The Legal Process
What to Expect if You are Arrested
The criminal process can be difficult and confusing. But it's important to know your legal rights. The best way to be informed is to hire a Florida Criminal Defense Attorney in your area as soon as possible. A criminal defense attorney will understand the law as it relates to the crime you've been charged with, and will be able to help you in making informed decisions as your case moves through the process. Call us now at (800) 459-2500 to speak with an attorney.
The Progression of a Criminal Case
Arrest
First Appearance / Bond Hearing
Pre-Trial Release/Pre-Trial Detention
Filing Formal Charges
Arraignment
Pre-Trial Conference
Trial
Sentencing
Appeals
The Legal Process
The Stop
You may be stopped for questioning by the police. A stop is not the same as an arrest because, although you may be detained, you aren't moved to a different location. During a stop the police officer may ask you questions, but you have the right to refuse to answer.
Search Warrants
A search warrant authorizes police to conduct a search of a specific, place such as your residence. In order for a warrant to be issued by a judge, "probable cause" is necessary.
Probable cause to search means that:
It is more likely than not that the specific items to be searched for are connected with criminal activities
Those items will be found in the place to be searched
Warrantless Searches
The general rule is that warrants are required for searches. But search warrants are not required for the following:
Searches incident to arrest: Police officers are permitted to search your body and/or clothing for weapons or other contraband when making a valid arrest.
Automobile searches: If you're arrested in a vehicle, the police may search the inside of the vehicle. To perform a complete search of the vehicle (such as in locked glove compartments, for example), probable cause is necessary.
Exigent circumstances: Searches may be conducted if there are "exigent circumstances" which demand immediate action, such as to avoid the destruction of evidence.
Plain view: Police do not need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view.
Consent: If you consent to a search of your body, your vehicle, or your home, police are not required to have a warrant. You aren't required to consent to any police searches.
When do the Police Need a Search Warrant?
The Fourth Amendment to the Constitution of the United States guards against unreasonable government searches and seizures of peoples' "persons, houses, papers and effects." Generally, if the police want to enter and search a person's home, business, or vehicle, the police will not be allowed to do so without that person's consent or without first obtaining a search warrant.
All search warrants must be supported by a showing of probable cause that an offense has been or is being committed, and are limited in scope to allow for the search and seizure of evidence of a crime. Courts enforce the protections of the Fourth Amendment by applying the exclusionary rule. The exclusionary rule provides that if the police violate a person's Fourth Amendment rights, the prosecution will not be allowed to use the evidence that was gathered in violation of those rights in that person's criminal trial.
If a person believes his or her Fourth Amendment rights were violated, that person must affirmatively raise that issue during the defense of their case in court. If this issue is not raised in the trial court, and later the person is convicted of the crime, this issue is deemed waived and may not be raised on appeal.
The specific method in which a criminal defense attorney will challenge an illegal search and seizure is by filing a "Motion to Suppress Evidence." The court then will hold a pretrial hearing to determine whether the search and seizure was legal. If the court finds that either the search or seizure was illegal, the State will be barred from using the evidence that was seized.
When Can a Person be Arrested?
A police officer is allowed to arrest a person if the officer has grounds to reasonably believe the person is committing or has committed a crime. If the crime occurred in the past, usually the police officer is required to obtain a warrant for that person's arrest. Police obtain arrest warrants after they have investigated a case and developed "probable cause" to show that an offense has been committed.
Once the case has been investigated, the police officer then appears before a judge, and the judge questions the officer under oath about his investigation. If it appears to the judge that an offense has been committed, the judge will issue a warrant for the suspect's arrest. The court also will set a bond upon the warrant at that time. The bond specifies the amount of money a person will be required to post, once arrested, in order to secure his or her pretrial release.
Arrest
After a police officer has placed a person under arrest, the officer transports him to a jail facility for booking. After processing, the person usually can post the standard bond amount and be released. However, if the individual cannot pay the required money, or was arrested for a domestic violence charge, a violation of probation, or a "non-bondable" offense, he will remain in jail and be taken within 24 hours for a first appearance hearing before a judge. A person arrested on a capias will not be allowed to post bond and must appear before a judge.
What is an Indictment?
An indictment is another manner in which a probable cause finding can be made. Indictments are returned by the Grand Jury in felony cases. The prosecution has the discretion to decide which cases will proceed to a preliminary hearing, and which cases will be brought before the Grand Jury to seek indictments.
