Adult Case Process
Here is some general information about the stages of an Adult Case
What is First Appearance?
The purpose of the first appearance is for the Judge to:
- Advise the defendant of the charges.
- Determine if the police had probable cause to make the arrest.
- Determine whether the defendant can pay for an attorney, and, if the defendant cannot, appoint the Public Defender.
- Set conditions of pre-trial release from jail, if applicable.
At the hearing, the Judge sets conditions of release to ensure the defendant’s presence at future court hearings and to protect the community. The conditions are based on the charges, the defendant’s ties to the community, prior criminal history, and other relevant facts. It is often important for the defendant to have his family, friends, or employer speak on his behalf.
In domestic violence cases, the Judge will also issue an order that prohibits any contact between the defendant and alleged victim. If the alleged victim appears at the hearing, testifies on behalf of the defendant, and proves to the Judge that no threat of harm exists, the Judge may decide not to issue the order.
What is a pretrial hearing?
A pretrial hearing is also known as a pretrial conference. The purpose of a pretrial conference is docket management (scheduling) by the Judge. This is an opportunity for the attorneys to tell the Judge if they are ready for trial, if a continuance is needed, or if the case will resolve. In general, these conferences are short and only concern scheduling.
What is Bond?
The terms bond and bail are used interchangeably and mean the same thing in Florida.
Bond is intended to guarantee that you will appear for your scheduled court appearance. You have a very limited right to bond in capital cases and cases carrying a life sentence. Cases with limited right to bond may include murder, sexual battery, kidnaping, burglary or robbery.
To set your bond, or to lower the amount of your bond, the Judge must be convinced you will appear in court when notified to be there.
The court may ask you several questions, such as how long you have lived in the area, whether you have family in the area, whether you are working, whether you have been released on bond before and appeared in court when required, and whether or not you have a criminal record.
If the court finds your charge is not a serious crime, and you will appear when required in court, or that you have a responsible person in the community who will guarantee your appearance in court, the Judge has the option of releasing you without bond. This is called release on your own recognizance (ROR).
If you cannot make the original bond, your Assistant Public Defender may subsequently file a motion for reduction of bond if your bond amount seems too high in view of the charge, or if the evidence against you is weak.
Remember, you do not have a right to multiple bond hearings unless there are significant changes in circumstances. Not being able to make the previously set bond is not a significant change in circumstances.
What is an arraignment?
Arraignment is a court hearing at which the prosecutor announces whether the State Attorney’s Office (the State) is filing charges. If the State files charges, the judge explains to the defendant the nature of the charges and asks the person to respond to the charges by entering a plea of guilty, no contest, or not guilty. In some cases, the prosecutor may offer to divert the case from the criminal court process into a pre-trial diversion program. If the client pleads not guilty, the case is scheduled for trial.
How are formal charges filed?
The State Attorney’s Office (the State) has sole discretion to file formal criminal charges. The State may file charges even if witnesses do not want to testify against the defendant or do not want to proceed with the case.
For felonies, the charging document most commonly used is called an information. The prosecutor has 30 days from the date of arrest to file the information. However, in the 7th Circuit, nearly all defendants are set for arraignment on felony charges on the 21st day after their arrest. If the information is not filed by the 21st day, and the defendant is in custody, his defense attorney can ask the Judge to either release the defendant on his promise to appear in court or to hold an adversary preliminary hearing, which requires the State to produce evidence showing probable cause for the charges.
If the prosecution intends to file an information, it will request an extension until the 30th day for either defense request. On the 30th day, if the prosecution does not have an information, the court will order that the defendant be released on his or her own recognizance by the 33rd day, unless the state attorney files charges by that date. If the prosecution shows good cause, it can request to have the defendant remain incarcerated until the 40th day. No individual shall remain in custody for more than 40 days if no information has been filed.
Another way a person can be charged with a violation of law is by indictment, a formal document issued by a grand jury usually charging a felony punishable by the death penalty or life imprisonment. It is based upon the facts and circumstances of a case as presented to the grand jury by the prosecution.
A grand jury has broad powers to investigate a range of criminal offenses and to examine the performance of public officials and public institutions. Its deliberations are conducted in secret, in conjunction with the state attorney. After hearing evidence presented by the prosecution, the grand jury decides whether charges should be filed and, if so, what those charges should be.
What is pretrial release?
A defendant is presumed innocent until the prosecutor proves guilt beyond a reasonable doubt. At this stage in the process, the prosecutor has not proven anything and the defendant is supposed to be treated as an innocent person. Following this principle, Florida law gives the defendant the right to be released from jail prior to the trial. However, there is no right to pre-trial release in cases where the person is arrested for a “non-bondable” offense.
To determine whether the defendant should be released, the Judge may ask about the length of time the person lived in the area, whether the defendant has a job, has family members living in the area, has a past criminal record or has been released on bond previously and appeared in court as required. The Judge may release the defendant on his or her own recognizance, on monetary bond (either cash or surety bond through a bail bondsman), on monitored release (electronic monitoring device or bracelet), to the custody of a responsible member of the community, a drug program, or mental health facility.
