A common question when someone is arrested for retail fraud is: “Will I be placed on probation?”. Another common question is: “Can I avoid Jail?”. When a person is arrested there is often a fear of the unknown. “What will happen to me?”. “What will the Judge do?”. Although probation is common for shoplifting, it is not guaranteed.
All retail fraud/shoplifting cases are criminal cases, which means that the Judge always has the discretion to impose jail as a condition of bond or sentence. There are a lot of different factors that can influence what will happen:
- The Defendant’s prior history. Obviously, the worse a person’s prior record the more likely incarceration becomes an option. This is especially true when the prior history also involves shoplifting. When the charge is a Felony (1st Degree Retail Fraud or Organized Retail Fraud), the Defendant’s prior record is a factor in the computation of sentencing guidelines. In Michigan, sentence guidelines are an advisory sentence range for a Judge to consider which is determined by the scoring of prior record and offense related variables. Although sentencing guidelines are advisory, they are influential in terms of how a Judge determines the sentence.
- The facts of the case. Some cases of retail fraud are more egregious than others. What may make a case more egregious? The amount of the property. Whether or not the Defendant allegedly possessed tools or other devices related to retail fraud (such as wire cutters, booster pants, a bag lined with tinfoil or another substance to attempt to evade a theft detection device, etc.). Whether or not a police officer, loss prevention officer, employee, or customer was injured attempting to apprehend the Defendant. Whether or not persons were placed in danger when the Defendant fled (for example, drove at a high rate of speed from the store parking lot). Was the Defendant cooperative, or did he or she resist being detained or arrested.
- The reason for the offense. Was it greed? Was it impulse? Was retail fraud a business that the Defendant was engaged in (stealing items to resell them online)? Was it to support a drug or alcohol addiction? Was it due to kleptomania or some form of mental illness?
- The Judge who is assigned to the case. Some Judges are more conservative than others. Some Judges may think that jail time is the necessary deterrent. Some Judges may think that a person with a drug and/or alcohol problem should be in jail to dry out and/or get help through an in custody program. Some Judges may think that jail is necessary to protect merchants and society (especially when the Defendant is a repeat offender).
- How did the Defendant present himself or herself before the Court? If convicted, a Defendant always has the right to speak in regard to sentencing. It is not uncommon for a Defendant to say something that effects the Judge negatively. An experienced lawyer will help his client to say the right things, because he or she will have knowledge of the Judge’s tendencies.
- How the case was resolved. Although a Judge is not supposed to punish a Defendant from exercising his or her constitutional right to trial, it can play a role in the sentence if the Defendant loses. A Judge may have a belief that the fact that the Defendant went to trial and lost (especially in a case that did not have a good defense), shows that he or she is not amenable to rehabilitation because he or she did not acknowledge their guilt.
- The quality of legal representation that the Defendant received. Effective representation often leads to effective results. Judges often correctly state that “if it wasn’t for your lawyer, you would be in jail right now”. Why? An effective lawyer will have the right combination of litigation and negotiation skills to persuade the court. Sometimes a plea bargain and/or sentence agreement will make all the difference. An effective lawyer properly advising his or her client on what to say and do is often a factor in the result received.
It is important to remember that probation is not often easy. Probation effects a person’s freedom (through jail, loss of ability to travel, requirements to complete classes or programs, etc.). Probation have financial consequences (fines, costs, restitution, probation expenses, crime victim’s rights fee, potential loss of employment, potential loss of employment/career opportunities, etc.). A Judge can make probation so intolerable that, to some, jail is preferred. Whenever a person is facing a retail fraud allegation he or she should have a experienced and effective lawyer, even if he or she is convinced that he or she will not go to jail. Why?
- The experienced and effective lawyer may convince the Court to be more lenient in terms of the sentence imposed.
- The experienced and effective lawyer may convince the prosecution to reach a plea bargain or sentence bargain. This is often critical for persons with careers, career ambitions, or for persons that are not citizens of the United States.
- The experienced and effective lawyer may be able to help the Defendant to avoid having a theft conviction. This could be through a plea bargain, a diversion program, or a status in the law that may be available to keep the court record sealed.
- The experienced and effective lawyer can give guidance and a strategy to the Defendant to help him/her obtain the best possible result.
- The experienced and effective lawyer may be able to convince the Court to allow travel while the case is pending, or during probation. This is especially important if travel is required for the Defendant’s job, or if the Defendant has an upcoming vacation planned.
- The experienced and effective lawyer may be able to schedule the case in a way that causes the least inconvenience to the Defendant. Missed work and/or missed school can prove to be a disaster.
- The experienced and effective lawyer will be able to properly defend the case by strong advocacy and litigation.
- The experienced and effective lawyer may be able to secure a reasonable bond and reasonable bond conditions.
Don’t make the mistake by going it alone, or choosing a “cheap” alternative such as a court appointed lawyer. You matter. Your future matters. Your family matters. Invest in yourself by investing in the right lawyer. Criminal cases and criminal convictions can have life altering consequences. Choose to help yourself by immediately contacting attorney Daniel Hilf at (248)792-2590.