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CrimDefense
CrimDefense, CriminalDefenseAtty
Category: Criminal Law
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Experience:  8+ years defending Misdemeanor and Felony cases.
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My wife and I recently got into a argument over a cell phone

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My wife and I recently got into a argument over a cell phone conversation. She reached for it a few times with no success and then I ran downstairs. As I ran down stairs I believe she stated well if you do not give back my cell phone I am going to call the cops. She then comes back downstairs and we continue to argue for a while and then she runs upstairs. After about 10 minutes I give her cell phone back to our son and say give this to your mom and I go upstairs to pack me a night bag to go stay at my sister house. After about 10 minutes the police arrive, and call me back downstairs. I explain the situation while my wife is downstairs; and the officer does a physical exam on the both us in which she finds a little scratch on my arm. The officers asked how did that happen, did she do this. They check her also and did not find anything. I state they could be a possibility given that she was reaching for her back no big deal. Before I know they are putting her in hand cuffs and me too, and we are getting in the car. Before we leave they asked us what belonging would you like to take; and we both take our cell phones. They never did read us our rights or say what we were being charged for. We go to the police station in which I find out that I am charge with Criminal Trespassing and through the help of the desk employees she explains that my wife is charged with Family Battery. I was given the opinion to make bond; but my wife was not and she had to stay the night to see the Pre Judge in the morning. With this I decided not to make bond and to stay in jail with my wife to show support. The next day we are during the pre court the judge grants her bond for $5000 with the restrictions that she cannot come home, or have any contact with me. They deny us a public offender; stating that we make too much money; which is not true because the majority of our money goes to help my sick mother. We do not know what to do, we can not afford a attorney and we have two small girls that need their parents. It simply was a argument that turned into a big deal. We have been married for 11 years, I have no interest in charging my wife for anything and I am sure that she feels the same way. Is there a way that this can be settled without getting attorney? Please help.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  CrimDefense replied 1 year ago.
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good morning. I certainly understand the situation and your concern. Both of the charges are crimes against the State of Georgia, with you each being a victim and the State representing your legal interest. While each of you as the victim, can speak with the prosecution and advise that you do not want the case to proceed against your spouse, it is at their discretion and they have the final say. However, the ability of State to prosecute and proceed to trial, depends entirely on the cooperation of each of you with them. The reason being is that you would need to appear at trial to testify and/or appear and cooperate at depositions. If this does not happen, the prosecutor will have a hard time proving their case beyond a reasonable doubt at trial and likely need to dismiss the charge. The ability to obtain a public defender does depend on your income. Even though the majority of your money goes to help your sick mother, the court still views it as income which can be used to retain counsel to help yourself and your wife, at this time. As such, you either need to retain private counsel or represent yourself through the proceedings, which is not advised. I know you would like to settle this without an attorney but it is something that is up to the prosecutor assigned to the case and if they want to drop it. Once the true facts come out and they see that there was no crime committed, they may change their mind, once you speak with them. If you tell them that your wife never touched you and there was no physical violence, they likely will drop the charge and the same goes for the incident with her phone and what happened.

Please let me know if you have any follow up questions or need any clarification on something which I stated above. Also, remember to rate my service before exiting the site, so I can receive credit for my help. I hope you found it to be Excellent! Only rate my answer when you are 100% satisfied. If you feel the need to click either of the two lower ratings to the left, please stop and reply to me. I want to make sure your experience with the site was as pleasurable as possible and that you are satisfied with the help I provided.
Customer: replied 1 year ago.


Okay I do not understant the following?: "However, the ability of State to prosecute and proceed to trial, depends entirely on the cooperation of each of you with them. The reason being is that you would need to appear at trial to testify and/or appear and cooperate at depositions. If this does not happen, the prosecutor will have a hard time proving their case beyond a reasonable doubt at trial and likely need to dismiss the charge." Does this mean that I we should go to each other's court date or does this mean that we should not appear at each other court date in which by us not apprearing that it would be thrown out. Also when we go to our scheduled court date what do we plea?? Also is their a possibly of maybe doing Mediation. I was told that maybe this could be work out before it goes to court.

