General Florida Criminal Law - FAQs

We try to anticipate common questions one might have about various legal issues and services and provide information here. If you need additional information send an email to info@jackklaw.com.

• Do I really need an Attorney?
  • "I didn't do anything wrong! But, I got arrested anyway."
    

    Circumstances can lead to anyone being falsely accused of criminal wrongdoing. Of course, it just makes sense to hire an attorney to fight false accusations. Remember, INNOCENT until and unless proven guilty -- not the other way around!!

    "I was just there. I didn't know what was going on for sure or what they were really doing."

    Sometimes, unfortunately, people make decisions that result in their becoming involved in the commission of a crime. However regrettable such a decision may be afterward, it is especially important to retain an attorney in these situations to protect your rights.

  • "Let's see how it goes first, before I spend the money for a lawyer. Besides, won't they just automatically do what's right – that's their job, right?"
    

    People frequently want to "wait and see" what happens. This strategy, while seemingly logical, encourages the authorities to make decisions with only the facts supplied by law enforcement or those who may have an axe to grind and, NO, they don't "automatically" know, or do, anything! Isn't it just as important to have information that supports your position provided to those in charge of these decisions, if it can only help you? When you get us involved early on, before charges are filed or even an arrest is made, we can often speak to the prosecutor's office before formal charges are levied against you. We've all heard the expression, "an ounce of prevention is worth a pound of cure." With an advocate there for you, what could otherwise be a "one-sided" decision can now become a fair decision. The playing field is more level when someone is there on "your side."

  • "OK, maybe I did do some things I shouldn't have, now what?"
    

    An experienced lawyer can ensure that any legal defenses, as well as any extenuating or mitigating circumstances are effectively presented to the judge and/or a jury. Also, in this age of increasingly harsh criminal penalties and minimum mandatory sentences, it is important to reduce one's exposure to possible sentences. Common sense tells us that experienced and aggressive attorneys get results. Being thoroughly familiar with the legal issues involved in every case, fully investigating the facts, and identifying any problems with the evidence are all vital in resolving a criminal case more favorably.

  If you've asked any of these questions, call us today. We have helped hundreds of people faced with the same situation, and would be honored to represent you.

