Criminal Defense Lawyers in Montgomery, Alabama

What to do first after an arrest or an investigator’s call

Ask for a lawyer, then stop talking. Ala. R. Crim. P. 4.4(a)(3) requires a judge to advise you of the right to remain silent and the right to counsel at your initial appearance. Nobody has to tell you that in the back of a patrol car.

Know the forty-eight (48) hour clock. After a warrantless arrest a judge or magistrate must find probable cause in no event later than forty-eight (48) hours. Rule 4.3(a)(1)(iii). If that does not happen, the rule requires release on the minimum scheduled bond, on personal recognizance or on a signature bond, unless the offense is not bailable.

The three courts, and why the court matters as much as the charge

Alabama runs 41 circuit courts, 67 district courts and 270 municipal courts. A case begins in one of the bottom two and sometimes finishes in the top one. Why does the court matter more than the label on the warrant? It decides what the case can become.

Municipal court has jurisdiction of prosecutions for breach of a city’s own ordinances inside its police jurisdiction, and concurrent jurisdiction with the district court over state-law conduct that can be charged as an ordinance violation instead. Ala. Code § 12-14-1.

District court has exclusive original trial jurisdiction of misdemeanors, subject to exceptions that include cities prosecuting in their own courts and charges tied to a felony. § 12-12-32(a). It also holds the preliminary hearing in a felony case.

Circuit court has exclusive original jurisdiction of every felony prosecution in this state. § 12-11-30(2). A felony is tried here or it is not tried.

Here is the part almost nobody is told. A conviction in municipal or district court is not the end of it. Under Rule 30.1(a) a defendant convicted in either may appeal to circuit court for a trial de novo — a complete new trial, not a review of the old one — within fourteen (14) days. Fourteen days. The jury has to be asked for too, in the notice of appeal itself. § 12-12-71.

How a felony case moves in Alabama

It opens with an initial appearance, where the judge states the charges, advises the defendant of counsel and of silence, and sets conditions of release. Rule 4.4(a). The first real look at the State’s case is the preliminary hearing, and it has to be asked for: demanded within thirty (30) days of arrest, held within twenty-one (21) days of the demand. Rule 5.1(a).

The window closes hard. If the grand jury indicts on the same offense before the hearing commences, the entitlement is gone. Rule 5.1(a)(4). It is important to understand what a grand jury is: it sits without the defendant and without defense counsel, and the concurrence of only twelve (12) grand jurors is necessary to return a true bill. § 12-16-204.

Arraignment is the deadline that quietly decides a great many cases. Pre-trial motions under Rule 15.2 must be made at or before arraignment in circuit court, and failing to raise an objection then waives it. Rules 15.3(a), 15.2(c). Discovery is not automatic either: Rule 16.1 turns on a written request, and the prosecutor then has fourteen (14) days to produce the defendant’s statements and the documents material to the defense.

Ultimately, most cases end in a plea. Rule 14.4(a) will not let a court take one casually: outside minor misdemeanor cases the judge must address the defendant personally, in open court and with counsel present, and confirm he understands the charge, the minimum and maximum, and the trial rights he gives up.

Bond, and when an Alabama court may deny it

Rule 7.2(b) publishes a bail schedule, running from $10,000 to $60,000 on a Class A felony down to $1,000 to $10,000 on a Class D. The floor in violation and misdemeanor cases is $300 per offense charged. Ala. Code § 15-13-105.

The schedule is a starting point, it is not the decision. The rule directs courts to exercise discretion above or below it, and Rule 7.2(a)(3) lists fourteen (14) factors — family ties, character, prior record, residence, employment, who will vouch for the defendant — before the least onerous conditions that will assure appearance. Nearly all of that is evidence somebody has to gather.

Since Aniah’s Law, a defined list of serious felonies is treated differently — murder, first degree kidnapping and first degree robbery among them. A court may deny bail on those charges, but only after a pretrial detention hearing and only if the prosecuting attorney proves by clear and convincing evidence that no conditions will reasonably ensure appearance or protect the community. § 15-13-3(b). The defendant has counsel at that hearing, and the right to testify, present evidence and cross-examine.

What the class of the charge is actually worth

Alabama sets punishment by class rather than by crime. Under Ala. Code § 13A-5-6 a Class A felony carries life, or ten (10) to 99 years; a Class B, two (2) to twenty (20) years; a Class C, one (1) year and a day to ten (10) years; a Class D, one (1) year and a day to five (5). Misdemeanors under § 13A-5-7 cap at one (1) year, six (6) months and three (3) months for Classes A, B and C.

While the class sets the range, a prior record can move the range itself. Under the Habitual Felony Offender Act, § 13A-5-9, a defendant with one prior Class A, B or C felony who is convicted of a new Class C must be punished as though it were a Class B. With two priors, as a Class A.

