Anatomy of a Criminal Case
Experienced Attorney in St. Petersburg
This section presents a generalized overview of the process by which cases are prosecuted in the Tampa Bay area. If you have been arrested for a criminal offense in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City or Bradenton, an experienced criminal defense attorney can answer questions that are specific to your particular circumstances.
The Arrest & Pre-Charge Proceedings
To make an arrest, a law enforcement officer must have probable cause to believe a crime has been committed. Under Florida Law, to make an arrest on a misdemeanor, the alleged offense must have been committed in the officer's presence. There are, however, certain exceptions to this requirement including, for example, domestic related battery offenses. A felony offense, on the other hand, does not have to be committed in the officer's presence to effect a lawful arrest. Where the officer has probable cause to believe a crime has been committed, he or she can either make an arrest on the spot, seek an arrest warrant from a judge or magistrate, or refer the case to the State Attorney's Office for further investigation.
In the former scenario, the person is taken to jail and a bond amount is set. In Florida, a person is entitled to a bond unless the offense is a capital or life felony, and the proof of guilt is evident or the presumption is great. After the arrest, the prosecutor reviews the case, and makes a decision as to whether he or she is going to file formal charges. In Florida, a charging document is called an "Information". If an Information is filed with the clerk of court, the case is set for an arraignment. If the prosecutor decides not to pursue formal charges, he or she files what is called a "No Information" or a "Letter of Release" and prosecution is terminated.
In the latter scenario (where no arrest was made after the crime was allegedly committed), the prosecutor reviews the case (usually the police report and any other evidence collected by law enforcement) and makes a decision as to whether there is a reasonable likelihood of successful prosecution. If so, the prosecutor will file an Information. If misdemeanor charges are filed, the defendant will receive a summons to appear in court for an arraignment (by mail). If felony charges are filed, a warrant is issued for the defendant's arrest. Once again, as long as the offense is not a capital or life felony, the defendant is entitled to a bond. Whether a felony or misdemeanor charge is filed, the clerk will set the case for an arraignment thereafter. It should be noted that certain traffic offenses, such as DUI, are charged by citation. After the officer makes the arrest and files the traffic ticket with the clerk, the person is formally charged (there is no review process by the prosecutor).
Florida also recognizes what is called a "Notice to Appear" in misdemeanor cases. A notice to appear is a document issued by the police officer, to the accused, requiring him or her to appear in court for an arraignment. A notice to appear is still considered an arrest even though the accused is not physically taken into custody. Again, this is done only in misdemeanor cases and where it appears that the accused has sufficient ties to the jurisdiction to reasonably assure that he or she will appear in court.
Whether a physical arrest is made by the police officer at the time the offense is committed, or by arrest warrant sometime thereafter, the person must be brought before a judge or magistrate within 24 hours for what is called an advisory hearing or first appearance hearing. At the advisory hearing, the judge informs the defendant of the charge(s) upon which he or she has been arrested, determines whether there is sufficient probable cause to hold the person in lieu of bond, addresses the reasonableness of the bond amount, and conducts a brief financial inquiry to determine whether the person qualifies (provisionally) for the services of the public defender.
If the defendant is unable to post the bond, and remains in custody the State has 21 days to file formal charges or the defendant is entitled to what is called an "Adversarial Probable Cause Determination" hearing. Here, the state calls witnesses to the stand (usually the arresting officer) to establish that there was probable cause for the arrest. The defendant is entitled to cross -examine any witnesses the state called by the state (there are some potential downsides to conducting a cross examination under these circumstances; an experienced St. Petersburg criminal defense attorney can explain this is greater detail). If the judge finds that there is a lack of probable cause, the judge must release the defendant on his or her own recognizance.
The state has 30 days to formally charge a defendant who remains in custody after an arrest. On the 30th day, the judge must order that the defendant be released on his or her own recognizance on the 33rd day unless the state has filed formal charges by that time. If the state shows good cause as to why charges have not been filed by the 33rd day, the court must then order that the defendant be released on his or her own recognizance by the 40th day unless the state has filed formal charges by that date. In no event can a defendant be held in custody beyond 40 days unless he or she has been formally charged with a crime.
If formal charges are filed, the case is set for an arraignment approximately 30-45 days later. The purpose of an arraignment is to have the court advise the defendant of his or her formal charges, and ask the defendant whether he or she pleads guilty or not guilty. If the defendant pleads guilty, he or she may be sentenced at that time, or sentencing may be deferred to a later date. In most cases, upon being retained, the defendant's attorney will file a written plea of not guilty on the defendant's behalf. The filing of this document waives the defendant's appearance at the arraignment and the case is set, by the clerk, for a "pre-trial" or "disposition" hearing. There are some exceptions this general principle however: drug court, for example, usually requires the defendant's presence at the arraignment.
