Orlando Criminal Defense Attorney - Law Office of Adam L. Pollack, P.A. - DUI - Criminal - Divorce - Paternity

COMMISSION OF THE CRIME

Felony - is a crime punishable by one year or more in State Prison. Felony cases begin in lower courts and then can be bound over to Superior Court if the judge determines that probable cause exists that the defendant being accused has committed the crime in question.

Misdemeanor - is a crime punishable by up to a year in county jail. Misdemeanors are usually handled in lower courts and never go to Superior Court.

RETAINING AN ATTORNEY

A defendant may retain an attorney at any stage of their case, whether it is during the investigation or the night before their arraignment.

Criminal defendants have the right to an attorney and will be appointed one (Public Defender) if they cannot afford one. However, criminal defendants may be responsible for paying the costs of the Public Defender if it is later determined that they had enough money to pay for an attorney.

PRE-ARREST INVESTIGATIONS

Pre-arrest investigations are done after the defendant has been contacted by a law enforcement agency, however charges have not been filed yet and the defendant has not been arrested.

This is the best time to hire an attorney to take control and defend the case. During this stage, your attorney can attempt to do the following:

Prevent filing of charges.
Reduce charges.
Assist with surrender and avoid arrest.
Divert allegations into an informal resolution.

ARREST

Felonies - Police must have PROBABLE CAUSE to make an arrest, which may be conceptualized as a "good reason" to arrest.

Misdemeanors - Arrests can only be made for crimes that occurred while in the presence of the arresting person or with a warrant.

Miranda Warnings - Police do not have to read Miranda Warnings to everyone that is arrested. Failure to read the Miranda Warnings does not make the arrest illegal, but may be grounds to suppress certain statements or confessions.

BOOKING

When a suspect is booked the following occurs:

The suspect is taken to the law enforcement station.
They are asked a series of routine questions.
They are lawfully searched with or without consent.
The suspect is fingerprinted and photographed. All felony defendants and most misdemeanor defendants will be required to go to the station for booking.

Getting booking information:

Call the jail or prison hotline for booking information.
You will need the inmate's booking number or their date of birth and full name.
The jail or prison will release information on the charges, the court date, the arresting agency and the bail amount.

POST-ARREST INVESTIGATIONS

Post-arrest investigations are done after the arrest, but before charges have been filed by the prosecutor.

It is not required that the arresting agency release the police report before the defendant goes to court. However, sometimes your attorney can talk the police into releasing the report.

DECISION TO CHARGE

The following individuals can file charges:

District Attorney - The District Attorney files charges against an individual if they believe there is sufficient evidence to convict the suspect.
City Attorney - Some cities have a City Attorney's office which handles most misdemeanor cases and determines if there is sufficient evidence to convict the suspect.

In Juvenile cases, the probation department is instrumental in deciding whether or not to charge the defendant. The following individuals can not file charges:

Police do not file charges. They only make recommendations to the prosecuting attorney if charges should be filed.

FILING THE COMPLAINT

The prosecuting attorney files a document with the court to show that charges are being filed.

ARRAIGNMENT / FIRST APPEARANCE

A defendant is almost never arraigned within 24 hours of their arrest.

Except when previously released in a lawful manner, every arrested person shall be taken before a judicial officer, either in person or by electronic audiovisual device in the discretion of the court, within 24 hours of arrest. In the case of a child in the custody of juvenile authorities, against whom an information or indictment has been filed, the child shall be taken for a first appearance hearing within 24 hours of the filing of the information or indictment. In rare instances, a judge may continue the initial appearance if probable cause cannot be determined and the government asks for an additional 24 hours to convince the judge of probable cause. If the judge cannot find probable cause, then most likely you will be released on your own recognizance while the prosecutor decides whether to file formal charges against you.

You can call the booking information line at the jail or the arresting agency to find out your arraignment date.

At the initial appearance, the defendant will be read their rights and the charges against them.

BAIL is set during the initial appearance. Bail is an "insurance policy" that the defendant will appear before the court again. The amount of bail is determined by the seriousness of the offense and by the Judge. Bail can be $0 if the person is released "on their own recognizance (R.O.R.)", but it can be increased if the Judge feels that the defendant will not appear in court again. If the person fails to appear before the court, a warrant will be issued for their arrest. In some instances, a defendant may not be entitled to bail.

During the arraignment or any proceeding in front of the court, the attorney can bring a motion to reduce bail. The judge decides whether to reduce bail and will consider the client's risk of flight and danger to the public.

DISCOVERY is sometimes given to the defense attorney at the arraignment. However, the more common practice is for the government to provide discovery to the defendant’s lawyer no later than fifteen days after a request for discovery has been made. Discovery includes, but is not limited to: police reports, medical records, probation reports, photographs, diagrams and viewing of physical evidence.

