Criminal

What are my rights if I am accused of a crime?

• You have a right to a trial by jury
• The right to have the assistance of a lawyer, if you cannot afford one; ask for one to be appointed to you
• The right to compel the attendance of witnesses on your behalf
• The right to confront and cross-examine any witnesses who testifies against you at trial
• The right to remain silent (our firm suggests you assert this right immediately)
• The right to require the State of Florida to prove your guilt beyond a reasonable doubt
• The right to appeal all matters relating to the judgment in your case, including the issue of guilt or innocence

What is required to be arrested in the State of Florida?

There must be what is called “probable cause.” There must be a reasonable belief that a crime was committed and the person to be arrested committed the crime.

How can I be arrested?

There are two ways to be arrested in Florida. First, you can be physically arrested and transported to a local jail by law enforcement. Secondly, the law enforcement officer on scene will have you sign an agreement to appear. A notice to appear can serve as the charging document in Florida and a court date will automatically be set. For instance, if you are arrested for a low-level misdemeanor or Driving Under the Influence; the citation in most circumstances will act as the charging instrument. If you have been arrested for a DUI, contact an attorney immediately so that your attorney can fight the Driver License suspension or attempt to get you a business purpose operator’s license.

What important constitutional rights apply when I have been physically arrested or issued a notice to appear?

Once placed under arrest, two important constitutional rights apply: the right to remain silent and the right to have an attorney. After an arrest, the defendant is not required to say anything else to police or investigators, until an attorney is present. The accused must be given the opportunity to contact an attorney.

What is First Appearance?

Once arrested, the defendant will appear before a judge within 24 hours of arrest. The judge will then advise the defendant of the charge(s) for which he or she has been arrested. The judge will also advise the defendant that he or she has the right to counsel for that hearing. The judge will then decide if the police had a sufficient legal basis for the arrest (make a probable cause determination). It is important to retain an attorney as quickly as possible so that the attorney can attempt to quickly attack the sufficiency of the probable cause statement as a way to get the client released or bond lowered.

What does it mean to bail out or to post a bond in the State of Florida?

The purpose of bail is to insure the defendant’s presence at scheduled court appearances. In setting bail, the judge should be informed of how long the defendant has lived in the area, whether he or she has family living in the area, whether he or she is working, whether the defendant has been allowed out on bail before and appeared in court when required, and whether the defendant has a criminal record. Our firm will provide you sample character reference or mitigation letters to give to friends and family. We will direct you to get at least 5 to 10 character reference letters so that we can provide them to the Court.

What if I cannot afford the bond and I cannot bail out?

In the State of Florida, your attorney can file a motion to modify or motion to reduce bail. However, there is not a right to multiple bond hearings unless there are significant changes in circumstances. Our firm recommends getting the character reference letters, proof of employment, a list of witnesses and provide them to your attorney as soon as possible.

What does it mean when the Judge releases you on ROR or release on own recognizance?

If the court finds that the charge is not serious or substantial, or that the defendant will appear in court when required, the judge has the option of releasing the defendant without posting bail.

What is my first Court Date?

Arraignment. After formal charges are actually filed, an arraignment will be scheduled. The arraignment is not a trial and not a time when evidence can be presented. The purpose of an arraignment is for the defendant to be informed of the charges against him or her, and for the defendant to enter a plea. A retained attorney may enter a plea of not guilty on the defendant’s behalf and waive his or her appearance. See Fla. R. Crim. P. 3.160.

What happens at Arraignment?

Your Attorney will enter a not guilty plea, request a copy of discovery, the Judge will then schedule pre-trial, status conference and trial dates. Some Judges will schedule the matter for trial starting at arraignment so the case tracks on a calendar and so that your attorneys will work according to the trial schedule.

What is Discovery?

Florida is an open discovery state, i.e. both the State and the defense have to make full and complete disclosure of witnesses and evidence intended to be used at trial. If you have names of witnesses, give them to your attorney as soon as you can. If you have been arrested, gather the list of witness names, addresses and phone numbers as soon as possible after the alleged crime. Provide the witness list to your attorney as soon as possible. Our firm has the ability to hire investigators and speak to all of your list of witnesses. Many times, local law enforcement does not speak to ALL of the witnesses. We can ensure that the evidence is preserved for trial. A person can elect not to participate in Discovery but our firm suggests going over all of the options before not participating in Discovery.

What type of Motions can be filed in a criminal case?

