Felony and Misdemeanor Procedures
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.
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.
Appointment of the Public Defender by the Judge
A judge can appoint the Public Defender to represent a defendant
after reviewing his or her financial circumstances and determining that
the defendant is indigent. As defined in Florida law, a person who has
income that is equal to or less than 250% of the current federal poverty
guidelines, or who is unable to pay for the services of a private attorney
without substantial hardship to his family, is indigent and qualifies for
the services of the Public Defender.
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. If the State files charges, the judge explains
to the defendant the nature of the charges and asks him to respond to the
charges by entering a plea of guilty, no contest, or not guilty.
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.
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.
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 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.
After all evidence is presented, each side presents closing arguments
to the jury. 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.
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
attorney (public defender) 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.
Fees, Costs and Restitution
The services of the Public Defender are not free unless the client is
acquitted (found not guilty) or the charges are dismissed. If the judge
makes a finding of guilt after plea or trial, the judge may require the
client to pay attorney's fees for the reasonable value of the services
the Public Defender provided, court costs and restitution. The judge can
require the payment of the costs and fees as a condition of the sentence
or can impose a lien on the client's property. Additionally, a judgment
may be filed against the client for attorney fees, court costs and
restitution.
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