Pretrial Detention on “non-bondable” offenses: If a person is arrested for a “non-bondable” offense, such as murder, sexual battery or kidnapping, the law presumes that the defendant will remain in jail pending trial. A person arrested for a “non-bondable” offense may have the right to request a bond hearing.
Are there programs available for first time offenders?
A client charged with his or her first offense may be eligible for participation in the Pretrial Diversion Program, which serves as an alternative to formal prosecution. In the Circuit Court (felony court), diversion is referred to as Pretrial Intervention (PTI). In the County Court (misdemeanor court), diversion is referred to as a Deferred Prosecution Agreement (DPA).
The criteria for these programs are strict, and acceptance depends on the approval of the victim, arresting officer, prosecutor and Judge. If the client agrees to enter the diversion program, the client will have to give up his right to a speedy trial and may be required to attend classes, perform community service, pay restitution or meet other conditions. Upon successful completion, the prosecutor dismisses the charges. If the client does not complete the program, the case will be returned to court for trial.
I have heard of Drug Court, what is it?
The 7th Judicial Circuit has Drug Court available to non-violent offenders with a documented history of substance abuse. Clients charged with felony possession or purchase of a controlled substance may be eligible for the Drug Court Diversion Program. Read more about the drug court program here.
How will my Assistant Public Defender prepare my case?
If the case is set for trial, the defense attorney will begin preparing by filing motions, deposing and interviewing witnesses, investigating allegations and other aspects of the case. The client has the right to assist in the preparation of his or her own defense.
One of the most significant ways a client can assist in the preparation of his defense is by providing the defense attorney with the names and addresses of witnesses not listed by the prosecution who can testify to circumstances that may prove the client is not guilty or help show that the crime is not as serious as the prosecutor suggests.
The client and his family must not contact the alleged victim or the witnesses listed by the prosecution or send other people to talk to them because the prosecutor may charge the client with an additional crime known as tampering with witnesses. It is the defense attorney’s job to speak to the witnesses and alleged victim.
The Assistant Public Defender will participate in discovery. The process by which the prosecution and the defense search for the facts of the case is called discovery. The deposition of witnesses is a discovery tool for uncovering the facts. In a deposition, the prosecutor and defense counsel are present to take the sworn statements of witnesses. Discovery depositions are very useful for both sides because it allows them to evaluate the strengths and weaknesses of the case prior to trial.
The defense attorney may speak with the prosecutor to get some idea of the prosecutor’s evaluation of the case. Depending on the strength of the defense’s case, the prosecutor may decide to dismiss all charges, offer a lesser sentence, or drop some of the charges in exchange for a plea of guilty or no contest to other charges.
What happens at a trial?
A trial is the fact-finding phase of a case and is held to determine the guilt or innocence of the defendant. It is the prosecution’s burden to prove the client’s guilt beyond a reasonable doubt. A defendant is not required to prove his innocence, present any evidence nor call or cross-examine witnesses and he or she has the right to decide whether to testify.
There are two types of trials: bench and jury.
In a bench trial, the judge decides issues of fact without a jury. In a bench trial, there is no jury because the judge is the fact finder. The Judge hears opening statements, the presentation of evidence and closing arguments, and then decides whether a crime has been committed and whether the client is criminally responsible as charged.
In a jury trial, jurors resolve disputed facts. A jury trial is where a Judge presides, and six or 12 eligible residents are selected to hear the case and make a finding of guilt or innocence. The jury is the fact finder. During jury selection the judge, prosecutor, and defense attorney question prospective jurors and then select the jury. The trial begins when the jury is sworn. Although every trial is different, there are specific elements that make up the proceeding.
A jury trial starts with opening statements from one or both sides. Opening statements tell the jury what both sides expect the evidence will show. The prosecution must call witnesses to testify and introduce physical evidence because it has the burden of proving the case. The defense attorney may cross-examine the prosecution’s witnesses and challenge its evidence. After the prosecution presents its evidence, the defense attorney may ask the Judge to dismiss the case (motion for a judgment of acquittal) because the prosecutor did not present enough evidence to show that the client committed the crime. If the Judge grants the motion, the case is over. If the Judge denies the motion, the defense attorney may call defense witnesses and introduce evidence.
Because the State has the burden to prove that the person committed the crime, the defense does not have to present its own case. The client may choose to testify or not. After all evidence is presented, each side presents closing arguments to the jury. The Judge then instructs the jury about the laws and rules that they must consider during their deliberation, which is when the jury meets alone to review and discuss the admissible evidence until they reach a unanimous decision (verdict).
If the jury cannot unanimously decide, the Judge can declare a mistrial (hung jury). If a mistrial is declared, the Judge may reschedule a new trial for a later date. If the jury finds the client guilty, it is then up to the Judge to decide the sentence to be imposed. In death penalty cases, the jurors also participate in the sentencing. The jurors are presented evidence and arguments so they can make a recommendation to the Judge to impose the death penalty or to sentence to life imprisonment.
