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TRANSCRIPT
BASIC CRIMINAL LAW
Overview of a criminal casePresented by:
Joe BodifordBoard Certified Criminal Trial Lawyer
www.FloridaCriminalDefense.comwww.bLAWgger.com
THEFLORIDA
CRIMINAL PROCESS
Source: http://www.fsu.edu/~crimdo/cj-flowchart.html
ARREST
In order to be arrested, there must be what's called "probable cause." This means that there must be a reasonable belief that a crime was committed and the person to be arrested committed the crime. An arrest warrant is not necessary.
Once placed under arrest, two important constitutional rights apply: the right to remain silent and the right to have an attorney. After an arrest, the defendant is not required to say anything else to police or investigators, until an attorney is present. The accused must be given the opportunity to contact an attorney.
Advise client NOT TO TALK TO
ANYONE,and inquire about any
statements already given (and whether Miranda rights
read).
CALL THE CRABMAN TO GET ME OUT . . .
FIRST APPEARANCE Once arrested, the defendant will appear before a judge within 24 hours of arrest.
The judge will then advise the defendant of the charge(s) for which he or she has been arrested.
The judge will then decide if the police had a sufficient legal basis for the arrest (make a probable cause determination). It is important to attack the sufficiency of the probable cause statement as a way to get the client released or bond lowered.
The judge will then decide if pretrial release (bail) is appropriate in the case, and if so, how much.
IT IS IMPORTANT TO BE AT THIS HEARING IF AT ALL POSSIBLE.
BAIL (PRETRIAL RELEASE)
The purpose of bail is to insure the defendant’s presence at scheduled court appearances. There is a right to bail, unless the defendant is charged with a capital crime (i.e. carries a penalty of either life imprisonment or death) or facing a violation of probation. Under the Florida Rules of Criminal Procedure non-monetary conditions of release are specifically preferred; however it is the general practice for a judge to require that a bond be posted.
In setting bail, the judge should be informed of how long the defendant has lived in the area, whether he or she has family living in the area, whether he or she is working, whether the defendant has been allowed out on bail before and appeared in court when required, and whether the defendant has a criminal record.
If the court finds that the charge is not a serious or substantial, or that the defendant will appear in court when required, the judge has the option of releasing the defendant without posting bail (release on own recognizance, or ROR).
If the judge imposes bail in an amount that the defendant cannot afford, a motion to reduce bail may be appropriate. However, there is not a right to multiple bond hearings unless there are significant changes in circumstances.
ARRAIGNMENT
After formal charges are actually filed, an arraignment will be scheduled.
The arraignment is not a trial and not a time when evidence can be presented. The purpose of an arraignment is for the defendant to be informed of the charges against him or her, and for the defendant to enter a plea.
A retained attorney may enter a plea of not guilty on the defendant’s behalf and waive his or her appearance.
The case will then be given pre-trial and trial dates. (*NOTE: some judges will set the case for trial if you are not present; others and some prosecutors will want a waiver of speedy trial if it is not set for trial directly from arraignment.)
PLEAS
Florida recognizes three pleas: Not guilty, guilty; and nolo contendere (“no contest”). A not guilty plea is entered by the judge on behalf of a pro se defendant, at the beginning of the discovery phase, or when the defendant wants to go to trial.
If a defendant pleads guilty or nolo contendere, either as charges or to some lesser charge, the judge will ask the defendant questions in order to confirm that the defendant knows what he or she is accused of, that he or she understands the penalties, and that no one is forcing the defendant to enter the plea. This process is known as the plea colloquy.
The majority of the time, a plea is entered pursuant to a negotiated plea agreement. However, even if the State and defense have a negotiated plea agreement, the judge is not required to accept the agreement. In the case where the court refuses to accept the plea, a decision has to be made to renegotiate an agreement acceptable to the judge, proceed to trial, or enter an “open” plea as charged (where there is no agreement as to what sentence the defendant may receive).
