surveillance or contact them without their permission in an effort to harass or intimidate them.

 

STALKING PENALTIES

If a person is charged with stalking, it will be treated as a misdemeanor for the first offense.  The maximum penalty is up to a $1000 fine and 12 months in jail.

 

If a person is accused of a second or subsequent stalking offense, the case will be charged as a felony and the person will face up to 10 years in prison. 

 

AGGRAVATED STALKING

This offense is the most serious and unfortunately the most common form of stalking.

A person may be found guilty of aggravated stalking if they put someone under surveillance or contact them in violation of a protective order (temporary or permanent), restraining order (temporary or permanent), probation, parole terms, or preliminary or permanent injunction.

 

In other words, if a person has been ordered by the court to stay away from another person and not contact them, but the defendant continues to harass them, there is a good chance that an aggravated stalking warrant will be signed by a judge.  (By the way, this form of behavior is also terribly disrespectful to the judge who signed the original order.  Under these circumstances, bond can be very difficult.)

 

AGGRAVATED STALKING PENALTIES

Aggravated stalking is a serious felony. If a person is convicted, he or she will be facing 1-20 years in prison.

The reason that this offense is so common is probably tied to family problems, divorce, family violence, and other strong unhealthy emotions that people have.  Unfortunately, I have seen many good people over the years engage in an emotional downward spiral that eventually leads to aggravated stalking charges. 

 

Fortunately, judges in Georgia are beginning to see the value of psychological and/or psychiatric evaluations coupled with treatment before disposition in these type of cases.  This has two benefits:

1.  The victim can be protected if the defendant’s mental health improves (no one is going to just be locked away forever); and

2.  The defendant gains access to the mental health treatment that may be at the very core of his or her unacceptable behavior. 

 

I will leave you with this.  Remember that you do not have to threaten the alleged victim to be convicted of stalking or aggravated stalking.  In this era of social media, smartphones, and instant communication, it is very easy to be accused of contacting a person for the purposes of stalking by just pushing a button.   

Tags:  aggravated stalking  crime  criminal defense  criminal law  felony  stalking 

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