I was charged with a misdemeanor that is considered a "wobbler" in California. The DA told me, "Plead guilty or I'll refile the case as a felony". I refused, he asked the court to dismiss the misdemeanor and he did refile as a felony. This seems to me to be a violation of my 5th amendment constitutional protection which states that I cannot be compelled to be a witness against myself. Threatening to and following through on filing more serious charges than were seen fit to file in the first place exclusively on the bases of my exercising my right to trial seems to me a frightening use of prosocutorial power and the opposite of a plea bargain. Is this legal?? After a year of continuances my attorney still does not have an answer for me on this question.

A plea bargin is just that. What they are trying to avoid is court costs associated with procecuting you. Since you weren't willing to play the "game" they refiled assuming they have enough evidence to push it through. Were you advised of your rights before the plea bargin began like when you were arrested?

Were you assigned a lawyer before the plea bargin and did you speak to them about it?

There was no plea bargain offered or mentioned. I was charged with a misdemeanor, and told "plead guilty or we'll make it a felony". A plea bargain occurs when one is offered a lesser charge than the one filed in exchange for a guilty plea.

They may have thought of it that way. Since its obvious that they had enough to go even further. It sounds like they made an offer for the guilty plea.

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Originally Posted by calisunfun

... This seems to me to be a violation of my 5th amendment constitutional protection which states that I cannot be compelled to be a witness against myself. ...

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I don't follow you. How does a threat to file it as a felony unless you plead guilty to a misdemeanor tend to compel you to testify against yourself?

They did not force you to testify against yourself, ( and I will assume you did not) Normally it works the other way, they file the felony and agree to lower it if you will plead guilty, but it works the same way.

They may change the charges any time they wish, if it meets the requirements of the new charge. So if the crime meet all of the requirements to statue law of the crime you were charged with, then of course they may change the charges

They may threaten, and change charges if you don't give up someone else in the crime and more.

And they may even lie to you to get you to testify or make a statement.

Hello c:

I agree with you. The Padre is right... They DID have enough to charge you with a felony, but they didn't. The ONLY reason they are now, is because you didn't utter the words they wanted you to in court - NOT because you SHOULD be charged with a felony...

Consequently, I'd fight it. If your lawyer STILL doesn't get the defense, get another lawyer.

excon

So the self-incrimination argument is simply another way of saying that if you don't choose to take the "reverse plea bargain" (or plead guilty), you don't have to.

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Originally Posted by AK lawyer

So the self-incrimination argument is simply another way of saying that if you don't choose to take the "reverse plea bargain" (or plead guilty), you don't have to.

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Hello lawyer:

Well, of course, nobody HAS to accept a plea bargain...

I'm arguing the larger issue. That is prosecutorial POWER. Over the years, the POWER to inflict the sentence HE deems appropriate, has slowly GRAVITATED from the judges chambers to the DA's office. The advent of mandatory sentencing laws exacerbated the move, which I believe to be UN-Constitutional.

Yes, it's a reach... But, I don't see any OTHER argument she can use...

excon

First, please don't use the Comments feature to post follow-up. Use the Answer options instead.

I haven't a clue where you get the idea that your 5th amendment rights were violated. That's not even close. Essentially this WAS a plea bargain. Plead guilty to a misdemeanor (the lower crime) or we will prosecute you for a felony. How is that not a plea bargain?

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Originally Posted by ScottGem

How is that not a plea bargain?

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Hello Scott:

Extortion, for one... Reducing a charge, if one accepts a plea, ISN'T a threat... Going INVERSE is. This is NOT your standard plea bargain. I've NEVER heard of it put that way. I think it's illegal...

excon