This list does not provide a complete list of defense motions but this list is a list of the more common motions that defense attorneys file:

• Motion to Dismiss: If there are no material facts that are in evidence, and those facts do not constitute a crime, the defendant may file a motion to dismiss the charges. Fla. R. Crim. P. 3.190(c).
• Motion to Suppress Physical Evidence: The fruits of unreasonable searches and seizures, whether from encounters on the streets or search warrants, can be subject to suppression. Fla. R. Crim. P. 3.190(g) sets forth the very specific requirements of a motion to suppress, which must be followed, or the motion will be stricken as insufficient.
• Motion to Suppress Confessions: Illegally obtained admissions or confessions may be attacked by a motion filed pursuant to Fla. R. Crim. P. 3.190(h). This subsection is also specific as to its threshold requirements.
• Motion to Suppress the Photo Array or Lineup: Illegally obtained identifications may be attacked as well.

What if I am alleged to have committed a non-violent crime and I am a first-time offender?

In some instances our attorneys can negotiate a plea to what is known as “Pre-trial Diversion.” Pretrial Diversion is a diversionary program run by the State Attorney’s Office and is usually reserved for first time, nonviolent offenders. The diversion program is similar to probation, in that once accepted into the program, the defendant must report once a month to a supervising officer, undergo random drug testing, complete community service hours, and refrain from being involved in any criminal activity. The charges will be dropped upon successful completion of Pretrial Diversion.

How will my case end?

A criminal case will end in a number of ways. For instance, you may elect to go to trial. If you go to trial and get a not guilty, you win. If you go to trial, a Judge or Jury may find you guilty. If you are found guilty at trial, the Judge will then have a right to sentence you. The State of Florida may elect to make a plea offer. A plea offer is an agreement between the State and the Defendant to complete certain conditions. A plea offer may consist of probation with certain conditions such as no alcohol or drug use. A plea offer may consist of jail time followed by probation. A plea offer may consist of only prison or prison followed by probation. Each plea offer is different. The State of Florida has the discretion to make a plea offer or not make a plea offer. Contrary to popular belief, the State of Florida is NOT required to make you a plea offer in a criminal case. A plea offer may have conditions of probation that require drug testing, community service, anger management classes, drug classes, an ankle monitor or community control.

What happens if I go to trial?

If you elect to proceed to a trial. You have a right to a Judge trial or a Jury trial. The accused or the Defendant has a right to choose as to whether they want a Judge or Jury trial. A jury will determine your guilt or innocence. A Judge will determine guilt or innocence.

What does the Judge do in trial?

A trial Judge is accorded considerable authority and discretion in regulating trial proceedings in order to maintain proper decorum, orderly presentation of evidence, and completion of the trial within a reasonable period of time, but this authority and discretion may not be exercised to unreasonably deprive the parties of their constitutional, statutory, or procedural rights.

What has the Burden of Proof…The State of Florida or the Defendant?

The due process clause of the fourteenth amendment places upon the prosecution the burden of producing evidence of a defendant’s guilt of a crime, and it permits a conviction only when the trial of fact finds that each element of the crime charged has been established beyond and to the exclusion of a reasonable doubt. The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the information through each state of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt. To overcome the defendant’s presumption of innocence, the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime. The defendant is not required to present evidence or prove anything.

Does the Defendant have to testify?

A defendant has a constitutional right to testify if he or she wishes to do so. The right which arises from the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause of the Sixth Amendment.

What is the maximum amount of time that I could go to prison?

In Florida, individuals are sentenced pursuant to Florida’s criminal punishment code. Under the CPC, each felony is scored a specific amount of points. The higher the level a felony is designated, the more points that will appear on the CPC scoresheet.

• Third Degree Felony: A third degree felony is punishable by up to five years in prison, five years probation, and a $5,000 fine.
• Second Degree Felony: A second-degree felony is punishable by up to fifteen years in prison, fifteen years probation, and a $10,000 fine.
• First Degree Felony: A first-degree felony is punishable by up to thirty years in prison, thirty years probation, and a $10,000 fine.
• Life Felony: A life felony is punishable by life in prison without the possibility of parole, or probation for life, and a $15,000 fine.
• Capital Felony: A capital felony is punishable by death or life in prison without the possibility of parole.

What happens if I violate my probation?

You have a right to a hearing on a violation of probation. The State of Florida only has to prove one of the alleged violations for you to face up to your maximum sentence on probation. The State has the burden of proving the alleged violation of probation by the greater weight of the evidence standard or the consciousness of the Court. Please be advised that this is a very low standard. If you are arrested for a violation of probation, you do NOT have a right to a bond. The Court or the presiding trial Judge will decide if you will be allowed out on a bond for a violation of probation.

