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JB Umphrey
JB Umphrey, Lawyer
Category: Criminal Law
Satisfied Customers: 20232
Experience:  Handling criminal and probation matters for over 14 years.
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I am 53 and my wife is 61. We neither have ever been charged,

Customer Question

I am 53 and my wife is 61. We neither have ever been charged, arrested or involved in any violent act. We had an argument. She rolled over in bed with her back to me. I grabbed her upper arm to roll her back toward me so I could see if she was hearing me and her facial expressions. She jerked her arm away and left our residence to drive around. She saw a Sheriff's car and told them what happened. I was asleep and the next thing I know there are flashlights in my face. My wife takes medicine for high blood pressure and is very pale. The deputies said there were faint bruises or her arm and arrested me for simple battery (the bruises were gone the next day as she wore a short sleeve shirt to work according to her). She asked them not to arrest me, but they did. I spent four days in jail and she paid $300 for a bond to get me out. She says she cried every night, which I did also and she admits she did it out of anger and to scare and had no idea I would be arrested. I am concerned about this being on my record, do not want more jail time, cannot afford a fine, we are already seeing a marriage counselor biweekly and I receive individual counseling monthly for Bipolar Disorder so I would prefer and do not believe Anger Management would be of any benefit. My wife stands by me and we are fine now. What is the best way to approach this castrophy?
Submitted: 2 years ago.
Category: Criminal Law
Expert:  JB Umphrey replied 2 years ago.
Hi and thank you for using JustAnswer!

I am sorry to learn of this experience. What is the outcome that you are seeking?
Customer: replied 2 years ago.
To have everything dropped with my time served (4 days in jail), no fine, probation, blotch on my record, anger management or anything. Husband and wife had an argument. Wife got the law involved without understanding the ramifications. Let us retire and live our life peacefully. The four days were hell for me and her also.
Expert:  JB Umphrey replied 2 years ago.
Thank you. Have you hired a criminal defense attorney to represent you in court?
Customer: replied 2 years ago.
No, I assumed that would be your first question. I do intend to, but came here to learn what my options and probabilities were as I will have a public defender and frankly do not trust the process. That is why I am here.
Expert:  JB Umphrey replied 2 years ago.
The public defender will review the police reports, any written statements, etc. and will meet with the prosecutor to discuss any possible plea bargain.

I cannot predict what your particular prosecutor will do.

It's remotely possible that the prosecutor will dismiss the charges. Unlikely but remotely possible.

What's more likely is that they will offer you the opportunity of a probation-only sentence (no jail) and maybe some counseling classes. You'll know more once you're public defender has met with the prosecutor.

It has been my pleasure to assist you today with your information needs. It is my goal that you are satisfied. No expert can promise you an answer that is favorable to your circumstances. But I will do my very best to explain the legal principles that are related to the facts you’ve described so that you can better understand the “why” of things.

If you have a follow-up question, please reply and ask it.

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JB Umphrey, Lawyer
Category: Criminal Law
Satisfied Customers: 20232
Experience: Handling criminal and probation matters for over 14 years.
JB Umphrey and other Criminal Law Specialists are ready to help you
Expert:  JB Umphrey replied 2 years ago.
The comments in your feedback were cut off and only read: " I learned absolutely nothing I did not already know. That was just common sense information. I was specifically for tips on how best to mit"

Did you wish to clarify?
Customer: replied 2 years ago.
I was looking for strategies or tips. Such should my wife testify? Should I testify? Should I plead guilty? I can I plead no lo? My PD will meet with the DA, that is obvious and I know no results can be predicted for a future resolution, but given the facts I presented, I wanted to know the best way to proceed. All I received was common sense advice I already knew.
Expert:  JB Umphrey replied 2 years ago.
Okay, let's put out a pause.

How did we go from you originally saying that you wanted a dismissal (everything dropped) to you now considering pleading guilty? Where did that come from?
Customer: replied 2 years ago.
OK, this is the wife asking now. TO make matters more simply understood and clarified; are there any similar cases (not pending) completed and precedents set in the State of Georgia. How does the Judge and prosicution see cases as ours? Or they bored from hearing a million of them and just want to get it over with with the usual black & white actions? Or, are they compassionate and willing to listen to individual statements? What is the average means of response to such? What is the best way to approach the PD, bench, etc, etc, in order to drop the case and all records? This is a serious matter to us and we need meatier legal advice or a ways and means to look it up ourselves. Thanking you in advance.
Expert:  JB Umphrey replied 2 years ago.
It is important to realize that most cases which are handled in the trial courts do not have published legal opinions.

