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BASIC CRIMINAL LAWOverview of a criminal casePresented by:Joe BodifordBoard Certified Criminal Trial om

THEFLORIDACRIMINALPROCESSSource: http://www.fsu.edu/ crimdo/cj-flowchart.html

ARRESTAdvise clientNOT TO TALK TOANYONE,and inquire about anystatements already given(and whether Miranda rightsread). In order to be arrested, there must bewhat's called "probable cause." Thismeans that there must be a reasonablebelief that a crime was committed andthe person to be arrested committed thecrime. An arrest warrant is notnecessary. Once placed under arrest, two importantconstitutional rights apply: the right toremain silent and the right to have anattorney. After an arrest, the defendantis not required to say anything else topolice or investigators, until an attorneyis present. The accused must be giventhe opportunity to contact an attorney.

CALL THE CRABMAN TO GET ME OUT . . .

FIRST APPEARANCE Once arrested, the defendant will appearbefore a judge within 24 hours of arrest. The judge will then advise the defendant of thecharge(s) for which he or she has beenarrested. The judge will then decide if the police had asufficient legal basis for the arrest (make aprobable cause determination). It is importantto attack the sufficiency of the probable causestatement as a way to get the client released orbond lowered.The judge will then decide if pretrial release (bail) is appropriatein the case, and if so, how much.IT IS IMPORTANT TO BE AT THIS HEARING IF AT ALLPOSSIBLE.

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 apenalty of either life imprisonment or death) or facing a violation of probation. Under theFlorida Rules of Criminal Procedure non-monetary conditions of release are specificallypreferred; 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 thedefendant has been allowed out on bail before and appeared in court when required, andwhether the defendant has a criminal record. If the court finds that the charge is not a serious or substantial, or that the defendant willappear in court when required, the judge has the option of releasing the defendant withoutposting bail (release on own recognizance, or ROR). If the judge imposes bail in an amount that the defendant cannot afford, a motion to reducebail may be appropriate. However, there is not a right to multiple bond hearings unless thereare 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 bepresented. The purpose of an arraignment is for the defendant to beinformed of the charges against him or her, and for the defendant to enter aplea. A retained attorney may enter a plea of not guilty on the defendant’s behalfand waive his or her appearance. The case will then be given pre-trial and trial dates. (*NOTE: some judgeswill set the case for trial if you are not present; others and some prosecutorswill want a waiver of speedy trial if it is not set for trial directly fromarraignment.)

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 thebeginning 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 lessercharge, the judge will ask the defendant questions in order to confirm that thedefendant knows what he or she is accused of, that he or she understands thepenalties, and that no one is forcing the defendant to enter the plea. This process isknown 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 judgeis not required to accept the agreement. In the case where the court refuses toaccept the plea, a decision has to be made to renegotiate an agreement acceptableto the judge, proceed to trial, or enter an “open” plea as charged (where there is noagreement 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 makefull 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 “byambush”). Certain actions will trigger the discovery process, such as a public records request. Carefully consider all witnesses and evidence, and disclose everything in a timelymanner. 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 beheld within a certain time frame after a person has been charged with acrime. This right can be waived by asking for additional time for the preparation ofthe defense. Speedy trial rights in Florida:«Speedy trial without demand: In most cases, a defendant will be brought to trialwithin 90 days of arrest if the crime is a misdemeanor, and within 175 days ofarrest if the crime charged was a felony.«Speedy trial with demand: With limited exceptions, every person charged with acrime has the right to demand a trial within 60 days.

ALTERNATIVES TO ENTERING A PLEA Pretrial Diversion« Pretrial Intervention« Pretrial Diversion is a diversionary program run by the State Attorney's Office and is usually reserved forfirst time, nonviolent offenders. The diversion program is similar to probation, in that once acceptedinto the program, the defendant must report once a month to a supervising officer, undergo randomdrug 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 Intervention is similar to Pretrial Diversion; however, it is run by the Court. The PretrialIntervention program is also similar to probation, in that once accepted into the program, the defendantmust report to the Court on a regular basis, be evaluated for and undergo any recommended drugtreatment, complete any other specific requirements ordered by the Court, and refrain from beinginvolved in any criminal activity. The charges will be dropped upon successful completion of PretrialIntervention.Drug Court«Drug 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 substanceabusing offenders in order to avoid entering the formal criminal justice system. The Drug Court Judgereviews progress reports on each participant. Incidents of noncompliance are reported immediately tothe Drug Court Judge, along with recommendations as to consequences to be imposed. Uponsuccessful completion of Drug Court the charges will be dropped.

THE TRIAL Jury trial or bench trial?Jury Selection (Voir Dire)Sequestration of the WitnessesClose of the State's Case:« Once the State has called all the witnesses it believes necessary toprove 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 tomake a sufficient showing to allow the specific charge to go to the jury.This motion is rarely granted, however, counsel must fully argue thefacts 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 usuallyconsidered less serious crimes than felony offenses.Second Degree Misdemeanor: A second-degree misdemeanor is a crime punishable by no morethan 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 oneyear in jail, one-year probation, and a 1,000 fine.Felony Offenses - Felony offenses are handled by the circuit court and are punishable by thepossibility of more than one-year imprisonment. Felony offenses are sentenced pursuant toFlorida's criminal punishment code ("CPC"). Under the CPC,each felony is scored a specificamount of points. The higher the level a felony is designated, the more points that willappear on the CPC scoresheet. A score of more than 44 points will subject the defendant toa minimum term of imprisonment. If the score is less than 44 points, a judge is not requiredto 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 yearsprobation, and a 5,000 fine.Second Degree Felony: A second-degree felony is punishable by up to fifteen years in prison, fifteenyears probation, and a 10,000 fine.First Degree Felony: A first-degree felony is punishable by up to thirty years in prison, thirty yearsprobation, and a 10,000 fine.Life Felony: A life felony is punishable by life in prison without the possibility of parole, or probation forlife, 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 InvestigationUpon entry of a plea of guilty or nolo contendere, or a finding of guilt after afelony trial, the judge may postpone sentencing and order a pre-sentenceinvestigation (PSI) for a first-time felony offender. The PSI informs the judge ofthe defendant’s background, and helps the judge decide the sentence. Aprobation officer will question the defendant and may question members of thedefendant’s family, friends, witnesses in the case, and even both attorneys inorder to make this report to the judge. The PSI includes the cause andcircumstances of the crime, the defendant’s prior criminal record, if any, andbackground about the defendant’s family, education, employment and health. Ifprobation is a possibility, the PSI will include information about the defendant’splans for the future. IncarcerationProbationCommunity Control (or “jail at home”)

APPEALS If a defendant is convicted and wants to appeal, or has pleadafter losing a dispositive motion, he or she must do so within30 days after sentencing. There is usually no point to an appeal from a plea of guilty ornolo contendere if the sentence imposed was legal. However,the right to an appeal exists and a notice of appeal must befiled if the defendant wants to appeal. If the case is appealed, the trial judge may allow the defendantrelease on bail until a final decision is reached by the appellatecourt.