How often does this happen: you have a defendant charged with felony possession of a controlled substance and misdemeanor possession of marijuana. The misdemeanor, of course, has a different court setting than the felony. The defendant wants to plead to the misdemeanor with an unresolved felony pending. What do you do? Common practice is to reset the misdemeanor until the felony is resolved. You can’t go wrong with that strategy. However, are there times when you should resolve the misdemeanor while the felony is still pending? The answer is “maybe,” “hell no,” and “maybe!” Below are some common scenarios most of us have run into that explain this in greater detail.
Scenario #1: A client has a prior felony conviction, but they offer probation on the misdemeanor. The prosecutor is not offering probation on the felony. Should you plead out the misdemeanor? Maybe. If the State has a good case, without suppression issues or material problems, it could be a good strategy for the client to plead out on the misdemeanor and get a good track record on probation. Then, a few months down the road, you can argue to the prosecutor that they have turned their life around and can be successful on probation. This works best if you also have a judge that may give probation to defendants who are not eligible for probation from a jury. A good track record on misdemeanor probation could be a solid argument for felony probation before the judge.
Scenario #2: The defendant has one lawyer on his misdemeanor and a different lawyer on his felony. The misdemeanor lawyer gets an offer from the misdemeanor prosecutor that the defendant wants to take. Should the misdemeanor lawyer advise the Defendant to plead to the misdemeanor without thinking about the felony consequences? Hell no! This is setting everyone up for a fall. The only exception might be if the client and both attorneys are in the loop about the adverse consequences of the plea, and the client understands this but still wishes to plead with everyone telling him not to! Get those admonitions about the dangers of that plea in writing or on the record. But this is clearly a situation in which you should not plead out the misdemeanor with a pending felony still open unless the defendant insists.
Scenario #3: A defendant has a pending misdemeanor with a time served offer. However, the labs are still out on the pending felony, so it can’t be resolved with the misdemeanor. The two offenses didn’t happen simultaneously, so one can’t be used in guilt/ innocence in the felony. The State makes an offer that the Defendant wants to take to get out of jail and stop missing work to come to court. Should the Defendant plead? Maybe. The misdemeanor conviction could be used at punishment for the felony when it goes around. However, a defendant is sometimes good for one charge but not the other. It can be a powerful argument when a defendant admits guilt on one charge at trial but not on the other if the facts and circumstances support it. So, with the proper admonitions, and so the Defendant can make an informed choice, this one is a maybe.
These issues are something we run into all the time in our practice. Most of us just set off the misdemeanor until the felony is resolved, which is usually the best practice. However, there can be thoughtful exceptions to this rule, which can benefit defendants in the long run. The critical term is “thoughtful exceptions!” As always, take care, good luck, and have fun!
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