- Florida Criminal Process Explained
- First Appearance
- Probable Cause Determination
- Bond Determination
- State Attorney Filing Of Formal Charges
- State Attorney’s Offices Has Sole Discretion To Bring Charges
- Discovery Process
- Plea Bargains
- Why Are So Many Plea-Bargained By Defendants?
- Motion Practice
- Two Types of Criminal Trial
- Non-jury Trial
- Jury Trial
When investigated or accused by police of committing a crime in Palm Beach County, you will find lots of attorneys but if you are looking for the best criminal attorneys in West Palm Beach then you understand that you need defense counsel that will defend you against the prosecutor's allegation of wrongdoing. The criminal justice system has become a joke where many attorneys' first impulse is to accept a plea bargain. Plea bargains should only be considered after careful review of all evidence.
Prosecutors rely on police and eyewitnesses to present their case. A top criminal defense attorney will challenge the method by which police made an arrest, whether any of the defendant’s rights were violated, and challenge the accuracy of eyewitness testimony. In order to zealously represent a criminally charged defendant, an experienced criminal lawyer will embrace the information presented below like weapons to be used against any accuser.
- Florida Law outlines criminal charges ranging from simple misdemeanors to felony crimes.
- Florida criminal statutes outline what is prohibited by law, See Chapters 775-896
- County and city ordinances also outline additional crimes
- Florida Jury Instructions provide additional information
- Constitutional Amendments often used in the defense of criminal cases:
- 4th Amendment - Search and Seizure
- 5th Amendment - Due Process and Right to Remain silent
- 6th Amendment - Right to a Jury Trial and Right to obtain witnesses
- 8th Amendment - Right to be released without excessive bail
- 14th Amendment - Equal Protection under the law
- View the Bill Of Rights in their entirety
A criminal defense firm with an intimate knowledge of the criminal justice system allows for better representation. Don’t be quick to give up on your case. Hire the best attorney that you can, if you made a mistake and are second guessing your representation then seek a second opinion.
- Possession of Cannabis
- Marijuana Cultivation Crimes
- Possession of Cocaine
- Trafficking Cocaine
- Selling, Purchasing, Manufacturing, Delivering, or Possessing Drugs with Intent
- Selling, Manufacturing, Altering, Delivering, or Uttering Prescription Drugs
- Selling Fake Controlled Substances
- Drug Paraphernalia Crimes
- Introducing or Receiving Contraband from a County Detention Facility
- Drug Trafficking
- Carrying a Weapon or Firearm Concealed
- Persons Engaged in a Criminal Offense Having a Weapon or Firearm
- Improper Exhibition of a Weapon or Firearm
- Discharging Firearm in Public or on Residential Property
- Furnishing Weapons to Minors
- Shooting or Throwing Missiles
- Felons Carrying a Concealed Weapon or Possessing Firearm/Ammunition/Electric Weapon or Device
- Altering or Removing Firearm Serial Number or (2) Selling or Delivering a Firearm with Serial Number Altered or Removed
- Using a Firearm While Under the Influence
- Discharging any Destructive Device or Attempt to Do So
- Making a Fake Bomb Threat
- Possession of Short-Barreled Rifle
- Misdemeanor Battery
- Assault on a Law Enforcement Officer, Firefighter, Etc.
- Battery on a Law Enforcement Officer, Firefighter, Etc.
- Aggravated Assault on a Law Enforcement Officer, Firefighter, Etc.
- Aggravated Battery on a Law Enforcement Officer
- Assault or Battery on a Person Over 65 Years of Age
- Assault and Aggravated Assault
- Felony Battery
- Aggravated Battery with a Deadly Weapon or Serious Injury
- Aggravated Battery on a Pregnant Woman
- Violation of an Injunction for the Protection Against Repeat Violence, Sexual Violence, or Dating Violence
- Battery on a Facility Employee by Throwing Body Fluids or Other Things
- Stalking and Aggravated Stalking
The Florida Criminal Process
It is important that everyone understand the criminal process. It can be scary when the process is not known to a defendant. The criminal attorneys at the law office of Roger P. Foley have outlined the process for your convenience. If you are in need of a criminal defense trial lawyer, contact our West Palm Beach office to assist you in defending the charges.
After a person is arrested, they will be brought to a court within forty eight (48) hours. This court hearing is known as a “First Appearance”.
The judge that presides over “First Appearance” is not the judge that presides over the entirety of the case but is there ONLY to determine probable cause and set a bond. During this hearing the judge will notify you of the initial charges, those the police have listed in their police report, and determine if there is probable cause.