If the Grand Jury returns an indictment in a case, the indictment has the same function and effect of a probable cause determination made by a judge at a preliminary hearing. The difference between the Grand Jury proceedings and a preliminary hearing is that neither the defendant nor his attorney has a right to be present at the Grand Jury proceedings.
Whether a case goes to preliminary hearing or the Grand Jury, however, a transcript of the testimony given in either situation can be obtained by the defense.
Miranda Rule
Under the Miranda Rule, if you are in police custody you must be informed of specific constitutional rights before interrogation begins. Those rights are as follows:
The right to remain silent
The right to have an attorney present during questioning
The right to have an attorney appointed if you are unable to afford one
Important to note is that Miranda rights do not have to be read until you are taken into custody. That means that you can be questioned by the police before being taken into custody, and anything you say at that point can be used against you later in court. If the police fail to provide a suspect their Miranda rights, any oral or written statements made by the person will be deemed to have been made involuntarily. As a result, the prosecution will not be allowed to use the statements against the person during their criminal trial.
Booking
After you're arrested, the police will bring you to the police station for the booking process. You'll be fingerprinted and asked a series of questions, such as your name and date of birth. You'll also be searched and photographed. Your personal property such as jewelry will be catalogued and stored.
Your Constitutional Rights
Right to a Lawyer
Right to Cross Examine and Confront Witnesses
Right to Testify on One's Own Behalf
Right to Remain Silent
Right to Speedy Trial
Right to Use Courts Subpoena Power to Compel Witnesses to Testify
Right to a Jury Trial (in Most Cases)
Mandatory Detention on Domestic Violence Charges
Domestic violence offenses are primarily assaults or batteries, stalking, and violation of injunctions between husbands and wives, boyfriends and girlfriends, people who live together, or people who have a child together. Laws applying only to domestic violence offenses require the defendant to remain in jail until the first appearance hearing. The defendant will not be allowed to post bond until after the hearing.
First Appearance and Bond Hearing
The purpose of the first appearance and bond hearing is for the judge to:
Advise the defendant of the charge(s);
Determine if the police had probable cause to make the arrest;
Determine whether the defendant can pay for an attorney, and, if he cannot, appoint the Public Defender; and,
Set conditions of pre-trial release from jail, if applicable.
If a person has been arrested for a serious offense, or has been taken into custody on an arrest warrant and is unable to post bond at the police station, the person is delivered to the county jail and brought before a judge. When the person appears in court, the judge will conduct a bond hearing. If no bond has previously been set, the court will hear the factual allegations from the prosecutor, and will consider the seriousness of the charges, the criminal history of the defendant, and other relevant issues.
The court then will set a bond on the case. If a cash bond, or "D-bond," is set, as opposed to a "recognizance bond" or an "I-Bond," the person will be required to post 10% of the bond amount to secure his or her pretrial release. If a bond has previously been set on an arrest warrant, the court may review the bond at that time. An attorney should appear at the defendant's bond hearing if at all possible to advocate for an appropriate bond on the case.
Pre-Trial Release
To determine whether the defendant should be released, the judge may ask about the length of time that person has lived in the area, whether the defendant has a job, has family members living in the area, has a past criminal record or has been released on bond previously and appeared in court as required. The judge may release the defendant on his own recognizance, on monetary bond (either cash or surety bond through a bail bondsman), on monitored release (electronic monitoring device or bracelet), to the custody of a responsible member of the community or to a drug program or mental health facility.
Pre-Trial Detention on "Non-Bondable" Offenses
If a Defendant is arrested for a "non-bondable" offense, such as murder, sexual battery or kidnapping, the law presumes that the defendant will remain in jail pending trial. A person arrested for a "non-bondable" offense has the right to ask for a hearing. The purpose of the hearing is for the judge to determine whether the person should be released pending trial.
Filing of Formal Charges
The State Attorney's Office (State) has sole discretion to file formal criminal charges. The State may file charges even if witnesses do not want to testify against the defendant or do not want to proceed with the case.
For felonies, the charging document most commonly used is called an "information". The prosecutor has 30 days from the date of arrest to file the charging documents. If the charging document is not filed by the twenty-first day, and the defendant is in custody, his defense attorney can ask the judge either to release the defendant on his promise to appear (recognizance) or to hold an adversary preliminary hearing, which requires the State to produce evidence showing probable cause for the charges. If the defendant is not released and the prosecution has not filed a charging document by the 30th day, the court will order that the defendant be released on his own recognizance on the 33rd day, unless the state attorney files charges by that date. The prosecution can request to have the defendant remain incarcerated until the 40th day and the judge will grant the request if good cause is shown. No individual shall remain in custody for more that 40 days if no charging document has been filed.