DISCOVERY
Florida is an open discovery state, i.e. both the State and the defense have to make full and complete disclosure of witnesses and evidence intended to be used at trial.
The defendant does not have to participate in discovery (can proceed to trial “by ambush”).
Certain actions will trigger the discovery process, such as a public records request.
Carefully consider all witnesses and evidence, and disclose everything in a timely manner.
The State must disclose all evidence that is favorable to the defendant.
Depositions in felony cases ONLY.
SPEEDY TRIAL
Under the Sixth Amendment of the United States Constitution, the trial be held within a certain time frame after a person has been charged with a crime.
This right can be waived by asking for additional time for the preparation of the defense.
Speedy trial rights in Florida: Speedy trial without demand: In most cases, a defendant will be brought to trial within 90 days of arrest if the crime is a misdemeanor, and within 175 days of arrest if the crime charged was a felony.
Speedy trial with demand: With limited exceptions, every person charged with a crime has the right to demand a trial within 60 days.
ALTERNATIVES TO ENTERING A PLEA Pretrial Diversion
Pretrial Diversion is a diversionary program run by the State Attorney's Office and is usually reserved for first time, nonviolent offenders. The diversion program is similar to probation, in that once accepted into the program, the defendant must report once a month to a supervising officer, undergo random drug testing, complete community service hours, and refrain from being involved in any criminal activity. The charges will be dropped upon successful completion of Pretrial Diversion.
Pretrial InterventionPretrial Intervention is similar to Pretrial Diversion; however, it is run by the Court. The Pretrial Intervention program is also similar to probation, in that once accepted into the program, the defendant must report to the Court on a regular basis, be evaluated for and undergo any recommended drug treatment, complete any other specific requirements ordered by the Court, and refrain from being involved in any criminal activity. The charges will be dropped upon successful completion of Pretrial Intervention.
Drug CourtDrug Court is a diversionary program created to address the issue of first time felony drug offenders. The program provides for the identification, evaluation, case management and placement of substance abusing offenders in order to avoid entering the formal criminal justice system. The Drug Court Judge reviews progress reports on each participant. Incidents of noncompliance are reported immediately to the Drug Court Judge, along with recommendations as to consequences to be imposed. Upon successful completion of Drug Court the charges will be dropped.
THE TRIAL
Jury trial or bench trial?Jury Selection (Voir Dire)Sequestration of the Witnesses Close of the State's Case:
Once the State has called all the witnesses it believes necessary to prove the legal elements of the crimes charged, it will rest. At this time, the Court allows the Defense to make a Motion for Judgment of Acquittal (JOA). A JOA motion asks the Court to find that the State has failed to make a sufficient showing to allow the specific charge to go to the jury. This motion is rarely granted, however, counsel must fully argue the facts and the law to preserve the issue for appeal (no “boilerplate” motion).
Closing Argument
SENTENCINGMisdemeanor Offenses - Misdemeanor offenses are handled by the county court and are usually
considered less serious crimes than felony offenses. Second Degree Misdemeanor: A second-degree misdemeanor is a crime punishable by no more than sixty days in jail, six months of probation, and a $500 fine. First Degree Misdemeanor: A first-degree misdemeanor is a crime punishable by no more than one year in jail, one-year probation, and a $1,000 fine.
Felony Offenses - Felony offenses are handled by the circuit court and are punishable by the possibility of more than one-year imprisonment. Felony offenses are sentenced pursuant to Florida's criminal punishment code ("CPC"). Under the CPC,each felony is scored a specific amount of points. The higher the level a felony is designated, the more points that will appear on the CPC scoresheet. A score of more than 44 points will subject the defendant to a minimum term of imprisonment. If the score is less than 44 points, a judge is not required to sentence the defendant to prison, but may still do so.
Third Degree Felony: A third degree felony is punishable by up to five years in prison, five years probation, and a $5,000 fine.
Second Degree Felony: A second-degree felony is punishable by up to fifteen years in prison, fifteen years probation, and a $10,000 fine.