Probable Cause Determination
A probable cause determination is made by the First Appearance Judge after reading the probable cause affidavit (police report) submitted by the arresting officer. The judge must determine if there is sufficient evidence for the arrest by reviewing the police report.
Note: Probable cause is a much lower burden of proof than the one prosecutors will need to convict you at trial.
If the First Appearance Judge finds that there is probable cause for the arrest, he/she will then determine bond conditions.
If the judge after reviewing the police report finds that probable cause does not exist, he/she will release the person without the necessity of posting a bond. This is often referred to as ROR or released on one’s own recognizance. This determination is for bond purposes only. Often when there are defects in the police report, the state attorney whose function is to make a filing decision will request additional reports from the arresting officer.
If the judge at First Appearance determines that there is probable cause for the arrest, the judge will set a bond amount. Once bond is set, the Defendant may post the bond by paying a bondsman 10% of the bond and/or posting a cash bond. Upon payment of bond, the defendant will be released from the jail and will need to retain an attorney as soon as possible, if he/she has not already done so.
Note: Felonies whereby the defendant is facing life in prison are not entitled to bond at the First Appearance. The person charged will need to request a separate bond hearing, called an Arthur Hearing, at a later time before the trial judge.
State Attorney Filing of Formal Charges
Although you were arrested by the police with particular charges, it does not mean that the state attorney’s office will file formal charges against you. After arrest, a packet of information is given to a case filing attorney. The packet of information is the evidence the police used to justify the arrest. The case filing attorney is the prosecutor that is tasked with deciding whether to file the charges as they were presented by police, reduce the charges, increase the charge or decline (dismiss) the charges.
In the first 7-30 days after arrest, a filing decision will be made by the state attorney’s office. The defendant's attorney will act quickly to find out which prosecutor has been assigned to make a filing determination about the case. This prosecutor is referred to as the “case filing attorney.” Defense counsel will present information of their client’s innocence and set a meeting to discuss the defendant’s version of events in an effort to have the case declined/dismissed. The defendant is never present for this part of the case. The goal of contacting the case filing attorney is to have the charges declined or reduced.
Note: If the defendant is still in custody (jail) after 33 days, and no filing decision has been made the judge will release the Defendant on their own recognizance.
State Attorneys Offices has Sole Discretion to Bring Charges
The State Attorney’s office decides who is charged with crime. Although the victim has input, it is the sole discretion of the filing attorney whether charges are formally filed against the defendant.
If an alleged victim or witness chooses not to pursue the case or wishes that charges be dismissed, the State Attorney’s office will listen but the prosecutor has the final decision of whether to bring charges or not.
Florida law permits the State Attorney the discretion to bring or not bring formal charges. It also gives the state subpoena power to force a victim or witness to appear in court to testify. Failure to show up after a subpoena can result in a pick-up order by the judge, meaning police will come and pick you up and bring you before the Judge to answer why you failed to show up for court when legally subpoenaed.
The Arraignment is the first court hearing where the formal charges are read to the Defendant. At this hearing you have three options:
- Plead Guilty (never recommended);
- Plead Not Guilty (Recommended);
- Plead Not Guilty and Apply for a Pre-Trial Diversion Program (Recommended)
Pleading Guilty or No Contest at an arraignment is generally a terrible idea. It does not allow you time to defend the case and acquire the best result. A plea at arraignment may be worded as a time served sentence. A time served sentence means that you have been found guilty and whatever time you spent in jail is your sentence. Defendants’ sometimes do this to get the process over with but being found guilty of a crime can have other consequences; difficulty with employment, leasing an apartment, suspension of driver’s license, or becoming a convicted felon. Accordingly, a plea-bargain that is accepted without reviewing the discovery ignores defenses available in the case and should not be done.
The only plea a Defendant should consider at Arraignment is the entering of a pre-trial diversion program that ultimately results in dismissal of the charges.
Upon pleading not guilty at the beginning of the case, the defense attorney will request Discovery from the prosecutor. The Discovery process allows the defendant’s attorney to review all the evidence the State of Florida has against the defendant which allows the Defendant’s attorney to determine applicable defenses in the case. The discovery generally includes: video, audio, photographs, police reports, 911 calls, Cad reports, witness names and anything else that the prosecutor has in regards to the allegations in the case.
When the State Attorney forwards the Discovery materials to the defendant’s attorney, they often forward it with a plea bargain offer.