Another way a person can be charged with a violation of law is by "indictment", a formal document issued by a grand jury usually charging a felony punishable by the death penalty or life imprisonment. It is based upon the facts and circumstances of a case as presented to the grand jury by the prosecution.
Arraignment
Arraignment is a court hearing at which the prosecutor announces whether the State is filing charges. The judge will inform the defendant of the formal charges that have been filed. The judge also advises the defendant as to the maximum possible penalties for those charges. The court then will accept the defendant's initial plea: guilty or not guilty. Almost invariably, a not guilty plea as to each and every charge is entered at the arraignment. Entering a not guilty plea at the arraignment entitles the defendant to the discovery materials, and provides the defendant and his or her attorney more time to investigate the case.
"Discovery" consists of any documents, witness lists, materials, photographs, video or audio tape, reports, and other evidence either side intends to use at trial. At the arraignment, typically the court will order the prosecution to deliver discovery to the defense within 7 days, and will order the defense to turn over its own discovery within 14 days. Usually, both sides also will be required to file any pretrial motions, such as motions to dismiss and motions to suppress, within 21 days.
The court then will set a "pretrial" and a separate "trial" date on the case. Cases that are not resolved on pretrial dates proceed to trial, where a judge or jury determines guilt or innocence.
In some cases, the prosecutor may offer to divert the case from the criminal court process into a pre-trial diversion program. If the client pleads not guilty, the case is scheduled for trial.
Pre-Trial Diversion Programs
A defendant may be eligible for participation in a pre-trial diversion program. The State Attorney's Office has established pre-trial diversion programs as an alternative to formal prosecution. Criteria for these programs are strict, and acceptance may depend upon the approval of the victim, arresting officer, prosecutor and judge. If the client agrees to enter the diversion program, the client will have to give up his right to a speedy trial and may be required to attend classes, perform community service, pay restitution, or meet other conditions. Upon successful completion, the prosecutor dismisses the charges. If the client does not complete the program, the case will be returned to court for trial.
Drug Court
Clients charged with possession of a controlled substance may be eligible for the Drug Court diversion program, which is an intensive drug rehabilitation program.
Defense Case Preparation
If the case is set for trial, the defense attorney will begin preparation by filing motions, investigating allegations and other aspects of the case, as well as deposing and interviewing witnesses.
One of the most significant ways a client can assist in the preparation of his defense is by providing the defense attorney with the names and addresses of witnesses not disclosed by the prosecution, who can testify to circumstances that may prove the client is not guilty or help show that the crime was not as serious as the prosecutor contends. The client must not contact the alleged victim or the witnesses listed by the prosecution or send other people to talk to them because the prosecutor may charge the client with an additional crime of tampering with witnesses. It is the defense attorney's job to speak to the witnesses and alleged victim.
The defense attorney may file motions requesting the witness list, police reports, witnesses' statements, reports of experts and any other evidence in the case. The process by which the prosecution and the defense search for the facts of the case is called "discovery." The deposition of witnesses is a discovery tool for uncovering the facts. In a deposition, the prosecutor and defense counsel are present to take the sworn statements of witnesses. Discovery depositions may be useful for both sides because they allow the defense and the state to evaluate the strengths and weaknesses of the case prior to trial.
The defense attorney may speak with the prosecutor to get some idea of the prosecutor's evaluation of the case. Depending on the strength of the defense's case, the prosecutor may decide to dismiss all charges, offer a lesser sentence or drop some of the charges against the client in exchange for a plea of guilty or no contest to other charges.
Guilty and No Contest Pleas
A client can change his plea of not guilty to either "guilty" or "no contest" at any time. A guilty or no contest plea can also be negotiated between the prosecutor, the defense attorney and the client. In exchange for the client's acceptance of the negotiated plea, the prosecutor may drop or reduce charges, or agree to a lesser sentence. If the prosecutor makes a plea offer, the defense attorney has an ethical duty to tell the client about the plea offer, even if the client has previously told the attorney that he wants to go to trial. The client has the right to accept or reject a plea offer.
If the plea is guilty or no contest, the client gives up significant rights and may face serious consequences.