A "demand for discovery" is often filed with the written plea of not guilty (as part of the same pleading). When discovery is demanded, the State is required to provide all of the evidence in their possession against the accused, including witness lists, video tapes, police reports, audio recordings, etc. By demanding discovery, the defendant obligates himself or herself to certain reciprocal discovery requirements. It should also be noted that in Florida, the defendant is entitled to take depositions of the state's witnesses (and vice versa) in criminal cases. Other states, such as Georgia, do not permit the taking of depositions in criminal cases, except in very limited circumstances.
Most judges will allow three (or so) pre-trial/disposition hearings before setting the case for trial. The purpose of the pre-trial conference is to keep the court appraised of the progress of the case (i.e. compliance with discovery obligations, scheduling of depositions, etc.) and to give the defendant an opportunity to resolve the case if a plea agreement has been reached.
Also, if there are any issues that need to be resolved by way of a defensive motion, such as a motion to suppress, the court will usually set a special date to have the motion heard (a date that is convenient for the court, the attorneys, the defendant, and the witnesses to be called by either side). If a motion to suppress is granted, the state may or may not choose to appeal the court's ruling. If not, then they will usually drop the charges, but not always. If the evidence suppressed is not dispositive (in other words, there is still enough evidence against the accused to proceed with prosecution) then it is unlikely the charge will be dropped.
If a plea of guilty or no contest is entered at a pre-trial conference, then the defendant is usually sentenced at that time and the case is disposed of. Sometimes, the judge may accept a plea and set a sentencing hearing for a later date. This is usually done to give the defendant's attorney time to prepare and present facts and argument in mitigation (and to give the state sufficient time to prepare its rebuttal).
If the defendant decides to exercise his or her right to a trial (either before a judge or judge and jury), then a trial date is set. If the defendant is found not guilty, then prosecution is terminated and the state is constitutionally barred from re-initiating a subsequent prosecution based on the same conduct. If the defendant is found guilty, then the judge is required to sentence the defendant to any minimum penalties prescribed by law (for that particular offense) and has the discretion to sentence the defendant up to the statutory maximum. For more information, see the trial section of our website.
Post Trial Motions
Under Florida law, when a verdict has been rendered against the defendant, or the defendant has been found guilty by the court, the court, on motion of the defendant, or on its own motion, may grant a new trial, or arrest judgment. Where appropriate, the defendant may also file a motion for judgment notwithstanding the verdict. Each of these post trial motions is examined in greater detail below.
Motion for New Trial
Under Florida law, the court must grant a new trial if any of the following grounds is established: (a) the jurors decided the verdict by lot; (b) the verdict is contrary to the law or the weight of the evidence; or (c) new and material evidence, which if introduced at the trial would probably have changed the verdict or finding of the court, and which the defendant could not with reasonable diligence have discovered and produced at the trial, has been discovered.
The court may also grant a motion for new trial, under any of the following circumstances, provided substantial rights of the defendant were prejudiced thereby: (a) the defendant was not present at any proceeding at which the defendant's presence is required by the Florida Rules of Criminal Procedure; (b) the jury received any evidence out of court, other than that resulting from a view of the premises; (c) the jurors, after retiring to deliberate upon the verdict, separated without leave of court; (d) any juror was guilty of misconduct; (e) the prosecuting attorney was guilty of misconduct; (f) the court erred in the decision of any matter of law arising during the course of the trial; (g) the court erroneously instructed the jury on a matter of law or refused to give a proper instruction requested by the defendant; or (h) for any other cause not due to the defendant's own fault, the defendant did not receive a fair and impartial trial.
In cases where the state is not seeking the death penalty, a motion for new trial must be made within ten days after the rendition of the verdict. The motion may be amended within that ten day period to state new or additional grounds upon which relief is sought, without leave of court. In capital cases, where the death penalty is an issue, a motion for new trial (or for a new penalty phase hearing) may be made within ten days after written final judgment of conviction and sentence of life imprisonment or death is filed. If timely filed, the motion may be amended within the initial ten day period without leave of court. Written motions for new trial are filed with the clerk, must state the specific bases upon which relief is sought, and a copy must be served on the state attorney. A hearing will be set by the court sometime after the motion is filed.
A motion for new trial can also be made orally, immediately following the rendition of the verdict, and the court may immediately rule on the motion.
Until the motion for new trial is ruled on, a defendant who is not already on bond shall remain in custody unless the court, on good cause shown, permits the defendant to be released on bail. Of course, the offense for which the defendant has been found guilty must be an offense that is bailable under Florida law. If the defendant is already out on bond, and the court determines that the bail amount is good and sufficient, it may permit the defendant to continue at large on such bail until the motion for new trial is heard and disposed of.
When a motion for new trial requires a determination of fact, the court may consider evidence on the motion by affidavit or actual testimony.
When a new trial is granted, the new trial shall proceed in all respects, as if no former trial had occurred, except that when an offense is divided into degrees, or the charge includes a lesser offense, and the defendant has been found guilty of a lesser degree or lesser included criminal offense, the defendant cannot thereafter be prosecuted for a higher degree of the same offense or for a higher offense that that of which the defendant was convicted. An experienced St. Petersburg, Clearwater or Tampa area criminal defense lawyer can explain this in greater detail.