• Can the Police Legally Conduct a Search of my Home? My Car?
  Laws involving proper and improper searches are complex. Never resist a search with force. However, one should not consent to an unlawful search. If you object to having a search conducted, tell the police officer who is searching that he or she does not have your consent to search. Tell him or her that you object to being searched and ask him or her to identify themselves. Give this information to your attorney as soon as possible. When it comes to searching without a warrant, it often breaks down to what is "reasonable" under the circumstances. If a police officer has a search warrant, you may have a copy of the warrant and you should realize the search is limited to only the places specifically stated in the warrant. If it happens that you are arrested in your home, the police may conduct a search of the immediate area without a warrant. They can check the entire house for other people and they can take property as evidence that is in plain view. If you are involved in a traffic stop and then arrested, your car could be impounded and/or inventoried (searched). If you know a licensed driver who can come get your car, impoundment may be avoided if you tell the police officer you have someone who can get your car.
• What is the difference between a misdemeanor and a felony?
  Criminal offenses are most often categorized into two kinds: felonies and misdemeanors. The primary difference between the two is the amount of jail time and the severity of punishment that a convicted offender can be sentenced to serve. In Florida, a misdemeanor is any crime punishable by no more than one year in a county correctional facility. §775.08(2), Fla. Stat. Examples include minor shoplifting, most DUI’s, minor criminal mischief and possession of small amounts of marijuana. In Florida, a felony means any criminal offense punishable by imprisonment in state prison. §775.08(1), Fla. Stat. Some of these offenses include murder, battery, robbery, aggravated assault and possession of a controlled substance other than a small amount of marijuana.
• Can you go to Jail for a "Minor" Crime?
  Yes. Crimes are usually categorized as either a misdemeanor or a felony. Misdemeanors may be punishable by up to one year in jail. Felonies can be punishable by a prison term of at least one year, or more, based on the severity of the charge. A third-degree felony is punishable by up to 5 years in prison. A second-degree felony is punishable by up to 15 years in prison. A first-degree felony is punishable by up to 30 years in prison. There are some felonies that are "punishable by life" that can carry a penalty of life in prison. The death penalty can only be imposed with capital first-degree murder charges.
• What is the typical procedure in a criminal case?
  The criminal court proceedings in Florida can be confusing and stressful to navigate. Here is an overview of how it unfolds in Florida:
  • A crime is allegedly committed and a person, referred to as the "suspect" or the "accused", if the police believe they have probable cause, is then arrested. Once arrested, the accused is booked, photographed, and fingerprinted. Officials may ask the suspect questions in an attempt to find out information and/or about any prior criminal history. In Florida, and normally within 24 hours, a suspect who has not (or cannot) post bond will go to court for their initial appearance. It is at this stage that a court official will determine whether there is probable cause to believe that the accused (now referred to as the "Defendant") committed the act in question, whether or not they are eligible to be released on bond and, if so, a bond amount necessary for them to "post" as a bond (sometimes called "bail"). Often, conditions of release (like "no contact" or "no return to the scene") will also be imposed.
  • Next, the Prosecutor’s Office reviews the case and decides if there is enough evidence to proceed on with prosecution. To be formally charged, it typically takes anywhere between one and four weeks. However, it can take months for the prosecutor to make this decision. If the person is still in custody, then in almost all cases, they are entitled to be released on their own recognizance if they have not been formally charged within 40 days of their arrest date. They can still be charged, but at least they aren't still in custody.
  • The next step is your arraignment date where you are advised whether you have been formally charged. If so, then at the arraignment, the suspect can plead guilty, not guilty, or no contest. A "Guilty" plea means you accept that facts of the case are true and you admit and acknowledge committing the crime with which you are being charged. A "Not Guilty" plea means that you deny committing the crime with which you are being charged. If you enter a not guilty plea, the court will normally set a pre-trial conference date, and often, also a trial date. A "No Contest" or "Nolo Contendre" (it's Latin) plea means you are not admitting guilt, but at the same time you are not disputing that the charges against you can be proven.
  • The next step is "Discovery." In Florida state courts, the Rules of Criminal Procedure allow for open discovery, which means that the defense, assuming they elect to participate in discovery, is allowed access to all of the evidence that the State would seek to use against the accused Defendant. Discovery is commonly statements or reports in written form, but can also be electronic media (like CD's, DVD videos, or MP3 files), and can also include, in some cases, the taking of depositions, which are sworn and in person statements that the witnesses are required to provide to the defense attorney. Through discovery, the defense will learn about the evidence against the Defendant and then, depending on what the evidence shows, decide if the next step should be to try and reach a plea agreement, or to proceed to trial. That is why it is critical to have a criminal defense attorney to guide you through this process. Without experienced counsel, you can make a costly or even foolish decision that could affect your life forever.
  • A "Plea Agreement" is an agreement between the prosecutor and the defense/defendant whereby the defendant agrees to plead guilty (or more often, no contest) to a particular charge in return for some concession from the prosecutor. By agreeing to a plea agreement a defendant may avoid jail time, receive a reduction in the severity of the charge, and/or a lessening of the sentence. An experienced criminal defense attorney can make a substantial difference in what type of a plea you are offered. If, after considering all the important factors, you decide that it is better instead to move ahead with a trial, you could face trial by a judge or a jury. At the trial, the prosecution (and the defense if it chooses to present its own evidence) puts on its case. The attorneys for both sides are allowed to give an opening statement and a closing argument, after which the jury deliberates and renders a verdict. Upon a verdict of "Not Guilty", you are free to go and you avoid sentencing since you have now been "acquitted". However, in the event of a guilty verdict, you will normally end up being sentenced for the crime for which you were found "Guilty". Sometimes, an experienced criminal defense attorney can effectively argue that you are not guilty of the primary offense or crime that you have been charged with and, instead, that the jury should only find that you have committed a "lesser" included offense. Being found guilty only of a lesser offense can significantly reduce the severity of the sentence. Sentencing can occur immediately after trial or can often be set out some weeks or even months later to allow your attorney to prepare "mitigation" for sentencing. Mitigation evidence is basically testimony or other evidence that demonstrates some justification or explanation why someone did something or why their actions should be understood and excused by the judge to some degree.
• What is the difference between a dismissal and an expungement?
  
