Guide Map to a Criminal Case
1. ARREST – (a) Probable Cause Affidavit – an arrest for a criminal case in the State of Florida can occur in several manners. A Law Enforcement Officer can prepare or have prepared at his direction, an affidavit which sets forth the facts and circumstances which the officer believes constitutes probable cause for the arrest of an individual. The Officer signs and swears to the affidavit and thereafter the Officer can use solely this affidavit to effect the arrest and detention of the individual into a jail or detention center. (b) Warrant -any police officer or other Law Enforcement Agency can after completing a preliminary investigation determine that an arrest should be made. However, instead of preparing a Probable Cause Affidavit only, the investigating officer can refer the matter to the State Attorneys’ Office, for prosecution. If after review of the Probable Cause Affidavit prepared by the investigating officer, a prosecutor in the State Attorneys’ Office believes there is in fact probable cause for an arrest, a charge will be filed against the individual, and upon that filing, a judge will issue a Warrant for the Defendant based on the filed charge. (c) Misdemeanor – usually, an individual cannot be arrested for committing a misdemeanor unless the officer actually observes the crime being committed. There are some very notable exceptions to this rule, ie. domestic batteries, and retail theft. Most MISDEMEANORS arrests are made through the use of a Notice to Appear, which is an actual charging document in misdemeanor cases. The Notice to Appear can look much like a traffic citation, but requires a brief factual statement from the arresting officer to be effective. Additionally, if the investigation had been referred to the State Attorneys’ Office for review, the State Attorneys’ Office can file a misdemeanor complaint charge against the individual, and thereafter if the individual is a County resident, a Summons will be issued and served upon the Defendant for his or her appearance in Court. A failure to comply with the Summons, will result in a Warrant being issued for the arrest of the individual for failing to appear for the scheduled Court appearance.
2. FIRST APPEARANCE – if a person is arrested and either can not make the bail which is set, or a no bond situation exists due to the nature of the charge, the individual is taken before a judge within approximately twenty-four (24) hours of their arrest. These first appearance hearings are scheduled to allow a judge to review the probable cause for the arrest of the individual, to determine whether or not they can afford or desire counsel, and finally to set, increase, or decrease bond as maybe determined from the facts and circumstances concerning the offense. The victim, the Defendant’s family and any witnesses necessary to determine bond, along with the general public are allowed to be present during the first appearance hearings.
3. ARRAIGNMENT– approximately thirty (30) days after an individual has been arrested, an arraignment hearing is scheduled. Generally this thirty (30) day period of time is used by the prosecution to determine what if any charges will be filed against the Defendant. On the scheduled arraignment date, if charges have been filed an inquiry is made as to whether the Defendant has retained private counsel, or due to a lack of financial ability whether the Defendant requires the assistance of an appointed lawyer. Thereafter, the Defendant is asked to enter a plea of guilty, not guilty, or no contest to the charges filed. In a number of cases the prosecution has not filed the charge within this thirty (30) day period, and the arraignment may be continued for the filing of a formal charge. This period may be extended up to forty (40) days with good cause shown by the prosecution. If after the appropriate time period no charges are filed, the Defendant is released on his or her own recognizance (promise to appear) with any other bond or surety being discharged.
4. BOND – if a bond was set at first appearances and the Defendant is unable to meet that bond, or if no bond was set, the Defendant can make an application to reduce or set bond in front of the specific judge who will handle the trial of the Defendant’s cause. Generally the applications for bail/bond which are made at first appearance are cursory in nature and rarely supply the judge hearing the matter with a thorough review of all matters which may affect the Defendants bond status. The bond of any individual can be seriously affected by either the increase or decrease in the charges upon which the Defendant was originally arrested, and the ability of the Defendant to obtain documentary evidence which was unavailable to him at first appearance, or reliable information that the facts contained in the Probable Cause Affidavit are incorrect.
