Friday, November 22, 2013

You've Been Arrested in Fort Lauderdale, Now What Do You Do?

Step-by-step Guide to the Criminal Law Process in Florida

A person is arrested in Florida based on an officer witnessing a criminal act, or as a result of a criminal act being reported to law enforcement.  The officer generates a report known as a probable cause affidavit setting forth the charges upon which the arrest is based, and also includes a short statement of facts which form the probable cause for each offense.

After being arrested defendants must be taken to a first appearance before a judge where a bond amount is determined, based on the seriousness of the charges, the defendant's past history, the defendant's ties to the community, and the relative danger to the community that the defendant poses.
A defendant may post the bond and be released, or do nothing and remain in custody pending other action in the case.

Next the officer forwards the report to the local prosecutor's office. The reports are reviewed by attorneys in the local prosecutor's office.  The charges listed by law enforcement are merely charging suggestions.  Case filing prosecutors read the reports and determine what the appropriate charges, if any, should be.  If an officer arrest someone for A and B as an example, a prosecutor is free to file the charges as presented, or only charge A, or only charge B, or charges C and D that the officer never considered, or no charges at all.  The officer's suggestions have no legal effect except to be a basis for what bond a person has to post to get out of jail.

After the local prosecutor's office determines what charges, if any, to file against a defendant, which typically takes 30 to 40 days, an arraignment is set.  An arraignment is a defendant's first formal appearance in a criminal matter and the purpose of an arraignment is to formally advise a defendant of the charges.

In certain cases, the State will present an offer to resolve the case.  This could typically involve anything from fines to probation, to time in the county jail, to time in state prison for more serious offenses.  The offer is generally based on the nature of the charges, the prior record of the defendant, and the victim's wishes if there is a victim in the case.

The Defendant is free to accept this "negotiated resolution" or "plea."  While the judge must approve of the terms suggested by the State, with a negotiated resolution the defendant knows what he or she is getting to be done with the case.

Most Defendants that are charged with more serious offenses simply enter a plea of "Not Guilty."  This does not mean the defendant must go to trial, but means that at this time, that defendant wants to see the State's evidence, fight the case, or explore other options.  The defendant's attorney and the prosecutor will engage in a process called discovery where the State must provide the accused with any and all evidence that they seek to use against the defendant at trial.  This includes any reports, notices of any physical evidence, and a list of any witnesses who may be called to testify.

The Defendant may elect to take sworn statements of the witnesses, examine the physical evidence, hire experts, and file motions challenging the evidence to be presented.  Evidence may be excluded as a result of these efforts, and the case could potentially even be dismissed if crucial evidence is excluded.

If the Defendant elects to go to trial, the not guilty plea will be maintained throughout the pendency of the case and a judge or jury, depending on the type of case and desire of the defendant, will decide whether the State has proved their case.

If the Defendant decides that a trial is not in his best interests, a change of plea to "Guilty" or "No Contest" may be entered.  A plea of "No Contest" is often referred to as a plea in that person's best interests, without an admission and basically means, I didn't do it, I didn't not do it, but I find it in my best interests to resolve this matter without a trial.

Another option is an open plea which says: "I don't want a trial, but I don't believe I should get what the State is asking for either. So I would like the Court to determine my sentence."  An open plea is used as a last resort when a trial is not wise and the State refuses to make any reasonable offers.  In most cases, when a Defendant enters an open plea, the Court will advise the Defendant that the Judge may sentence them to the maximum amount allowed by law on the offense, and he or she is agreeing to that.  The Defendant takes the risk of getting something worse than the State is offering in order to hopefully receive something more reasonable from the judge.  In many cases, this works to the Defendant's advantage, but in some cases the sentence becomes worse than what the prosecution was looking for.  Only an experienced attorney can effectively help a defendant determine if he or she should take their chances, based on what judge is presiding over the matter, and the unique facts of the case pending.

Law Offices of Eric A. Kay

123 S.E. 3rd Ave #252 Miami, FL 33131
Phone: (954) 330-8994

Ft. Lauderdale:
12 SE 7th St
Suite 707
Fort Lauderdale, FL 33301
Phone: (954) 764-7373

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