  • A "Dismissal" by the court or a "Nolle Prosequi" entered by the prosecutor in a criminal case means that the prosecution is over and the charges have been dropped. The law allows the judge to dismiss a case for several reasons: Insufficient evidence, Statute of Limitation Violation, Constitutional grounds, Statutory grounds or Speedy Trial Grounds. Other times, a first time offender or a non-violent offender may receive "diversion" that leads to a dismissal. Having "Adjudication Withheld" basically means that you are not considered as having been "Convicted" of that offense. Many people are surprised to find out that their arrest record still exists after their case was dismissed or adjudication was withheld. Since adult (and some Juvenile) cases are a matter of public record, after your charges are resolved this way, someone may be unhappily surprised to discover that their arrest and criminal charges were not automatically expunged from your record or sealed. An potential employer who does a criminal background check on you will see a record of your charges. Hopefully, but not always, they will also see that the case was dismissed and no criminal conviction exists. That doesn't mean that they won't still hold it against you and hire someone else for the job.
  • An expungement means that the record is supposed to be physically destroyed and, in essence, it’s as though the crime never occurred. A sealing is similar, but the records are normally only sealed. Either way, the specifics of the record should be removed from background checks. However, not every crime can be sealed or expunged. The Florida statutes enumerate a list of disqualifying offenses. For example, a reckless driving charged with adjudication withheld can be sealed and ultimately expunged, but a DUI conviction cannot be sealed or expunged. An immediate expungement is normally an option only if the charges were dropped, dismissed by the court, or never filed.
• I plan to plead “NOT GUILTY,” what will happen next?
  Typically you enter your plea at your arraignment, which is your first appearance. Having a lawyer with experience in criminal defense can often make a substantial difference in the outcome of your case. Just because you plead not guilty, does not mean you then always have to go to trial. The Prosecutor and your attorney can discuss a settlement of your case, commonly known as a Plea "Bargain" or Plea "Agreement." An experienced lawyer will assess the facts in your case and will know whether you are getting the best possible offer for a disposition without the requirement to go to trial.
• What is a plea agreement?
  A plea agreement (also plea deal or plea bargain) is a negotiated agreement between a criminal defendant and a prosecutor in which the defendant agrees to plead guilty or no contest to a lesser charge or to accept a reduced or deferred sentence in exchange for resolving their case short of a trial. This is an area where a skilled and experienced defense attorney can advise you if a plea agreement would be in your best interests.
• What is the maximum penalty for a crime in Florida?
  If you are convicted of a crime in the State of Florida, the sentence that you will receive depends largely on the severity and nature of the offense. Felony offenses are divided into a number of categories (Capital felony, Life Felony, First degree felony, Second degree felony, Third degree felony) each bearing its own maximum sentence. §775.082(1), Fla. Stat.
  • Capital felony: This type of felonies are the most serious crime in Florida and are potentially punishable by the death penalty - for example, first degree murder.
  • Life felony: Can be punishable by life imprisonment. (Fla. Stat. §§ 775.082, 775.083.)
  • First degree felony: In Florida, First degree felonies are usually punishable by up to 30 years in prison and can carry a fine of up to $10, 000. (Fla. Stat. §§ 775.082, 775.083.) For example,
  • Second degree felony: A second degree felony is punishable up to 15 years in prison, fifteen years’ probation, and a $10,000 fine
  • Third degree felony: Felonies of the third degree are the least serious types of felonies, punishable by up to five years in prison, and a $5,000 fine.
• How does someone get bailed out? Do I get the bail money returned when the case is over?

  The purpose of a bail is to ensure that a criminal defendant released from jail shows up for trial and to protect public safety.If the defendant or his/her family pays the bail, the defendant can be "bailed out of jail". Bail can be a cash bond or, in some circumstances, property that an arrested person uses a collateral to ensure he or she will appear when in court when ordered to do so. If the defendant doesn’t show up, the court may keep the bail and issue a warrant for the defendant’s arrest.

  If you use a service of a bail agent or bondsman, you will be fee, usually 10% of the bail amount. This fee is nonrefundable and remains with the bails bond company. If you paid the court the full bail money directly, you are entitled to receive the full amount back once the case is over, no matter if you are acquitted or convicted of your charges. However, in many jurisdictions, bail or a cash bond that was posted will be used to satisfy some or all of the monetary fines and/or costs in the event the defendant is ultimately sentenced. In that situation, any remaining balance will then be returned to the depositor. If your property was used as collateral, it will be returned to you as well, provided you appear for court as ordered.

• What is a "Sentencing Alternative"?
  Some alternatives to jail can include probation, payment of fine or restitution, community service, drug or alcohol counseling and various diversion programs. Sometimes a combination of these may be imposed in lieu of a jail sentence.

Contact Criminal Defense Attorney Jack A. Kaleita

We try to anticipate common questions one might have about various legal issues and services and provide information here. If you need additional information please contact us at your earliest convenience. We are available at (866) 422-7934 and (407) 831-7800. You can also fill out our online form provided at the top of this page or send us an email at info@jackklaw.com and we will contact you back as soon as possible.