Before accepting the guilty or no contest plea, the judge will question the client to make sure that he understands his rights; there was no improper pressure to accept the plea; the client knows what he is doing; he voluntarily agrees to the plea, and evidence in the case supports a finding of guilt.
If the judge accepts the plea, the judge will then proceed to sentence the client.
What is Plea Bargaining?
There is a reason why most criminal cases are resolved by plea bargaining: certainty.
Plea bargaining can be a fantastically complicated process, one that considers a wide variety of factors, possibilities, and contingencies in each case.
Since every case is different, defense attorneys and prosecutors must approach the plea bargaining process in each case with a fresh perspective. The major factors that are considered in this process include: the seriousness of the charges, strengths and weaknesses in the State's case, and the defendant's criminal history. The other factors that may be appropriately considered are nearly infinite.
What is plea bargaining? It is a method by which the prosecution and defense endeavor to resolve a criminal case without going to trial and in a manner that both sides can accept.
Prosecutors are motivated to plea bargain cases for many reasons. One such reason is that prosecutors have notoriously large caseloads. Trials consume a lot of prosecutorial effort and time. If a prosecutor is determined to resolve every case by going to trial, that prosecutor probably could not do so in two lifetimes. Plea bargaining, to the contrary, allows prosecutors to be efficient and move cases in order to deal with the never-ending stream of new cases to come.
Defense attorneys plea bargain for other reasons. Probably the most significant of these is to control the potential damages in a case in a way that best protects their clients. If the State has a strong case, and if the possible penalties are harsh, a good defense attorney may be able to plea bargain the case for a result that allows his or her client to emerge comparatively unscathed. It is not uncommon for a judge to impose a sentence after a trial has been lost that is two or three times as severe as the plea offer made on the case.
Consequences of a Guilty or No Contest Plea
When a client enters a guilty or no contest plea, he relinquishes certain rights, such as the right to:
Investigate the case further
Proceed to trial
Be tried by a Jury
Have an attorney represent him at trial
Compel the attendance of witnesses at trial
Confront witnesses who testify against him
Testify at trial
Remain silent at trial
Appeal
Non-U.S. citizens may face deportation as a result of entering a plea or being found guilty.
Felony and misdemeanor convictions and, under some circumstances, juvenile adjudications can be used to enhance state and federal sentences. Additionally, convicted felons lose access to certain federal benefits, the right to vote, serve in the military, own or possess a firearm, hold public office, and serve on a jury. They also may have a difficult time obtaining a job because in Florida criminal court records are public records.
Preliminary Hearing
In a felony case, an initial determination must be made whether there is probable cause that a person committed a crime. This determination is made by the court during a "preliminary hearing." Generally, at a preliminary hearing a police officer will testify about the alleged facts. The defendant usually will not testify at this hearing. If the judge finds that there is probable cause to believe that a person committed a crime, the case will be allowed to continue on to the trial court. Conversely, if the judge makes a finding of "no probable cause," typically the prosecution will end there.
Trial
A trial is the "fact-finding" phase of a case and is held to determine the guilt or innocence of the defendant. It is the prosecution's burden to prove the client's guilt beyond a reasonable doubt. A defendant is not required to prove his innocence, present any evidence nor call or cross-examine witnesses and has the right to decide whether to testify.
There are two types of trials: bench and jury. In a bench trial the judge decides the issues of fact without a jury. In a jury trial, jurors resolve disputed facts.
Bench Trial
A bench trial in criminal court can only occur when the prosecution and the defense agree. In a bench trial, there is no jury because the judge is the fact finder. The judge hears opening statements, the presentation of evidence and closing arguments, and then decides whether a crime has been committed and whether the client is criminally responsible as charged.
Jury Trial
In a jury trial, a judge presides and six or twelve eligible residents of the county are selected to hear the case and make a finding of guilt or innocence. The State is required actually to prove the charges beyond a reasonable doubt. Even after a person is charged with a crime, that person is presumed innocent until proven guilty beyond a reasonable doubt. The burden of proof is always on the prosecution and never shifts to the defense. This means that the defense cannot be forced to present evidence and can choose, if it desires, to present no evidence at all. Nor can the defendant be forced to testify.
The jury, not the judge, is the fact finder. During jury selection the judge, prosecutor and defense attorney question prospective jurors and the select the jury. The trial begins when the jury is sworn.