The State has a clock too: generally five (5) years to charge a felony, § 15-3-1, and twelve (12) months for a misdemeanor, § 15-3-2. But § 15-3-5 removes any limitation at all for a capital offense, for any felony involving violence, serious physical injury or death, and for arson, forgery, counterfeiting and drug trafficking.

Youthful offender status, and clearing a record afterward

Youthful offender status is the most consequential thing a young defendant here has usually never heard of. Ala. Code § 15-19-1 lets the Court investigate whether a person charged with a crime committed in his or her minority should be tried as a youthful offender instead. It is discretionary, and it requires the defendant’s consent — including consent to trial without a jury. What the trade buys is in § 15-19-7: it is not deemed a conviction, and the records are not open to public inspection.

Expungement is described wrong more often than anything else on this page. Under § 15-27-1 a misdemeanor or violation dismissed with prejudice, no-billed, or ending in a not-guilty finding may be petitioned on once ninety (90) days have passed. A misdemeanor conviction is harder: probation, fines, costs and restitution must be complete, three (3) years must have passed from the date of conviction, and it may not be a violent offense, a sex offense, an offense of moral turpitude or a serious traffic offense.

A felony conviction cannot be expunged here at all until it has been pardoned. § 15-27-2(c). Even then it is not erasure — the record still reaches prosecuting authorities, utilities and the banking and insurance systems.

What appointed counsel covers, and what it does not

Under Rule 6.1(a) a defendant is entitled to counsel in any criminal proceeding held under the Rules and, if indigent, to an appointed attorney wherever representation is constitutionally required — indigent meaning unable to pay for your own defense, shown by a sworn Affidavit of Substantial Hardship. Rule 6.3. That reaches further than most people expect and stops sooner than they hope: Rule 6.2(b) carries counsel through the trial court and the notice of appeal, but on a Rule 32 petition counsel is appointed only if the court does not summarily dismiss the petition and it further appears counsel is necessary to protect the petitioners rights. Rule 32.7(c).

Criminal cases in Montgomery specifically

Montgomery County sits in the Fifteenth Judicial Circuit, one of Alabama’s 41. District and circuit court both sit at the Phelps-Price Justice Center, 251 South Lawrence Street. A charge written by City of Montgomery police on a city ordinance starts in municipal court and, on appeal, moves to that same building.

Two neighboring systems are close enough to confuse. A traffic charge follows its own track; see traffic tickets. A federal indictment is a separate set of rules and deadlines; see federal court.

Frequently asked questions

What is the difference between municipal, district and circuit court in Alabama?

Municipal court hears breaches of a city’s ordinances. § 12-14-1. District court tries misdemeanors and holds felony preliminary hearings. § 12-12-32. Circuit court has exclusive original jurisdiction of all felonies. § 12-11-30(2).

How long do I have to appeal a municipal or district court conviction?

Fourteen (14) days from the judgment or the denial of a timely post-judgment motion. Ala. R. Crim. P. 30.1(a). The appeal goes to circuit court for a trial de novo — a complete new trial.

What is a preliminary hearing, and how do I get one?

A district court hearing at which the State must show probable cause. A defendant charged by complaint with a felony may demand one within thirty (30) days of arrest, and it must commence within twenty-one (21) days of the demand. Rule 5.1(a).

Can a court in Alabama deny bail?

For most charges release on bond is the norm. Under Aniah’s Law bail may be denied on a defined list of serious felonies, but only after a pretrial detention hearing at which the prosecuting attorney carries a clear-and-convincing burden. Ala. Code § 15-13-3(b).

What is youthful offender status?

A discretionary determination under Ala. Code § 15-19-1 that a person charged with a crime committed in his or her minority be tried as a youthful offender. It requires the defendant’s consent, and under § 15-19-7 it is not deemed a conviction.

Can a criminal conviction be expunged in Alabama?

Sometimes. A misdemeanor conviction may be petitioned on three (3) years after the date of conviction, once probation, fines, costs and restitution are complete, and only if it is not a violent offense, a sex offense, an offense of moral turpitude or a serious traffic offense. § 15-27-1(b). A felony must be pardoned first. § 15-27-2(c).

Does the court appoint a lawyer, and does that lawyer handle the appeal?

If you are indigent, counsel is appointed wherever representation is constitutionally required. Rule 6.1(a). Appointed counsel continues through the notice of appeal, Rule 6.2(b), and counsel is provided for the appeal itself. Ala. Code § 15-12-22.

What does it cost to talk to a lawyer about a criminal charge?

Nothing. The first consultation is free and confidential. Criminal defense is not handled on a contingency fee the way an injury case is, so the fee depends on the charge and the stage of the case.

Talk to a Montgomery criminal defense lawyer

Barfoot & Schoettker is a small Montgomery firm. Our lawyers have tried criminal cases in municipal, state and federal court in central Alabama.

If you have been arrested, charged, or contacted by an investigator, contact us for a free and confidential consultation at (334) 834-3444, or submit a free case evaluation form. The first motions come due at or before arraignment, which arrives sooner than most people expect.