Expert:  CrimDefense replied 1 year ago.
In a criminal case, there is no mediation. What will happen, if you can work this out, is that a plea deal will be offered by the prosecutor. It is at your discretion to accept this offer and resolve the case, instead of going to trial. Depending on the offer, it could result in a criminal record, which you want to avoid, so make sure you understand what you are accepting. As far as appearing at trial or a deposition, you would technically need to, if served with a subpoena. If you fail to appear, it would be at the discretion of the State to go after you and look to hold you in contempt. Again, it is at their discretion. Typically, in cases involving couples, when they fail to appear or cooperate, the prosecutor realizes they do not want to take any action against the other and drops the case. At the same time, if she is charged with battery against you and never touched you, there is no harm in appearing and testifying to the same. The prosecutor is not going to want to put a victim on the stand who is going to hurt their case, not help it. The same goes for her and what happened with the phone.
Customer: replied 1 year ago.

 


Thank-You my final question is I understand what she was charge for but what exactly is criminal trespassing. We own the house in which the issue happen, how can this be criminal trespassing; also when I was in front of the pre court judge she said that I was charge with Theft by taken; even my discharge papers say Criminal Trespassing. How can this be if she was given back her phone and the phone never left the permissive/house ? Also what do we plea when the judge ask us. We do not understand pleas.

Expert:  CrimDefense replied 1 year ago.
You are welcome. I have provided the code for criminal trespass below and it has to do with the taking of her phone and depriving her from the use of it. It is possible that the charge was amended by the State, but you need to go by what is on the docket/contained within the court file, to see what they are charging you with, if you are unsure. it all has to do with her not being able to use the phone. As far as when you appear in court, the Judge is likely going to ask you to either enter of plea of not guilty, if you want to fight this or a plea of guilty/no contest, if you just want to resolve this. A plea should be taken if you do not want go to trial, fight this and make the state prove the charge beyond a reasonable doubt. However, based upon what you described above, you could have defenses and/or a chance to beat this, so you may not want to accept any plea.

(a) A person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without consent of that person.

(b) A person commits the offense of criminal trespass when he or she knowingly and without authority:

(1) Enters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person for an unlawful purpose;

(2) Enters upon the land or premises of another person or into any part of any vehicle, railroad car, aircraft, or watercraft of another person after receiving, prior to such entry, notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant that such entry is forbidden; or

(3) Remains upon the land or premises of another person or within the vehicle, railroad car, aircraft, or watercraft of another person after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart.

(c) For the purposes of subsection (b) of this Code section, permission to enter or invitation to enter given by a minor who is or is not present on or in the property of the minor´s parent or guardian is not sufficient to allow lawful entry of another person upon the land, premises, vehicle, railroad car, aircraft, or watercraft owned or rightfully occupied by such minor´s parent or guardian if such parent or guardian has previously given notice that such entry is forbidden or notice to depart.

(d) A person who commits the offense of criminal trespass shall be guilty of a misdemeanor.

(e) A person commits the offense of criminal trespass when he or she intentionally defaces, mutilates, or defiles any grave marker, monument, or memorial to one or more deceased persons who served in the military service of this state, the United States of America or any of the states thereof, or the Confederate States of America or any of the states thereof, or a monument, plaque, marker, or memorial which is dedicated to, honors, or recounts the military service of any past or present military personnel of this state, the United States of America or any of the states thereof, or the Confederate States of America or any of the states thereof if such grave marker, monument, memorial, plaque, or marker is privately owned or located on land which is privately owned.

Here is also the charge for theft by taking:

Under Georgia law, a person commits the offense of theft by taking, also referred to as larceny, when he or she unlawfully takes any property of another with the intention of depriving that person of their property. The manner in which the property is taken or appropriated is irrelevant. Punishments for theft by taking depend largely on the value of the item taken. Where the item is worth less than $500.00, a person is generally charged with a misdemeanor. Where a person is charged with theft by taking of personal property of another worth more than $500.00, they may be charged with a felony.
Customer: replied 1 year ago.

 


So in conclusion if we state not guilty then the state would have to prove that we are guilty in which we could go to trial. Or plea no contest/guilty in which they will give us a plea deal and it is up to us whether or not we take it. However in your opinion you feel that if we state not guilty and it goes to trial. Based upon the information and if she does not show up then it maybe thrown out and if I show up for her court date and state that she did not scratch me then hers could be thrown out.

Expert:  CrimDefense replied 1 year ago.
Yes. Just to clarify, if you wanted to take a plea the State first needs to make an offer and then you can accept it and enter a plea of guilty or no contest. Until you know what they are offering you should not just plea to it
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Category: Criminal Law
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Experience: 8+ years defending Misdemeanor and Felony cases.
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