WHAT TO EXPECT
Whether this is your first time involved with the criminal justice system or you've been here before, the process of how a case develops can be complicated. I have the experience as a former prosecutor to steer the ship and guide you through these raging waters, but it always helps for a client to understand the big picture. You don't just hire me to show up in court, you hire me to have access to my knowledge of how to craft a powerful defense, how to see the weaknesses in the State's case and how to use the procedural rules to your advantage. Whether it's filing the right motions or pursuit of pretrial diversion programs that may lead to a dismissal of all charges, or proactively seeking early termination of your probation, or working toward the sealing/expugement of your arrest, I have the experience to guide you through this difficult ordeal.
1. ENCOUNTERING LAW ENFORCEMENT
Whether you encounter law enforcement by being stopped in a car or on foot, there are things you can do to help or hurt yourself. What will help you is to be as quiet as possible, do not volunteer information. Law enforcement are not your friend, they are not trying to help you, they will not go easy on you if you volunteer information. Anything you say or do, anything they see, smell or hear will be used in their determination of probable cause to arrest. Be cooperative and do not argue or ask the police why they are stopping you. Law enforcement does not have to tell you. The most important thing you can ask is "Am I free to go?" If you are told you are not free to go then you are in custody. If the police then ask you any questions that attempt to elicit incriminating statements, you should immediately inform them that you want an attorney and they are not permitted to ask you any further questions.
You may be issued a Notice to Appear in court or arrested. Each of these occurs when the police believe they have probable cause that you committed a crime. For certain crimes, law enforcement has the sole discretion whether to place you under arrest or issue a Notice to Appear. If you are issued a Notice to Appear instead of being arrested, there will be a court date listed and if you miss that court date a warrant for your arrest will be issued.
2. FIRST APPEARANCE
If you have been arrested, then you will see a Judge within 24 hours. The Judge will confirm the finding of probable cause by law enforcement. If the Judge finds no probable cause for any of the crimes arrested on, the State will have 24 additional hours to obtain more information from the officer to prove probable cause exists. At this point, you are not charged with any crimes by the State.
The Judge will also set conditions of release. This usually includes a bond amount for each crime arrested on (certain crimes do not permit bond). If you are arrested on a violation of probation you typically will not get a bond. Conditions of release may also include a no contact order, not returning to a location, or random urine testing.
3. STATE FILES CHARGES
If you were arrested or issued a Notice to Appear, the State of Florida, through an Assistant State Attorney (also called a prosecutor), is required to file charges within 90 days for a misdemeanor or 180 days for a felony, or else charges for the crimes alleged by police may not be filed at all. The State reviews all of the information they have on the incident and will file charges on anything they believe they can prove to a jury beyond a reasonable doubt. The State is not limited to the crimes you may have been arrested on by law enforcement, they may charge you with additional crimes. If the prosecutor files a charge you were not arrested on then a Judge may alter your conditions of release including increasing your bond amount.
At arraignment, the Judge reads the charges that the State of Florida (through the Assistant State Attorney) has filed against you. You may ask the Judge to appoint a public defender or inform the court that you have or intend to hire a private defense attorney. Lastly, you will enter a plea of either not guilty, guilty or no contest. It is highly recommended to obtain the advice of an attorney before entering a plea of guilty or no contest. There are many crimes which have significant ramifications by pleading guilty or no contest, no matter how small the crime may seem to be to you.
Discovery is all of the information law enforcement has collected to help build a case against you for the crimes charged. This includes police reports, sworn witness statements, video footage, recorded jail telephone calls, scientific analysis of blood/DNA/fluids, social media, medical records, business records, government records, court records, depositions. You have a right to review and copy all of this information.
6. PLEA NEGOTIATIONS
It is important to note that some documents disclosed in discovery by the State are not admissible in trial and some are admissible. Professional legal advice is essential to plan an effective trial strategy and to determine whether a plea agreement is in your best interest.
In most cases, the Assistant State Attorney will relay a plea offer to you. This means that if you agree to accept the suggested sentence then you will plead guilty or no contest and the State will recommend the sentence to the Judge. Sometimes the prosecutor will agree to reduce the charge as part of the plea agreement. The Judge may sentence according to the agreement or may not accept the sentence. If the Judge does not agree to the negotiated sentence then the prosecutor and defense will usually continue negotiations to see if an agreement can be reached that all parties, including the Judge, will accept.
Additionally, the defendant has the option to plead to the bench, also called a blind or open plea. This means that the Assistant State Attorney is mostly cut out of the process. You plead guilty or no contest and the Judge issues a sentence. The Judge will consider any aggravating information from the prosecution and any mitigating information from the defense. A disadvantage of pleading to the bench is that the Judge may not amend the charges filed by the State, therefore any open plea is "as charged."
All defendants are innocent until proven guilty beyond a reasonable doubt to a unanimous jury. The Assistant State Attorney has the burden to present any and all evidence to prove that the crimes charged were committed by the defendant. When the State presents all of their evidence, the accused has an opportunity to present evidence of any defense, and then the State may present evidence rebutting the defendant's evidence. Some trials last a day and some last weeks, depending on the charge and the amount of evidence. As to each crime charged, the jury will return either a verdict of not guilty, guilty or guilty to a lesser included offense. A lesser included offense is a crime which has less significant potential penalties than the crime charged.
If you have been found guilty by a jury of the crime charged or a lesser included offense, the Judge has the sole responsibility to impose a sentence. Part of the sentencing process is a pre-sentencing investigation which gives the Judge information they may consider in sentencing. The Assistant State Attorney will provide the Judge with a score sheet that assigns a point value to the crimes convicted on as well as past convictions and any aggravators (like firearms, gang activity, drug trafficking). The score sheet uses a calculation that results in the minimum amount of time the Judge may sentence. Defense is permitted under certain limited circumstances to argue that the defendant qualifies for a sentence lower than the minimum sentence allowed by the score sheet (also called a downward departure), but that is completely in the discretion of the Judge. Additionally, there are certain enhanced sentences outlined in the Florida Statutes that when pursued by the State, require maximum sentences or enhanced maximum sentences. Sentences may include fines, probation, or incarceration.
9. VIOLATION OF PROBATION
In certain cases, the resolution may lead to the defendant being placed on probation. Most people accused of crimes would prefer probation to incarceration because they don't want to spend time behind bars, but probation can be a blessing or a curse. For some, probation gives a helping hand with potential requirements of taking classes, community service or going through a drug/alcohol evaluation and treatment, but for others it can set you up to do significantly more time incarcerated than you would have originally been sentenced to in the first place. When faced with the choice of a short jail or prison term versus a long probationary period, a defendant may make a better choice to spend a short amount of time behind bars. Not everyone can be successful at probation and the longer the probationary period the more chances there are to violate.
A violation of probation is not a new case, it is a re-sentencing on the original crime. If your violation is the commission of a new crime, then you will also have a separate case for that new crime. Many people believe the punishment for a violation of probation will be proportional to what they did to violate. This may or may not be correct depending on the Judge. If your new crime is small, then the punishment for that crime may be small, but if the crime you were put on probation for was a big one and you were given a break with probation, there is a strong possibility that you will be punished harshly on the re-sentencing. Any violation of probation that is not a new crime is called a technical violation and while many Judges will punish less severely for technical violations, the Judge may still re-sentence you up to the maximum penalty.
For every defendant placed on probation, it is best to realize that you are getting a lucky break and you should follow the rules of probation perfectly. Do not take any violations of probation lightly.