Articles Posted in Criminal Procedure

Published on:

In Florida, the process for a person getting out on bond while a criminal case is pending is usually fairly standard.  If the police officer obtains an arrest warrant to arrest a suspect based on a prior crime, the judge who signs the arrest warrant will normally also place a bond amount on that warrant.  After the arrest, if the defendant can make that bond, then he/she will be released pending the resolution of the case.  When the police arrest someone immediately after an alleged crime was committed without an arrest warrant, that defendant will normally see a judge the next day.  That judge will set a bond for the defendant then at what is called a first appearance hearing.  The defendant can then be released if he/she can make the bond.

The general rule is that anyone who was arrested has a right to a reasonable bond, and if he/she can make that bond, either by paying the full amount or by paying 10% or so to a bonding company, that person can be released from jail.  There is an exception to this general rule that can delay or even prevent a defendant from being released on bond even if he/she can come up with the money to pay the bond.  The state can file what is called a Nebbia motion to prevent a defendant from bonding out.  Essentially, if the state believes, regardless of whether there is any specific evidence to support this belief, that the money to be used to pay the defendant’s bail might come from illegal sources, the state can require the defendant to show that the money comes from a legitimate source.  This does not sound problematic on its face.  Defendants should not be able to use funds from illegal sources as bond money.  The problem is that a defendant is normally entitled to a reasonable bond at his/her first appearance hearing and should be released on that day if he/she can make a reasonable bond.  If the state files the Nebbia motion, many judges will not hold a hearing on that issue at the first appearance court date.  Some judges have never had such a hearing and are not comfortable conducting one when the case may ultimately go to another judge anyway.  Even if a judge is prepared and willing to hold the Nebbia hearing immediately, the defendant may need some time to get evidence and witnesses to court to prove where the bail money is coming from.  Judges do not hold these kinds of hearings every day.  If the hearing needs to be postponed for whatever reason, it could take a couple of weeks before the defendant could have a chance to prove the legitimacy of the bond money and bond out.

The bond system in Florida is already rife with injustice.  Obviously, although it is much worse than most people know, it favors people with money and severely hinders poor people.  All day, every day there are people who plead guilty to a criminal charge without seeing the evidence and without a meaningful consultation with a lawyer because they want to get out of jail quickly and can not afford to make a bond or wait several weeks for the next court date.  The Nebbia inquiry, which the state can request on a mere hunch in all sorts of different cases, adds another questionable procedural hurdle for people to be released who are innocent until proven guilty at that stage of the proceedings.

Published on:

When a person enters a guilty or no contest plea or is convicted in a criminal trial, the next step is normally for the judge to sentence the defendant.  A criminal sentence can involve incarceration, probation or both.  If a defendant is placed on probation, he/she is placed on probation for a number of months or years.  During that time, there are usually conditions the defendant must meet.  For instance, the defendant may have to complete community service hours, take certain classes, complete a rehabilitation program and so on.  One condition that is required among all people on probation is that he/she must not commit any new crimes. If a person violates one or more of these conditions, that person will likely be arrested and will face a violation of probation charge.

There are two characteristics of a violation of probation charge in Florida that make it more difficult for defendants than regular criminal charges.  One, the case is decided by the judge rather than a jury.  There is no right to a jury trial for violation of probation charges.  Two, the standard is much lower.  For new criminal cases, the state must prove guilt beyond a reasonable doubt.  There is no way to quantify this standard, but it is supposed to be a pretty high burden, at least in theory.  For violations of probation, the standard is a preponderance of the evidence, which means more likely than not, or greater than 50%.  This is universally considered a low standard.

One intricacy that sometimes comes into play with people on probation is a situation where the probationer gets arrested on a new charge, and for whatever reason, the state does not feel like they can prove the case to a jury beyond a reasonable doubt.  However, they do proceed with a violation of probation case based on that alleged crime since the standard is lower and a judge decides.  This most often happens in domestic battery cases.  The state may have a hard time proving the new domestic battery charge to a jury because the police often do not collect much evidence or do any investigation at the scene upon arrest and alleged victims often change their stories or refuse to cooperate.  However, judges are fully aware of the difficulties in proving domestic battery cases when victims refuse to cooperate, and they know a dropped domestic battery charge does not necessarily mean the suspect is not guilty.  Sometimes it does; sometimes it doesn’t.  The state dropping a case and the defendant being innocent are not necessarily the same thing under the law.