Published legal opinions or decisions only come from those few instances where there has been an appeal/disagreement over an issue of law.

Given that context, it is not possible to refer to you published decisions of similar cases that are of binding precedent in GA. They simply do not exist.

You see, there is a law which criminalizes domestic violence. The legislature sets the parameters of what the possible penalties can be in the event of a plea or conviction.

The prosecutor has the burden of proof if the case goes to trial.

However, a lot of cases are "resolved" without a trial. They are resolved through the plea bargaining process. What the prosecutor of your case will do, what the judge assigned to your case will do, depends upon that individual. There are great prosecutors to deal with and there are others that are just miserable people. Same is true with judges. Same is true with defense attorneys. In the event of a conviction or plea, the judge is given great latitude in how to sentence.

At this point, the police department cannot drop the charges. They don't have that authority.

The judge can't drop the charges. S/he doesn't have that authority.

Only the prosecutor can drop the charges at this point. If that's the goal, then, at the next court date, you can express your wish to the prosecutor. The prosecutor can drop the charges or decide to go forward with the case.

Or, your husband's attorney can discuss possible plea agreements with the prosecutor. What those options will be, I don't know. Each prosecutor is different and they bring their own philosophy to the table.

The best thing that can be done is to have the public defender review the police reports, any written statements, etc. and meet with the prosecutor to discuss any possible plea bargain.

Again, I cannot predict what your particular prosecutor will do.

It's remotely possible that the prosecutor will dismiss the charges. Unlikely but remotely possible.

What's more likely is that the prosecutor will offer your husband the opportunity of a probation-only sentence (no jail) and maybe some counseling classes. He will know more once the public defender has met with the prosecutor. But first, your husband has to give the public defender the chance to review the police reports and meet with the prosecutor to get a good lay of the land.

I hope this helps to clarify things.
Expert:  JB Umphrey replied 2 years ago.
Please let me know if there's anything else I can assist with. Thank you.
Customer: replied 2 years ago.
Wife again. Let's make this even clearer. If your services were retained by us to defend our case:

1. What would be your first step?

2. What would be the most prudent actions to stop this in it's tracks?

3. We wish the case to be espunged.

4. In order for the case to be espunged, WHAT WOULD YOU DO to represent us in the best possible manner in order to obtain the best outcome.

5. Have you tried a case or cases similar to ours? If yes, what did you suggest your client pleed? Were you successful in your representation?

So far, the information you have submitted sounds good but does not answer our questions. If you are unable to provide the guidance we requested and paid for in good faith, please, forward this inquiry to another attorney who is experienced and voiced in such matters.
Expert:  JB Umphrey replied 2 years ago.
No problem.
1. What would be your first step? Obtain a copy of the police reports and review any statements and video.
2. What would be the most prudent actions to stop this in it's tracks? There are none. The case has been filed. Now it has to be played out either through plea negotiations or trial.

3. We wish the case to be espunged. In Georgia, cases that end in dispositions of Guilty, Not Guilty, Nolo Contendre, and First Offender Act are not eligible for expungement. However, the prosecutor may offer a plea under the First Offender Act. Per Georgia law (O.C.G.A. § 42-8-60), “upon a verdict or plea of guilty or nolo contendere, but before an adjudication of guilt, the court may, in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, defer further proceeding and place the defendant on probation as a first offender. If the terms of the first offender sentence are successfully completed, and the probationer discharged, those charges would be sealed on the Georgia Crime Information Center database when the discharge is applied to the GCIC criminal history; however, such information may be available through other sources, including court docket books, criminal justice agency websites, or through “third party” vendors.

4. In order for the case to be espunged, WHAT WOULD YOU DO to represent us in the best possible manner in order to obtain the best outcome. Only a dismissal can be expunged. If that's the goal, one has to plead not guilty, go to trial, and seek a not guilty verdict from a jury. There's a slight chance the prosecutor will dismiss the charges but, in practice, that's highly unlikely. Otherwise, a plea agreement under the First Offender Act should be explored with the prosecutor and judge

5. Have you tried a case or cases similar to ours? If yes, what did you suggest your client pleed? Were you successful in your representation? Yes, I've handled such bases. Both as a prosecutor and defense attorney. I never make any recommendations about options until I've read the police reports and spoken with the attorney on the other side. Cases are handled on an individual basis and will depend on their facts and the personalities of other (e.g., the other attorney, the judicial philosophy of the judge, etc.). I know that you want a crystal ball. I understand why this matter is so upsetting for the both of you. Your husband's will be in a better position to explain the options that are actually available after s/he's had a chance to review the police reports and meet with the prosecutor.

Please let me know if there's anything else I can assist with. Thank you.

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