Legal Question in Criminal Law in Tennessee

Hello,please help me. My daughter was arrested today charged with violation of probation for a previous misdemeanor charge under $500. We have hired a private attorney and paid hi a retainer, and he did not show up to the court date today. My daughter was unable to pay the restitution owed is why she was charged with a violation. Also, each time she was arrested she was not read her Miranda rights. I am confused as to why the judge did not issue a continuance since my attorney did not show up. Her bail was set at $11000, and this is the first time she has ever been in trouble. Please advise on what I should do if anything. Thank you.

Asked on 9/26/13, 5:15 pm

1 Answer from Attorneys

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Your question contains a mix and match of incredible events:

Are you really saying that your daughter was arrested today on a violation of probation warrant, that today you hired a lawyer, later today she appeared before the judge (for what would be "first appearance," not arraignment) and the lawyer failed to appear on the very same day you hired him? Well, I guess it could happen.

But why would the judge order a continuance of the first appearance? The sole function of the first appearance is for the judge to:

(1) advise the defendant of the warrant: "Here's what the probation officer said you did or failed to do,"

(2) then set a hearing date (in effect, the "trial" date) on the merits of the warrant, and

(3) set or review the amount of her bail bond pending her hearing date.

Hearing on the merits of the warrant do not take place at the defendant's first court appearance. Now if the lawyer failed to appear at the hearing on the merits (the "trial" on whether or not she willfully violated her probation) that would be a different and much more serious matter.

There is no requirement that your daughter be read her Miranda rights at any arrest. If they are not read to her and she freely waives those rights, nothing she says can be used against her. I have had many clients arrested, tried, convicted and sentenced who have never been read their Miranda rights. Of course, nothing they said was ever used against them, all cases were proved by other witnesses, videotape, laboratory tests, etc.

Meet with the lawyer you hired -- but also realize that he is not "your" lawyer, he is "her" lawyer -- and make sure he has all the necessary information such as income and expense statements, pay stubs, garinhments, tax returns, and so on. Then, at the hearing on the merits of the warrant, she will be in a position to show the court that her failure to pay was not wilfull. Defendant's can't be violated and sent to jail of they can't pay, but they surely will be violated and jailed if they won't pay.

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9/26/13, 7:31 pm

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