Published on:

Most people are aware of the Florida Stand Your Ground law as it received a lot of notoriety during the George Zimmerman case and other cases in Florida since then.  Essentially, the law says that people in Florida are not required to retreat and can use deadly force if he/she reasonably believes it is necessary to prevent the other person from committing an imminent act that is likely to cause death or serious injury to him/herself or another person. It is basically a self defense law that allows a person to use deadly force if the person legitimately thinks the other person is going to do something very bad to him/her.  The law provides some procedural benefits to a defendant who can utilize the Stand Your Ground law.

One question is whether police officers can use the Stand Your Ground law like regular people can.  In a recent murder case near Jacksonville, Florida, a police officer was charged with murder after shooting someone he claimed he thought had a weapon and was pointing it at him.  The police officer was responding to a suspicious person call and saw the suspect walking in a neighborhood with what appeared to be a rifle.  He followed the suspect and ultimately told him to drop the alleged rifle. The suspect did not drop it and pointed it at the police officer, according to the officer.  The police officer then shot him and killed him.

The criminal defense lawyer filed a motion to dismiss the charges based on the Florida Stand Your Ground law.  The criminal defense attorney argued the police officer reasonably believed the suspect had a weapon and was going to fire it at the officer, and he shot the officer in self defense.  The state objected and argued that a police officer does not have the right to assert the Stand Your Ground law because there is a Florida statute that specifically addresses when a police officer may use force when effecting an arrest.  Because there is already a statute on this issuing specifically dealing with police officers are arrests, that law applies rather than the Stand Your Ground law which applies to people generally.

Published on:

In Florida, and likely in all of the other states as well, it is illegal for a person to prevent another from reporting a crime or otherwise providing information about criminal activity to the police or in court.  This is part of a more inclusive statute dealing with witness tampering.  The Florida law makes it illegal for a person to use force, intimidation or threats to cause another person to avoid testifying or providing evidence in a case, damage or alter evidence, avoid a subpoena or testify falsely.  It is also illegal to hinder a person from reporting a crime.  This is a felony crime in Florida, and it becomes a more serious felony the more serious the underlying issue is.  For instance, a person can be charged with a life felony of tampering with a witness if the person is obstructing a witness relating to certain serious first degree felony crimes.

This situation can come up in almost any case, but it comes up more frequently in domestic violence cases.  Since the parties know each other in domestic battery cases, the dynamic is one where it is more likely that the suspect will takes steps to try and prevent the victim from calling the police, giving a statement to the state or coming to court to testify.  If force, threats or intimidation are used, this could be a separate crime.

A person can be guilty of tampering with a witness even if the witness or victim has not taken any steps to contact the police or report a crime.  In a recent case near Jacksonville, Florida, the defendant was being abusive to his daughter.  The kid’s mother and sister observed the incident.  After some yelling, the defendant took the cell phones from the older sister and mother and broke one of them.  He kept the other.  He told them they could not call the police on him for his abuse.  No one had attempted to call the police and report the abuse before the defendant took the cell phones.  The defendant was charged with tampering with the two witnesses for preventing them from calling the police.

Published on:

As most people know, when a person is arrested or otherwise taken into custody, they have certain rights about which the police must inform that suspect.  That person has a right to remain silent and consult a lawyer without ever speaking to the police.  People always have this right, but it is only once they are in some sort of custody and under interrogation when the police must inform the suspect of those rights before moving forward with an interrogation.

Few things damage a suspect’s criminal case more than speaking to police, particularly in the early stages of the case when the suspect does not know all of the details and the police have much more information about the case.  It is almost always more beneficial for a suspect to remain silent at this point.

When the police want to get a statement from a suspect, it is normally because the police feel like they can make their case against the suspect stronger with the statements the suspect makes.  In almost every situation, the police are correct.  So, when deciding whether to speak to the police at an early stage with limited information, it is important to understand the police are seeking a statement for a reason and that reason is not favorable to the suspect.