Plea Bargains are also part of the discovery process. A plea bargain is an offer for the Defendant to accept a negotiated sentence and not fight the case. The principle behind a plea bargain is that the defendant will be offered a better sentence, lesser penalty, than what they would receive after trial, if convicted. Plea-bargaining also speeds up the judicial process, meaning that courts can operate faster as cases are closed without the need for trial. Studies have determined that 94 percent of criminal cases are plea bargained.Why are so Many Cases Plea-Bargained by Defendants?
Criminal cases are plea-bargained for one of the following reasons or some combination thereof:
- The Defendants are actually guilty.
- Defendants are scared of going to jail or prison. Many defendants choose not to go to trial, even if innocent, because if they lose it's almost guaranteed that they will be incarcerated.
- Defendants cannot afford the financial burden of a trial. Trial is expensive and there are no guarantees as to the end result.
- Defendant’s believe that the process is corrupt. They believe that the police lie or exaggerate what occurred to enhance the likelihood of conviction and the Defendant does not trust that a judge or jury will believe their version of events over that of law enforcement.
- Defense lawyers do not do the necessary work to give the Defendant the best opportunity to be successful. If a Defendant does not have confidence in their lawyer capabilities they may accept a plea instead of going to trial.
Depositions are part of the Discovery process. A deposition is where the defense attorney asks questions and receives answers from witnesses under oath. The questions asked by the criminal defense lawyer are used to find discrepancies and conflicts in the evidence and provide the necessary information to prepare for motions and/or trial. All of the questions and answers are written down by a court reporter and a transcript is later provided to the defense lawyer that contains everything that was said during the deposition. Upon receiving a transcript it is shared with the Defendant for their review. Shortly thereafter, the criminal defense attorney(s) will meet with the defendant to review all the transcripts and determine the best course of action in the case.
Depositions are always allowed in a Felony Case. In misdemeanor cases, the defendant’s attorney must request permission to take depositions. The decision is the judges.
A dispositive motion is a motion that if granted by the judge would end the case in favor of the defendant.
Motions to Dismiss are dispositive. A motion to dismiss is a sworn motion that the defendant must swear to. A motion to dismiss asks the Judge to dismiss the charges against the Defendant because, even if the court accepts all of the facts in a light most favorable to the State, the Defendant could not be guilty of the charge(s).
Motions to Dismiss are rare and are only filed when there are no disputes regarding the facts of the case. Remember, most criminal law cases revolve around a dispute of the facts and facts are what are before a Jury.
If a Motion to Dismiss is granted then your case will likely be dismissed, unless the State appeals the decision.
A motion to suppress may or may not be dispositive. A motion to suppress is a written request asking the Judge to eliminate/suppress evidence in your case based on mistakes made by the police. Some common errors made by law enforcement involve the 4th (Search and Seizure) and 14th (Due Process) Amendments of the Constitution. If successful in a Motion to Suppress, all or some of the evidence will be suppressed in your case. When evidence is suppressed by the judge, it makes it difficult for the State to convict you of the crime. For example, if the stop of a vehicle is suppressed then any illegal evidence (drugs) found in the car are suppressed. With the evidence suppressed, the jury could not find the defendant guilty of possession of narcotics because there would be no evidence about drugs introduced at trial.
Two Types of Criminal Trial Non-Jury Trial
A Non-jury trial is a trial by a judge. This is often referred to as a bench trial. The judge listens to all the evidence and determines whether or not you are guilty of the charges against you.
A non-jury trial is sometimes used in Misdemeanor cases when parties do not want to spend the time picking a jury. A non-jury trial is allowed when all parties are in agreement, the prosecutor, the defendant, and the judge. Often in these non-jury cases, the parties stipulate to no jail and no adjudication which means that if the defendant loses, or is guilty, that the judge cannot convict or incarcerate the defendant. The worst sentence a defendant can receive is a withhold of adjudication and probation.Jury Trial
In a jury trial, there are six or more jury members and a judge will referee to ensure the parties, the defense and prosecution, are following the rules of court. The jurors job is to listen to the facts and determine guilt or innocence of the Defendant. The presiding judge determines the issues of law. During a criminal trial, both the prosecutor and defense attorney will place evidence before the jury.
Remember, if charged criminally, you are allowed to choose your own attorney. Pick a criminal defense attorney that has passion, experience, aggression, knowledge, education and the ability to properly defend your case. Contact our office and meet with R. P. Foley and decide whether he has the traits and abilities you are looking for in a defense lawyer.