Saturday, June 27, 2015

Anatomy of a Prosecution in Pinellas, Hillsborough, and Pasco Counties, Florida.

To make an arrest, a law enforcement officer must have probable cause to believe a crime has been committed. Under Florida Law, to make an arrest on a misdemeanor, the alleged offense must have been committed in the officer's presence. There are, however, some exceptions to this requirement including, for example, domestic related battery offenses. A felony offense, on the other hand, does not have to be committed in the officer's presence to effect a lawful arrest. Where the officer has probable cause to believe a crime has been committed, he or she can either make an arrest on the spot, seek an arrest warrant from a judge or magistrate, or refer the case to the State Attorney's Office for further investigation and, if warranted, the filing of formal charges.

In the former scenario, the person is taken to jail and a bond amount is set (in Florida, a person is entitled to a bond unless the offense is a capital or life felony, and the proof of guilt is evident or the presumption is great). After the arrest, the prosecutor reviews the case, and makes a decision as to whether he or she is going to file formal charges. In Florida, a charging document is called an "Information".  If an Information is filed with the clerk of court, the case is set for an arraignment.  If the prosecutor decides not to pursue criminal charges, he or she files what is called a "No Information" or a "Letter of Release" and prosecution is terminated. 

In the latter scenario (where no arrest was made after the crime was allegedly committed), the prosecutor reviews the case (usually the police report and any other evidence collected by law enforcement) and makes a decision as to whether there is a reasonable likelihood of successful prosecution. If so, the prosecutor will file an Information. If misdemeanor charges are filed, the defendant will receive a summons to appear in court for an arraignment (by mail).  If felony charges are filed, a warrant is issued for the defendant's arrest. Once again, as long as the offense is not a capital or life felony, the defendant is entitled to a bond. Whether a felony or misdemeanor charge is filed, the clerk will set the case for an arraignment thereafter. It should be noted that certain traffic offenses, such as DUI, are charged by citation. After the officer makes the arrest and files the traffic ticket with the clerk, the person is formally charged (there is no review process by the prosecutor). 

Whether the arrest is made by the police officer at the time of the alleged offense, or by warrant sometime thereafter, upon being taken into custody, the defendant must be brought before a judge or magistrate for what is called an advisory hearing or a first appearance hearing within 24 hours.  At the advisory hearing, the judge informs the person of the charge(s) upon he or she has been arrested, reviews the arrest affidavit to ensure there is sufficient probable cause to hold the person in lieu of bond, addresses the reasonableness of the bond amount, and conducts a brief financial inquiry to determine whether the person qualifies (provisionally) for the services of a public defender. 

An arraignment is not set unless and until a formal charge is filed by the prosecutor (except in certain traffic related offenses as stated above - there, the arraignment is set once the citation is filed by the arresting officer). The purpose of an arraignment is to have the judge advise the defendant of his or her formal charges, and ask the defendant whether he or she pleads guilty or not guilty. If the defendant pleads guilty, he or she may be sentenced on the spot, or sentencing may be deferred to a later date. In most cases, the defendant's attorney, upon being retained, will file a written plea of not guilty on the defendant's behalf.  The filing of this document waives the defendant's appearance at the arraignment and the case is set, by the clerk, for a pre-trial hearing. There are some exceptions this general principle however: drug court, for example, usually requires the defendant's presence at the arraignment. 

A "demand for discovery" is often filed with the written plea of not guilty (as part of the same pleading). When discovery is demanded, the State is required to provide all of the evidence in their possession against the accused, including witness lists, video tapes, police reports, audio recordings, etc. By demanding discovery, the defendant obligates himself or herself to certain reciprocal discovery requirements. It should also be noted that in Florida, the defendant is entitled to take depositions of the state's witnesses (and vice versa) in criminal cases. Other states, such as Georgia, do not permit the taking of depositions in criminal cases, except in very limited circumstances. 

Most judges will allow three (or so) pre-trial conferences before setting the case for trial. The purpose of the pre-trial conference is to keep the court appraised of the progress of the case (i.e. compliance with discovery obligations, scheduling of depositions, etc.) and to give the defendant an opportunity to resolve the case if a plea agreement has been reached. Also, if there are any issues that need to be resolved by way of a defensive motion, such as a motion to suppress, the court will usually set a special date to have the motion heard (a date that is convenient for the court, the attorneys, the defendant, and the witnesses to be called by either side). If a motion to suppress is granted, the state may or may not choose to appeal the court's ruling. If not, then they will usually drop the charges, but not always. If the evidence suppressed is not dispositive (in other words, there is still enough evidence against the accused to proceed with prosecution) then it is unlikely the charge will be dropped. 

If the case is resolved at a pre-trial conference, then the defendant is usually sentenced at that time and the case is disposed of.  This is not always the case, however.  The court may accept a plea of guilty of no contest, and set the matter for a sentencing hearing at a later date to allow the defendant's attorney to prepare and present facts and/or argument in mitigation ( and for the state to rebut the same). 

If the defendant decides to exercise his or her right to a trial (either before a judge or judge and jury), then a trial date is set. If the defendant is found not guilty, then prosecution is terminated and the state is constitutionally barred from re-initiating a subsequent prosecution based on the same conduct. If the defendant is found guilty, then the judge is required to sentence the defendant to any minimum penalties prescribed by law (for that particular offense) and has the discretion to sentence the defendant up to the statutory maximum. If found guilty, the defendant may file certain post trial motions, such as a motion for new trial, and may also want to file an appeal. 

The preceding is just a brief overview of the process. Specific questions should be directed to an experienced Tampa Bay area criminal defense attorney.

For more information, visit our website:  St. Petersburg Criminal Defense Attorney


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