Published on:

While it is one of the more misunderstood amendments, just about everyone has some familiarity with the First Amendment.  The First Amendment covers a few general areas, but most people recognize it as giving people a right to free speech.  One area where it is commonly misunderstood is when speech has negative consequences in the private sector, i.e. a person loses a job or a company gets boycotted based on speech.  The First Amendment does not apply in these contexts.  Private companies and private citizens can punish people or take action based on someone else’s speech.  The First Amendment does apply to the government.  In other words, the government, or any subdivision, department or employee thereof, is restricted in actions it can take based on the speech of a person.  As a general matter, the police cannot arrest a person based on speech.  The government cannot generally make laws prohibiting speech.  Of course, there are exceptions.  Some speech is not protected.  Specific threats of violence or plans to commit crimes are not necessarily protected under the First Amendment, and the government can take action in certain of those situations.

Another area where the First Amendment may have limitations is in regard to criminal cases.  The police, the prosecutor, the other lawyers, the judge and other parties involved in a criminal trial do not have free reign to say anything publicly about a pending criminal case, particularly a criminal case that is in the news.  Like every other right, the First Amendment right to free speech can be limited if it conflicts with another Constitutional right.  In the case of a criminal trial, that conflicting right may be the Sixth Amendment right to a fair trial and an impartial jury.  If comments by the police or the prosecution might improperly persuade the jury, or a potential jury, the judge might issue what is called a gag order.  Of course, this goes both ways.  The defendant has a right to a fair trial and an impartial jury, but the defense attorney cannot make statements outside of court that might improperly persuade the potential jury towards his/her side either.

A gag order is an order from the judge preventing the attorneys and perhaps others involved in a case from making statements outside of court about the case.  A gag order will normally prevent the affected parties from talking about the facts of the case, the various theories, the legal issues, sentencing issues and other matters that might influence jurors.  Gag orders are rare because people generally have a right to talk about whatever they want.  But, if one side can show that statements from the other side are likely to impact the right to a fair trial, the judge may issue an order limiting statements.  If the judge does so, that order needs to be as specific and limited as possible so it is only designed to restrict statements and topics that are likely to affect a fair trial and influence a jury.

Published on:

When a person is arrested for a new criminal charge in Florida, that person is entitled to a hearing to have a reasonable bond set for the case.  Not everyone will get a bond.  For instance, some charges are so serious that a judge might set no bond for a person.  A person’s criminal history, ties to the community and other factors help determine what a reasonable bond should be for each case.  Once a bond is set, the person can either pay the full bond amount to the jail or go to a bonding company and pay a fee (usually 10% of the bond amount) to be released from jail while the case is pending.  As long as the person does not flee the jurisdiction and attends the required court dates, the person who put up the bond will get the money back at the end of the case (although sometimes the clerk will take out fines and costs if they are ordered as part of a sentence).

The rules are different for violation of probation cases.  People with new cases have certain due process rights that allow those defendants to take positions and have hearings on issues related to probable cause for arrests and bonds.  However, people who are on probation at the time of a new arrest do not have all of the same protections.  For instance, if a person is on probation and is arrested for a new case, that person’s bond may be revoked based solely on that new arrest.  The new arrest must be a “qualifying offense” under the Florida statute (generally any serious felony offense), but only the arrest is necessary for a revocation of the bond.  Of course, an arrest is not evidence of guilt and everyone is innocent until proven guilty at that point.  However, because people on probation in Florida do not have the same rights as others, an arrest for many felony crimes is all it takes for a prosecutor to file a motion to revoke bond and a judge to grant it.

Practically, it is a very bad idea to get arrested while on probation. Some judges will revoke a person’s bond based on just about any new arrest while on probation.  Additionally, not only will the person have a new case to deal with, but will have a separate probation violation case.  The new case has a higher standard of proof the state must meet- beyond a reasonable doubt.  However, the probation violation case has a much lower standard- preponderance of the evidence, which basically means more likely than not.  Prosecutors know that a new case may be weak from an evidentiary standpoint, but if the person is on probation, the state is much more likely to win at a probation violation hearing in front of a judge rather than a trial in front of a jury.  This gives the state a lot of leverage, even with weaker new cases.