Motion for Arrest of Judgment
Under Florida law, a court may grant a motion for arrest of judgment only on one or more of the following grounds: (a) the indictment or information on which the defendant was tried is so defective, it will not support a judgment of conviction; (b) the court is without jurisdiction of the cause; (c) the verdict is so uncertain it does not appear therefrom that the jurors intended to convict the defendant of an offense of which the defendant could be convicted under the indictment or information under which the defendant was tried; or (d) the defendant was convicted of an offense for which the defendant could not be convicted under the indictment or information under which the defendant was tried.
The time limitations for filing, and amending, a motion for arrest of judgment are the same as those that apply to a motion for new trial. Motions for arrest of judgment are very rarely filed and rarely granted. Most times, defects in the information de minimus and are often cured well before the trial of the cause. It is also extremely rare that the trial court was without jurisdiction to hear the matter.
Motion for Judgment Notwithstanding the Verdict
A motion for judgment notwithstanding the verdict is essentially a motion for judgment of acquittal following the rendition of a guilty verdict. Motions for judgment of acquittal are made after the state has put on its case-in-chief and, if denied, at the conclusion of the defendant's case-in-chief (where the defendant elects to put a case on; remember that the accused has no burden of proof and is not required to prove or disprove anything). A motion for judgment of acquittal, whether made during the course of the trial, or following the rendition of a guilty verdict, basically asserts the the evidence is insufficient to support the charge.
For more information on motions for judgment of acquittal, see the " Trial" section of our website.
An appeal is the process by which a higher court reviews certain harmful rulings or errors made by lower courts on matters of law. It is not an opportunity for litigants to re-argue the facts of the case. Errors are harmful if they were outcome determinative. In Florida, when a person is convicted of a crime in circuit court, he or she may file a direct appeal of the judgment and sentence to the District Court of Appeal. The Second District Court of Appeal hears cases that originated in Pinellas and Hillsborough Counties. If the defendant pleads guilty or no contest to a charge, and has been convicted or sentenced, the grounds for an appeal are extremely limited.
A defendant typically cannot appeal adverse pre-trial orders (such as an order granting the state's motion to introduce similar fact, or "William's Rule" evidence) but the state can appeal certain orders suppressing evidence or dismissing charges prior to trial.
An appeal is initiated by filing a notice of appeal with the clerk of circuit court. This is done within 30 days of judgment. The notice is thereafter forwarded to the appropriate district court of appeal. If the notice of appeal is not timely filed, the appellate court cannot hear the matter. The notice of appeal must be accompanied by the appropriate filing fee.
Also forwarded to the appellate court is a copy of the record (papers and documents filed with the trial court), a transcript of the proceedings (prepared by the court reporter), and a brief that outlines for the court any purported harmful errors committed in the court below, the relief sought, and the basis therefore. The opposing party will usually file a response brief outlining why the appellant is not entitled to the relief sought.
Once the appellate court has received and reviewed the record, transcripts, briefs for the appellant and the appellee, and heard oral argument where applicable, a decision will be made by a panel of judges. If the appellate judges agree with the trial court's rulings, they will issue a written order affirming the trial court. The order may or may not include a written opinion. If the appellate court disagrees with the trial court, it will issue an order and opinion explaining why, and will include directions to the trial court about what actions need to be taken next.
If you have been arrested in the Tampa Bay area, including St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City, or Bradenton, and have questions about the criminal process, contact The Kilfin Law Firm, P.C. for an initial consultation.
Best of the best!
From the minute I spoke with Mr. Kilfin, I knew I was in the best hands for my situation. He is a complete professional; an ...Michelle
The light on my families darkest days
Swift action led to my brothers successful defense in 2and degree murder arrest, well spoken and sharp mind but also down to ...Jaroy
Aparte de eso, luego, será muy pertenecer a un test de personalidad cuesta sospechar. Ver teléfono... A mi me da la ...Teresa
Appreciative beyond words
Never have I been in a situation where I felt so helpless, but Mr. Kilfin changed that. He was kind, caring and considerate. ...Happy client
The Best of The Best. As loyal they come
Being from other State, and facing Two Felony Charges, ( over a stupid Cell phone ) I need someone that would have my back ...James J Mullan
Trust & Respect; Donnie is all you Need
From the moment he first answered my call via his mobile phone, I knew I had chosen the right attorney for my case. I had ...Richard M
A " Stellar Gentleman" that's the only way to describe Donnie Kilfin...
"Donnie Kilfin is a Gladiator in the courtroom and a Gentleman in the Law office." End of story.Matthew C,
Donnie is the Best!
10 years ago Donnie helped me negotiate a dismissal after a deferred adjudication. Over the past few months he's helped me ...DB