Although every trial is different, there are specific elements that make up the proceeding. A jury trial starts with opening statements from one or both sides. Opening statements tell the jury what both sides expect the evidence will show.
The prosecution must call witnesses to testify and/or introduce physical evidence because it has the burden of proving the case. The defense attorney may cross-examine the prosecution's witnesses and challenge its evidence.
After the prosecution presents its evidence, the defense attorney may ask the judge to dismiss the case (motion for a judgment of acquittal) because the prosecutor did not present enough evidence to show that the client committed the crime for which he was charged. If the judge grants the motion, the case is over. If the judge denies the motion, the defense attorney may call defense witnesses and introduce evidence. The client may testify or choose not to testify.
Every witness who testifies at trial is subject to cross-examination. This means that the defense attorney has an opportunity to question every witness called by the State, and vice versa. Frequently the testimony of an apparently credible State witness can be attacked and damaged by a well-planned cross.
After all evidence is presented, each side presents closing arguments to the jury. Once all the testimony has concluded and the evidence has been admitted, it becomes time for the jury to decide the case.
The judge then instructs the jurors regarding the laws and rules that they must consider during their deliberation. The jury meets alone to review and discuss the admissible evidence until they reach a unanimous decision (verdict). If the jury cannot unanimously decide, the judge can declare a mistrial (hung jury). If a mistrial is declared, the judge may reschedule a new trial for a later date. If the jury finds the client guilty, it is then up to the judge to proceed to decide the sentence to be imposed.
In death penalty cases, the jurors also participate in the sentencing phase. The jurors are presented evidence and arguments so they can make a recommendation to the judge to impose the death penalty or to sentence to life imprisonment.
Sentencing
Sentencing is the proceeding where the judge imposes punishment after a finding of guilty that resulted from a trial, or entry of a plea of guilty or no contest by the client. The judge may order the Florida Department of Corrections to prepare a pre-sentence investigation (PSI) report and postpone sentencing until after the report has been submitted and reviewed. The PSI includes information about the case and circumstances of the crime, any prior criminal record, the client's reputation in the community, education, employment, health and background of the client's family. The PSI may also include the client's lifestyle, behavior pattern and general attitude. When the PSI is completed, the defense attorney reviews it with the client and prepares for the sentencing hearing.
In deciding the sentence, the court will also consider many of the same factors that would have been scrutinized in a previous effort to plea bargain the case: the seriousness of the charges, the strengths and weaknesses of the evidence presented at trial, and the defendant's criminal history. At the sentencing hearing, it is imperative that the defense attorney portrays his or her client in the most positive way possible.
The defense attorney can have doctors or other experts evaluate the client and prepare a sentencing report with recommendations to be presented to the judge. The defendant must tell his lawyer in advance the names and addresses of people who want to speak at the sentencing hearing on behalf of the client.
At the sentencing hearing, the client has a right to speak and have the defense attorney make a presentation. The judge then informs the client of the finding of guilt and imposes the sentence, which can range from suspending the sentence, or a probation term, to the maximum jail or prison time allowable by law. The judge can, and, in some cases must, require the client to pay restitution to the victim along with fees and court costs.
In capital cases, the maximum sentence is death and the law provides for a sentencing process that involves jurors making a recommendation to the judge regarding whether to impose the death penalty.
Probation
Probation is an alternative to being sentenced to jail or prison and carries significant limitations on the client's liberties. The judge, using the sentencing guidelines (also referred to as the criminal punishment code), may sentence a client to probation or community control (house arrest) instead of - or in addition to -serving time in jail or prison. A probationer is under the supervision of the Florida Department of Corrections and must abide by its rules until the sentence is completed.
Community Control is an intensively supervised and restrictive program in which a probation officer makes regular unannounced visits to the probationer's home and may electronically monitor the probationer's movements.
In addition to other requirements, persons on probation or community control must regularly report to a probation officer before changing addresses or jobs or leaving the county, and must not commit any new crimes or abuse drugs or alcohol while on probation or community control.
If the probation officer believes that the probationer has violated any of the conditions of the probation, the officer can file an affidavit alleging the specific violations and may ask the judge to hold a hearing to determine if the probationer is in violation. A probationer can be arrested and held in jail pending the probation violation hearing. At the hearing, if the judge finds that the probationer violated the terms, the judge may revoke the probation and sentence the client to jail or prison or extend the probationary period. If the judge finds the probationer did not violate the terms of probation, the probationer is restored to probation.
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