What if this is my first violation of probation?

Under Florida Statute 948.06(f)(1), the Court shall modify or continue a probationary term upon finding a probationer in violation when any of the following applies:

• The term of supervision is probation.
• The probationer does not qualify as a violent felony offender of special concern, as defined in paragraph (8)(b).
• The violation is a low-risk technical violation, as defined in paragraph (9)(b).
• The court has not previously found the probationer in violation of his or her probation pursuant to a filed violation of probation affidavit during the current term of supervision. A probationer who has successfully completed sanctions through the alternative sanctioning program is eligible for mandatory modification or continuant of his or her probation.

What is the first thing that I need to know if I was arrested for DUI and I have a criminal case pending?

If you were arrested for a DUI in the State of Florida, the officer should have provided you with a DUI citation and an arrest report. If you did not receive a citation and arrest report, please contact your arresting agency to receive a copy. If you are a Florida licensed driver you can operate a motor vehicle for 10 days following the DUI arrest. On the 11th day after you are arrested, the Department of Highway and Safety Motor Vehicles will suspend your Florida drivers license. You should contact an attorney within the first ten days after receiving a DUI so that your attorney can attempt to fight the suspension or to request a business purpose license on your behalf. The suspension length and terms depend on whether you blew or if you refused to blow. Another factor on the length of the driver license suspension will be how many DUI arrests you have had. It is very important that you contact an attorney to fight your Florida driver license suspension within 10 days of your arrest.

What happens if I am convicted of a 1st time DUI and blew under a .15?

The Court must impose court costs, cost of prosecution, a term of probation up to 12 months, a fine between $500 and $1,000, a minimum of 50 hours of community service, random drug & alcohol testing, level 1 DUI school, 10 day vehicle impound, minimum 6 months driver license suspension, ignition interlock up to 6 months, and maximum imprisonment of 6 months. The court is prohibited from suspending, deferring, or withholding adjudication of guilt or any of the mandatory sentences.

What happens if I am convicted of a 1st time DUI and blew over a .15?

The Court must impose court costs, cost of prosecution, all persons convicted are placed on monthly reporting probation not to exceed one year, at a minimum 50 hours of community service, imprisonment up to six months, 1 year driver license, must complete a level 1 DUI school, and 10 day vehicle impound. If the blood/alcohol level is .15 or over or if there is a minor in the car; mandatory 6 months. Court is prohibited from suspending, deferring, or withholding adjudication of guilt or any of the mandatory sentences.

What happens if I am convicted of a 1st time DUI and I refused to blow?

The Court must impose court costs, cost of prosecution, all persons convicted are placed on monthly reporting probation not to exceed one year, at a minimum 50 hours of community service, imprisonment up to 6 months, 1 year DL suspension for a 1st refusal, must complete a level 1 DUI school, ten day vehicle impoundment, and ignition interlock up to 6 months at the discretion of the court.

What if this is my 2nd DUI conviction?

The court must place a fine not less than $1,000, or more than $2,000 plus all mandatory fees and court costs. With Blood and Breath Alcohol level of .15 or higher or if accompanied in the vehicle by a person under the age of 18 years old. Not less than $2,000, or more than $4,000, plus all the mandatory fees and court costs. The court would impose at a minimum of 50 community service hours. All persons convicted of DUI are placed on monthly reporting probation, not to exceed one year. If you are convicted of a second DUI, you face not more than 9 months imprisonment. With a blood or breath alcohol level of .15 or higher or if accompanied in the vehicle by a person under the age of 18 years: not more than twelve months. A second conviction for an offense that occurs within five years; mandatory imprisonment of not less than 10 days. For a second conviction within five years or a prior conviction there is a minimum of a five years driver license revocation. If your previous conviction was more than 5 years from the date of arrest, there is a minimum of 6 months driver license suspension up to a maximum of one year. All persons convicted of second DUI must take a level 2 DUI school. All persons convicted for a second DUI within 5 years shall have a 30 day vehicle impound. If the second DUI was outside of 5 years, there is a mandatory 10 day vehicle impound. A second conviction requires an ignition interlock not less than one year; if blood/breath alcohol level is over .15 or if a minor is in the vehicle, not less than two years. The court shall adjudicate guilty.

For a Third DUI: Please contact an attorney immediately.