Published on:

In Florida and elsewhere, when a suspect is arrested, he/she has a constitutional right to remain silent and consult a lawyer before making any statements or making any important decisions about the case.  In fact, for just about every defendant in a criminal case, this is exactly what a suspect or defendant should do.  It is exceedingly rare for a person to make a statement to the police at that early stage, with such limited information and without the advice of a criminal defense lawyer, and it doesn’t do anything but hurt the defendant’s case.

As part of this right to remain silent and consult a criminal defense attorney, the police are required to read the Miranda warnings to a suspect who is in custody before any request to speak with him/her about the case.  These warnings inform the suspect that he/she has a right to remain silent and a right to a criminal defense lawyer.  If the suspect invokes those rights, the police cannot question the suspect about the case.

However, even when a suspect exercises his/her right to remain silent and requests a criminal defense attorney, the police can still ask certain questions about the suspect as part of the arrest and booking process.  The police are still permitted to ask biographical and routine booking questions.  For example, when the police arrest someone, they fill out reports and enter the suspect’s information into their system.  They can ask questions relating to physical characteristics, age, address, date of birth, place of employment and similar identifying characteristics.  The police cannot ask questions that are designed to elicit information about the case.

Published on:

Whether through books or TV shows or movies, most people in Florida have heard the Miranda warnings and understand that the police are supposed to read them to a suspect after he/she has been arrested.  It is important that the police inform people of their constitutional rights upon their arrest.  Of course, this includes the right to always remain silent when police want to ask questions or take a statement and the right to consult with a lawyer before a suspect makes any statement or makes any decisions about his/her case.

However, the police do not have to read a person the Miranda warnings in every encounter they have with suspects.  The general rule is that the police are required to read Miranda warnings before any custodial interrogation.  In other words, a suspect has to be in custody to trigger this requirement.  Custody is generally defined as a situation where the suspect is not free to leave.  Obviously, if a person is being handcuffed and arrested, he/she is in custody.  However, it is less clear when the police confront a suspect to ask questions or bring the suspect to the police department to ask questions.  The other requirement is that the police are conducting an interrogation.  If the police approach a person and the person starts making statements on his/her own, that is obviously not a custodial interrogation that requires Miranda warnings.  If a suspect voluntarily goes to the police station and starts talking to the police, that likely is not a custodial interrogation either.  However, if any force or involuntary confinement is used and/or it is clear that the suspect cannot just stop and leave, that would be a custodial interrogation.

It is important to note that, whether an encounter with police is a custodial interrogation or obviously a consensual and casual interaction or something in between that is not so clear, a suspect or defendant always has the right to remain silent and request a lawyer before anything critical to the case happens.  And in just about every situation, that is exactly what a suspect or defendant should do.  Many, many cases get a whole lot worse for suspects and defendants when they make the decision to talk to the police without knowing all of the facts and issues about their case.

Published on:

After a person is convicted of a crime in Florida, whether as a result of a guilty or no contest plea or a jury trial, it is up to the judge to determine the defendant’s sentence.  Of course, if the criminal defense lawyer and the prosecutor work out a deal as part of a guilty or no contest plea, the judge still has to agree to accept the deal, but judges will normally go along with a deal worked out by the two sides.  Minimum mandatory penalties for some crimes in Florida can limit a judge’s discretion in sentencing.  However, if a defendant enters a plea without a deal with the state or a person is found guilty at a trial, the judge will usually be the one to decide the defendant’s sentence without any limitations.

The sentence in such cases is usually determined at a sentencing hearing.  This is a hearing at which both sides can present witnesses, evidence and arguments to convince the judge to sentence the defendant as they see fit.  The parties can present a wide variety of information in aggravation or in mitigation to convince the judge of their position.  The judge is permitted to consider many different facts and opinions when determining a defendant’s sentence.

However, some facts are not appropriate for consideration at sentencing.  It is not uncommon for a sentencing hearing to take place several weeks, or even months, after a defendant enters a guilty or no contest plea or loses a trial.  Events that occur in between can be considered by the judge, for better or worse.  Examples of positive developments in between a plea and sentencing might be that the defendant obtained a new job or started a rehabilitation program.  On the other hand, if a defendant fails to appear at his/her sentencing hearing, that will almost always result in a higher sentence once the defendant is arrested on a warrant.