What happens if I am convicted at trial?
A conviction could impact a person’s ability to work, live in public housing or rent an apartment, and obtain college grants or scholarships.
Everyone convicted of a felony in Florida must submit their DNA to be added in the state’s DNA database.
Additionally, convicted felons lose access to certain federal benefits, the right to vote, serve in the military, own or possess a firearm, hold public office, serve on a jury and may have a difficult time obtaining a job because in Florida criminal court records are public records. In most cases, a convicted felon can apply to have his civil rights restored through the clemency process after completing the sentence.
If you are not a United States citizen, you may be deported as a result of being found guilty of committing a crime. Felony and misdemeanor convictions (and under some circumstances juvenile adjudications, or convictions), can be used to increase state and federal sentences.
Learn more about how to apply for clemency.
What happens at a sentencing hearing?
Sentencing is the stage at which the judge imposes punishment after a finding of guilt that resulted from a trial, or entry of a plea of guilty or no contest by the client. The Judge may order the Florida Department of Corrections to prepare a pre-sentence investigation (PSI) report and postpone sentencing until after the report has been submitted and reviewed.
The PSI includes information about the case and circumstances of the crime, any prior criminal record, the client’s reputation in the community, education, employment, health and background of the client’s family. The PSI may also include the client’s lifestyle, behavior pattern, and general attitude. When the PSI is completed, the defense attorney reviews it with the client and prepares for the sentencing hearing. The defense attorney can have doctors or other experts evaluate the client and prepare a sentencing report with recommendations to be presented to the judge.
The defense attorney should know in advance the names and addresses of people who want to speak at the sentencing hearing on behalf of the client. At the sentencing hearing, the client has a right to speak and have the defense attorney make a presentation.
The Judge then informs the client of the finding of guilt and imposes the sentence, which can range from suspending the sentence, or a probation term, to the maximum jail or prison time allowable by law. The Judge can, and, in some cases must, require the client to pay restitution to the victim and attorney (Public Defender) fees and court costs.
In capital cases, the maximum sentence is death and the law provides for a sentencing process that involves jurors making a recommendation to the judge on whether to impose the death penalty.
What is probation?
Probation is an alternative to being sentenced to jail or prison which carries significant limitations on the client’s liberties. The Judge, using the sentencing guidelines (also referred to as the punishment code), may sentence a client to probation or community control (house arrest) instead of, or in addition to, serving time in jail or prison.
A probationer, or person under probation, is under the supervision of the Florida Department of Corrections and must abide by its rules until the sentence is completed. Probation may take the form of community control, an intensely supervised and restrictive program in which a probation officer makes regular unannounced visits to the probationer’s home and may electronically monitor the probationer’s movements.
In addition to the visits, the probationer will regularly report to a probation officer, receive permission from his probation officer before changing addresses or jobs or leaving the county, and must not commit any new crimes or abuse drugs or alcohol while on probation or community control.
If the probation officer believes that the probationer has violated any of the conditions of the probation, the officer can file an affidavit alleging the specific violations and may ask the judge to hold a hearing to determine if the probationer is in violation. A probationer can be arrested and held in jail pending the probation violation hearing.
At the hearing, if the Judge finds that the probationer violated the terms in a willful and substantial way, the Judge may revoke the probation and sentence the client to jail or prison, or extend the probationary period. If the Judge finds the probationer did not violate the terms of probation, the probationer is restored to probation.
Fees, Costs and Restitution
The services of the Public Defender are not free unless the client is acquitted (found not guilty) or the charges are dismissed.
If the Judge makes a finding of guilt after plea or trial, the judge may require the client to pay attorney’s fees for the reasonable value of the services the Public Defender provided, court costs and restitution. The Judge can require the payment of the costs and fees as a condition of the sentence or can impose a lien on the client’s property. If they are not imposed as a lien, the Clerk of the Court will enroll the client in a payment plan. Additionally, a judgment may be filed against the client for the attorney’s fees, court costs, and restitution.
A client has no right to appeal a plea of guilty or no contest, except when the Judge allows him to reserve the right to appeal a particular point of law. A client who is convicted at trial and wants to appeal the conviction must file a notice of appeal within 30 days of being sentenced and must inform the appellate court of the exact errors in the trial.
The client or the defense attorney must convince the appellate court that the trial judge’s errors affected the outcome of the case. Some common errors are that the Judge did not follow the law or that the client was prevented from exercising his constitutional rights. In some cases, the Judge may allow the client’s release on bail until a final decision is made by the appellate court.
The client does not have an automatic right to bond during the appeal. The Judge will set a bond, pending the appeal, only if he or she believes the client has a good reason for appealing and that the client will reappear in court. It is possible that the client may serve the entire sentence during the appellate process.