Discovery in criminal cases must be reciprocal, which means that the prosecution must provide the defense with the evidence they are using in the case. Neither the prosecution nor the defense may "hide" evidence and later introduce it during the trial.

PRELIMINARY HEARING

Preliminary hearings only occur in felony offenses.

In most states, a preliminary hearing is necessary for the Judge to determine whether or not there is sufficient evidence or probable cause to support the charges against a defendant and bind the case over to Superior Court for trial.

During a preliminary hearing, the District Attorney or the Judge can add additional charges and request that the defendant back into custody even if they are already out on bail.

Preliminary hearings in Florida do not exist. However, a prosecutor may petition the court to revoke a defendant’s bond at any time prior to the defendant’s trial. This is usually only done if the defendant has not conducted themselves in accordance with their pretrial release conditions that were set by a judge at either initial appearance or a bond hearing.

FILING OF THE INFORMATION OR INDICTMENT

If the prosecuting attorney believes there is enough evidence, they will file a document with the Circuit Court which notifies that the State is "charging" the defendant with a particular crime, this is known as an Information. In Florida, there are some crimes where the prosecutor will convene a grand jury before deciding whether to file criminal charges against a defendant.

ARRAIGNMENT ON THE INFORMATION OR INDICTMENT

The defendant is taken before the Circuit Court and informed of their charges. At that time, the defendant will answer to the charges by pleading not guilty, guilty or no contest. Often times, it is not necessary if you have hired an attorney to appear for your arraignment because your lawyer can enter a written plea on your behalf.

PRE-TRIAL CONFERENCE

At the pre-trial conference, the defense attorney plea-bargains with the prosecuting attorney, which is a process when the defense attorney negotiates with the prosecution in order to obtain the best possible "deal" or plea for their client.

A "deal" might include:

The prosecution charges the defendant with a lesser charge.
The prosecution agrees to a lesser punishment for the same charge.
The number of counts may be dropped.
Alternative sentencing. Defense Attorneys may also file Pre-Trial Motions, which may assist in dismissing charges or changing the prosecution's position.

Some common motions are:

Motion to Suppress Evidence
Motion to Dismiss the Information
Motion for a Speedy Trial
Motion to Sever Counts
Motion to Compel Discovery

TRIAL

During a jury trial and after the jury is selected, both the defense attorney and the prosecuting attorney complete the following process:

Opening statements.
Direct examinations of their witnesses.
Cross examinations of the opposing witnesses.
Closing arguments. During the deliberation of the case, the jury decides the guilt or innocence of the defendant, but the judge will determine the appropriate sentence if the defendant is found guilty.

Upon a guilty verdict, a motion for New Trial might be filed with the court.

SENTENCING

Sentencing is a court hearing where the judge determines punishment.

A defendant may be sentenced to Probation instead of prison. However, he or she may be ordered to do some local custody time as a term of his or her probation. If a person violates their probation, they may be incarcerated.

Formal probation is when an individual is supervised by a probation officer.

Informal or summary probation is unsupervised. If probation is not granted, there is usually a range of permissible sentences that a judge can impose. In Florida, a person has a scoresheet which assigns them a score based upon many factors including the type of crime they were convicted of and their prior criminal record. Attorneys can argue for downward departures. A judge will make the final decision as to the appropriate sentence that a defendant will receive.

Sentencing modifications occur when part of a person's sentence becomes inapplicable to their case. For example: Suppose a man is convicted of the crime of spousal abuse, and part of his sentence includes that he must stay away from his wife. However, if the man and the wife decide to reconcile, then it would be appropriate to ask the court to "modify" the man's sentence.

Some alternatives to jail that might be negotiated are:

Detox Programs
Electronic Home Monitoring
Residential Treatment Centers
Counseling
Weekend Work Programs
Community Service

COLLATERAL CONSEQUENCES

In addition to any sentence imposed by the court, a conviction can have a number of independent consequences. On felony cases, these consequences can include, but are not limited to:

Loss of the right to vote.
Loss of the right to possess a firearm of any kind.
Loss of the right to associate with known criminals.
Registration as a sex offender.
Increased penalties for future criminal convictions.
Registration as a narcotics offender.

APPEALS

If convicted, a defendant may file an appeal.

The purpose of an appeal is to ensure that the trial court did not make any legal errors throughout the trial process. Appeals may result in the reversal of a person's trial court conviction.

PAROLE

A conditional release from prison entitles the person receiving it to serve the remainder of the term outside the prison, but technically the person will still be under the Department of Corrections.

Typical conditions of parole can include:

Periodic meetings with parole officers.
Foregoing the possession of weapons and not associating with known criminals.

EXPUNGEMENT

Expungement is a process where, in some cases, a person's conviction may be removed from their record.

An expungement cannot be done if:

the person has served time in state prison.
a person has been convicted of a crime.