5. DISCOVERY – after Arraignment and within fifteen (15) days of the Defendant requesting discovery, the prosecution is required to provide to the Defendant or his counsel information which will be used by the prosecution to prosecute the Defendant. This information will include witness statements, police reports or excerpts from police reports, expert witness reports, copies of taped statements, video taping, wire taping, and a witness list including the names and addresses of anyone who the prosecution may call as a witness. The Defendant has a like responsibility to supply the prosecution with names of any witnesses, a list of exhibits, or any other information which will be used at trial.
6. CASE DISPOSITIONS/STATUS CONFERENCES – most trial judges require that within approximately thirty (30) to forty-five (45) days after Arraignment that the Defendant, counsel, and the prosecutor appear in court for a preliminary discussion of the case against the Defendant. The purpose of the hearing is to determine whether or not discovery has been supplied, whether there are any conflicts are problems which may develop in the case upon which the Court may need to make rulings, and additionally to determine whether or not the case will actually go to trial or be settled in some manner. If the case is not resolved and the case appears ready for trial, a trial date will be scheduled.
7. MOTIONS – both counsel for the prosecution and defense may during the course of the pending case request the court to take actions concerning how the case may be tried. The defense may attempt to determine if certain evidence was illegally obtained and therefore not allowed to be used against the Defendant, and the prosecution at times may need court approval to obtain the attendance of various witnesses, protect vulnerable witnesses or victims, or any thing else necessary to proceed to trial.
8. CALENDAR CALL – while some judges give specific dates for trials, most judges schedule Defendants for what is termed a Calendar Call. At this proceeding, numerous Defendants appear, with various types of criminal cases. If the cases are not resolved by plea or settlement, and a continuance is not granted, the cases are usually scheduled for actual trial during a docket period which can last from one (1) to eight (8) weeks. Generally a Defendant is not given a specific date for trial, but is placed on a call status. In essence the Defendant and his counsel are required during the trial period to be available for trial within several hours of the court calling the matter for trial or final hearing.
The aforementioned are the typical terms used throughout the State of Florida, but depending on what Judicial Circuit a case is tried, the courts may have different settings with slightly different names. However the basic procedure will flow as indicated above regardless of what any particular circuit may title the scheduled court hearings.
The Federal system is similar to the State court system, however there are a number of significant differences.
1. BOND – under the State Courts of Florida it is presumed that with the exception of cases involving Capital and Life Felonies, that a Defendant should be admitted to an appropriate form of pre-trial release which will act to secure the Defendant’s attendance at future court proceedings. However, there are a number of legal assumptions in Federal Court whereby it is presumed that a Defendant is not entitled to bond. These cases would involve violent offenders, a significant number of drug offenses, and individuals who by the mere nature of the charge are designated flight or bond risks.
2. DISCOVERY – Federal Courts do no allow the taking of depositions unless it is necessary to perpetuate the testimony of some one who may not be able to appear in court. There are other exceptions, but generally depositions by the defense are not allowed. Defendants have no ability to obtain statements from witnesses for the government, unless the witness willingly submits to an interview, or otherwise desires to speak with the defense. This is significant in that agents from various Federal Agencies or municipal Police Officers who must submit to depositions in State Court are not required to do so in Federal Court. While statements from these Officers and Agents may sometimes be obtained through various Court Hearings, the Defendant in a Federal Criminal Trial is at a distinct disadvantage from the outset. There is no witness list required to be provided by the prosecution, until the witness is called at trial, prior statements are not available. The Federal Courts have local rules which assist in the development of discovery for the defense, but such discovery is paltry in comparison to those discovery rights obtained by a Defendant in State Court.
3. PENALTIES – while it appears that many State courts are aspiring to follow the lead of the Federal Courts, the penalties involved for most Federal crimes are significant, require prison time, require minimum sentences, and effectively punish a Defendant for going to trial and not immediately admitting responsibility or conceding issues alleged by the prosecution. If in fact you are guilty of the crimes charged this may seem to be an excellent tactic of the prosecution to obtain guilty pleas, but if you are not guilty or had minimal involvement in a criminal episode you can suffer severe consequences if you can not establish your lack of guilt or culpability.
4. COSTS – because of the significant differences between Federal and State Courts, and the complexity of most Federal cases, the costs involved in Federal litigation are dramatically different and impose a heavy burden on any Defendant.