The Laws

Q: What’s the difference between a felony and a misdemeanor?

A: A misdemeanor is less serious and carries a lighter punishment than a felony. In Ohio, the maximum penalty for a misdemeanor is up to six months in jail and/or a $1,000 fine.

Felonies are more severe.  And depending on the crime, punishment can result in significant periods of imprisonment, or even the death penalty.  Felonies also carry other collateral consequences, which can jeopardize firearm rights, limit employment opportunities, and hinder other freedoms.

 

Q: What’s the difference between federal and state white-collar crimes?

A: The difference between state and federal white-collar crimes is based on whether you have violated a state or federal law. Similar to other types of criminal law, if your crime involves a federal agency then you have committed a federal crime. There are specific federal agencies that are often affected by white collar crimes, such as the IRS, United States Postal Service, Securities and Exchange Commission and United States Treasury. Often conduct results in a violation of both federal and state law.  It is up to the authorities, sometimes with the input of the defense attorney, where the case will be prosecuted.  And, in some circumstances, crimes can be prosecuted on both the federal and state levels.

If you have been convicted of a white-collar crime, at the state or federal level, you could face:

  • Imprisonment
  • Fines
  • Giving back any monies or property you have unlawfully taken
  • Surrender money and/or property
  • Remain on home detention
  • Released under strict supervision

Keep in mind that your lawyer is able to engage in negotiations with federal prosecutors if you have been charged with a federal offense. The federal prosecutor will likely refer to sentencing guidelines and suggest penalties without taking into consideration any extenuating circumstances.

 

Q: What’s the difference between a civil law and a criminal law?

A: Civil laws deal with disputes between individuals, organizations or both. Private parties file civil cases and punishments are generally financial. Examples are divorce proceedings or property disputes.

Yavitch & Palmer deals with criminal laws— crimes and legal punishments of criminal offenses. Victims are innocent until proven guilty and outcomes don’t revolve around money, but freedom and principal. Examples range from assault, to robbery and drug trafficking and much more.

 

Q: How does the expungement process work?

A: Under Ohio law, records are sealed not expunged.  In practical terms, there may not be much difference.  But the nomenclature in Ohio is different than most other states.

Once a record is sealed, it is removed from the purview of the general public.  It can, however, be viewed under limited circumstances.  For instance, certain government employers may consider and/or view the record. And generally any sealed records can be considered for other employment positions involving teaching minors, law enforcement, and specific licensed positions (such as attorneys).

Aside from these exceptions, Ohio law permits a person to treat a sealed record “as if it never happened.”  And, under some circumstances, it can be a crime for someone to consider a sealed record.

Eligibility is the first question in the sealing process.  Not all crimes are eligible to be sealed, depending on classification by degree and the nature of the offense.  Ohio law has recently changed for the better.  And certain convictions can now be sealed even for multiple offenders.  So even if a particular case was not eligible in the past, it may be worth a second look under the new law.

Timing is the next issue.  For misdemeanors, eligible convictions can be sealed one year from the date of discharge from the court sentence.  This means that a record cannot be sealed until one year after the jail sentence is served, the fine is paid, and probation is completed.   For felonies, the wait is three years from the date of final discharge.  If the original charge, complaint, or indictment was dismissed or there was a not guilty verdict, there is no waiting period.  An application can be filed immediately.

Once it is determined that a conviction is eligible and the appropriate time period has elapsed, the offender may file the appropriate paperwork in the court that had original jurisdiction over the case.  Most courts charge a filing fee, sometimes even on dismissed cases.

Once filed, courts will typically conduct a background check to verify eligibility.  The prosecutor will also have an opportunity to respond in writing.

Once the process is complete, the court will likely schedule the case for a hearing. The standard requires the court to balance the defendant’s interest in having the record sealed against the government’s interest in maintaining it.  Sometimes there is a full blown hearing with witnesses and arguments.  Other times the matter is resolved by paperwork only.

At some point after the hearing, the court will issue an order either granting or denying the application.  If the records are sealed, the court’s entry should be sent to various on-line reporting agencies.  It is impossible to catch all references to the records, but we can typically eliminate the most common reporting services.  And, in time, we can quash other reports of the record if they emerge.

 

Q: Can I appeal my conviction?

A: When a jury or judge renders a decision in a criminal trial, the defendant has the right to appeal the decision. Many criminal cases that result in litigation go on to the appellate process.

On appeal, a higher court reviews the lower court’s judgment. Unlike other forms of litigation, in appellate law there is no discovery. The appellate record is limited to the facts presented during the original trial. In Ohio, appeals are presented to a three-judge appellate panel. Because appeals are decided almost entirely on the written briefs, a compelling appellate brief and a powerful oral argument are the vital tools of a successful legal advocate’s appeal.