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Criminal Defense FAQ

What is criminal law?

Criminal law is the body of law defining offenses against the community at large, regulating how suspects are investigated, charged, and tried, and establishing punishments for convicted offenders. (Black’s Law Dictionary). Accordingly, the area of criminal law involves a wide range of cases from DUI to fraud and from drug trafficking to murder.

If I am arrested, should I talk to law enforcement?

If law enforcement suspects that you have committed a criminal offense, they may arrest you. Whether you have been arrested by law enforcement or whether they merely wish to speak with you regarding your possible involvement in alleged illegal activity, DO NOT SPEAK WITH LAW ENFORCEMENT without the presence of a qualified criminal defense attorney.

What happens after my arrest?

Depending on the crime for which you were arrested, you may be able to post bail shortly after you are booked in the county jail. However, in some situations you will have to wait for the “First Appearance” which must occur within 24 hours after your arrest. During the first appearance (often closed circuit television from the jail), a judge will inform you of the charges against you, and inform you of certain rights that you have. The judge will also determine whether or not you are entitled to bail, the amount of the bond and the conditions of bail.

Will I get out bail?

You may or may not get out on bail, depending on your situation. However, the Florida Constitution and other Florida laws state that every person charged with a crime is entitled to pretrial release on reasonable conditions unless the person is charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great. However, if no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.

It is entirely within the judge’s discretion whether or not to grant bail to a criminal defendant. The primary factors the judge must consider when deciding whether or not to grant bail are:

  • Whether or not the defendant is a flight risk
  • Whether or not the defendant poses a risk of physical harm to the community

Although judges have discretion to grant pretrial release in most all situations, they often times refuse to exercise that discretion when a person is arrested for a new law violation while on probation.

Who determines whether or not formal charges are filed and which charges are filed?

Each county in Florida has an elected state attorney, whose office will determine whether or not criminal charges are filed in any given case. Usually, the various state attorneys will assign one or more assistant state attorneys to an “intake” department where police reports and other documents will be be reviewed to determine whether or not formal charges are filed. Therefore, it is possible to be arrested by law enforcement, and for your case to end there.

To file formal charges against an individual in Florida, the state attorney’s office for the county in which the alleged crime took place must either seek an “indictment” or file an “information”. Once the prosecutor has filed the indictment or information, the case against the defendant will proceed forward.

Indictment

An indictment is formal charging document that is issued by a grand jury. In order to seek an indictment, the state attorney’s office must convene a grand jury made up of 15-21 individuals residing in the defendant’s community. Once the grand jury has been convened, the prosecutor will present evidence to the grand jury, and if the grand jury believes that the evidence presented establishes probable cause that the crime charged has been committed by the person charged, then the grand jury will return an indictment against that person. A defense attorney is not permitted in the grand jury room, and will take no part in the indictment. If an indictment is returned by the grand jury, then the prosecutor may still file formal charges through an information if the crime charged is not punishable by death. If the grand jury does return an indictment, then that indictment is filed with the clerk, and evidences the filing of formal charges.

Information

An information is a formal charging document stating the defendant’s name, the statute(s) under which they are being charged, the alleged acts of the defendant which constitute the charge, and the approximate date and location of the alleged crime(s). Any crime, except crimes punishable by death, may be charged by filing an information. When this document is filed with the clerk of the court, formal charges have been filed against you.

What is a misdemeanor?

A misdemeanor is a category of criminal offenses that is less serious than crimes which are categorized as felonies. By definition, a misdemeanor is any criminal offense that is punishable by a term of imprisonment in a county correctional facility not in excess of 1 year. However, a misdemeanor does not include any noncriminal traffic violation or any violation of municipal or county ordinances.

There are different levels or degrees of misdemeanors, each with a different range of possible punishments. Most often (especially if it is a person’s first criminal first offense), the punishment for a misdemeanor conviction is probation or some other sanction short of incarceration. However, sentencing and punishment is within the judge’s discretion, and a jail sentence is possible if a person is convicted of a crime that is a misdemeanor.

If a person is convicted of a crime that is a first degree misdemeanor, then that person shall not be incarcerated for more than 1 year in the county jail. A jail sentence may not be likely depending on the situation, however, it is within the judge’s discretion to sentence a person up to a year after being convicted of a crime constituting a first degree misdemeanor.

What is a felony?

A felony is a category of criminal offenses that is more serious than crimes that are categorized as misdemeanors. By definition, a felony is any criminal offense that is punishable by death or imprisonment in a state (or federal) penitentiary. A felony arrest or conviction can have serious consequences that may follow you around for the rest of your life.

There are different levels or degrees of felonies, each with a different range of possible punishments. The punishment for a felony conviction can be probation or some other sanction short of incarceration, depending on the crime. However, sentencing and punishment is within the judge’s discretion, and a long prison sentence is possible if a person is convicted of a crime that is a felony. Furthermore, certain enumerated crimes have a mandatory minimum, meaning the judge must sentence you the minimum required by law for that specific crime

How will my case end?

Once you have been formally charged with a crime, your case will end in one of five ways:

(1) by the state attorney’s office dropping the charges, referred to as “nolle prosequi”;

(2) by the judge dismissing the charges based on insufficient evidence or some other legal defect in the case

(3) by a plea deal negotiated between the state attorney’s office and the defense attorney;

(4) by an “open plea” of guilty or no contest to the judge; or

(5) by a jury verdict.

Can I get my criminal history information sealed or expunged?

Having your criminal history information sealed or expunged can prevent embarrassment or rejection that may occur when applying for a job, an apartment, or when you are otherwise required to disclose details about your past. If you records are sealed or expunged, you are not required disclose the arrest or other criminal history information except in limited situations, usually only when dealing with certain governmental entities.

In some circumstances, it is possible to have your records sealed or expunged, meaning that the public will not have access to the official records regarding your arrest or charges.

Sealing: A record of arrest or criminal charges can be sealed if there was no conviction, and most commonly is appropriate after someone has been found not guilty or if adjudication has been withheld. When criminal history information is sealed, the public will not have access to the records; only certain government entities will have access to the information. After a record has been sealed for 10 years, then it may be eligible for expunction.

Expunction: A record of arrest or criminal charges may be expunged if the charges were dropped (Nolle Prosequi) or if formal charges were never filed. When criminal history information is expunged, the public will not have access to the information, and the government entities that would have access to the information if sealed will only have access to the expunged information by court order.

Do I need a lawyer?

When a person has been arrested and/or charged with a criminal offense, the person’s liberty and even their life may be in jeopardy. It is very important for you to hire a knowledgeable, experienced and aggressive criminal defense trial lawyer with a proven jury trial record. It is also very important that you contact an experienced trial lawyer as soon after an arrest as possible. If you wait, you could be in jeopardy or losing or forfeiting valuable legal rights.

 

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    206 Mason Street
    Brandon, Florida 33511
    Phone: 813-681-4246
    Fax: 813-653-9668