First Degree Felony: A first-degree felony is punishable by up to thirty years in prison, thirty years probation, and a $10,000 fine.
Life Felony: A life felony is punishable by life in prison without the possibility of parole, or probation for life, and a $15,000 fine.
Capital Felony: A capital felony is punishable by death or life in prison without the possibility of parole.
SENTENCING (CONT’D)
Pre-sentence Investigation Upon entry of a plea of guilty or nolo contendere, or a finding of guilt after a felony trial, the judge may postpone sentencing and order a pre-sentence investigation (PSI) for a first-time felony offender. The PSI informs the judge of the defendant’s background, and helps the judge decide the sentence. A probation officer will question the defendant and may question members of the defendant’s family, friends, witnesses in the case, and even both attorneys in order to make this report to the judge. The PSI includes the cause and circumstances of the crime, the defendant’s prior criminal record, if any, and background about the defendant’s family, education, employment and health. If probation is a possibility, the PSI will include information about the defendant’s plans for the future.
IncarcerationProbation Community Control (or “jail at home”)
APPEALS
If a defendant is convicted and wants to appeal, or has plead after losing a dispositive motion, he or she must do so within 30 days after sentencing.
There is usually no point to an appeal from a plea of guilty or nolo contendere if the sentence imposed was legal. However, the right to an appeal exists and a notice of appeal must be filed if the defendant wants to appeal.
If the case is appealed, the trial judge may allow the defendant release on bail until a final decision is reached by the appellate court.
EXPUNGEMENT
In Florida, under some circumstances, some people may be able to have a criminal record expunged, which means that the record is no longer available for most purposes and the person can legally deny having been arrested. However, an expunged record may be accessed if one applies for jobs in law enforcement, or involving contact with children, or to the Florida Bar.
One may be eligible for expungement of records relating to a single arrest if he or she has never been found guilty of a crime, including the offense for which he or she is seeking expungement. In other words, if the charges are dismissed or the person is found not guilty, the records relating to that arrest may be expunged.
In order to get an expungement, the defendant will have to obtain a certificate of eligibility for expunction from the Florida Department of Law Enforcement. After getting the certificate, he or she must file a court petition. The court will decide whether to order the record expunged.
Juvenile records may be expunged in the same manner. Also, juvenile records are expunged by the state of Florida when a juvenile offender reaches age 24 (age 26 for serious or habitual offenders).
SEARCH & SEIZUREStops
One may be stopped for questioning by the police. A stop is not the same as an arrest because, although a citizen may be detained, he or she isn't moved to a different location. During a stop the police officer may ask questions, but one has the right to refuse to answer.
Search WarrantsA search warrant authorizes police to conduct a search of a specific, place such as a residence. In order for a warrant to be issued by a judge, "probable cause" is necessary.
Probable cause to search means that It is more likely than not that the specific items to be searched for are connected with criminal activities and that those items will be found in the place to be searched
Warrantless SearchesThe general rule is that warrants are required for searches. However, search warrants are not required for the following:
Searches incident to arrest: Police officers are permitted to search one’s body and/or clothing for weapons or other contraband when making a valid arrest. Automobile searches: If one is arrested in a vehicle, the police may search the inside of the vehicle. To perform a complete search of the vehicle (such as in locked glove compartments, for example), probable cause is necessary. Exigent circumstances: Searches may be conducted if there are "exigent circumstances" which demand immediate action, such as to avoid the destruction of evidence. Plain view: Police do not need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view. Consent: If one consents to a search of one’s body, vehicle, or home, police are not required to have a warrant. One is not required to consent to any police searches.
FEES, AGREEMENTS, ETC
Flat fee or hourly fees are OK, but no contingent fees
OK to take payments, but not charge more to do so
Get a signed retainer agreement with very carefully worded description of the scope of the representation, fees, terms, and explanation of charges for costs
CONFLICTS OF INTEREST?!?
Closing the file - OK to archive electronically; keep file a “reasonable” amount of time. Return originals to clients.
