Florida Criminal Rules of Procedure
After being accused of a crime, it is important to know the rules that will apply to the investigation of the charges against you, the arrest, preliminary hearings, trials, and appeals. This article outlines Florida’s rules of criminal procedure as it relates to judicial administration, appellate procedures, the rules of evidence, and the rules of juvenile procedure.
Your criminal defense attorney must be familiar with every procedural rule and how it can be used to help you achieve the best possible outcome in your case.
The attorneys at Meltzer & Bell represent clients charged with misdemeanor and felony offenses throughout Broward County, FL. Call us at (954) 745-7457 for a free consultation to discuss the facts of your case and the rules of criminal procedures that will apply to how the case proceeds.
Call (954) 745-7457 for a free consultation today.
Before the Arrest
All cases begin with a criminal investigation. A person can be arrested if the law enforcement officer has probable cause that a crime was committed and the person accused was the person who committed the crime. In order to obtain this evidence, the officer will investigate the charges, search for and seize evidence, interview witnesses, and seek to obtain a confession from the person accused of the crime.
Anyone accused of a crime has a right to remain silent under the Fifth Amendment of the Constitution of the United States. In fact, the arresting officer must inform a person of this right before a custodial interrogation can begin. A person accused of a crime also has a right to the assistance of an attorney under the Sixth Amendment. A criminal defense attorney can help you assert these defenses after the criminal investigation begins.
Depending on the circumstances, the officer can either make an arrest or ask the judge to sign an arrest warrant. In some cases, the State Attorney’s Office will file the charges and then seek an arrest warrant. The court can also issue a capias or bench warrant if the defendant fails to appear in court for a scheduled court date or if the defendant violates the terms of pre-trial release, probation or community control.
If the person is wanted on a warrant issued out of state, an extradition process can occur. The person is arrested and held in their home state while awaiting extradition to the state where the warrant was issued. Likewise, a person can be held in custody in one county in Florida while awaiting transport to another county where the charges are pending.
The statute of limitations can apply in these cases to prohibit a prosecution is the charges are not brought within a certain amount of time after the incident.
After an Arrest
After being arrested, the person accused of the crime is booked into the county jail. During the booking process, the person arrested will be photographed and fingerprinted. Other information will be gathered about the person accused including their full name, date of birth, and address. In some misdemeanor cases, the arresting officer might issue a “notice to appear” in court instead of making a physical arrest.
At the end of the case, many people are eligible to have this information expunged (if no formal charges are ever filed, the charges are dropped by the prosecutor or dismissed by the judge). In other cases, the information can be sealed if the person avoids an adjudication of guilt by successfully completing probation or if the jury returns a not guilty verdict at trial.
First Appearance and Posting Bond
If the person accused of the crime does not immediately bond out of jail, within 24 hours after the arrest, the person will be brought before a judge for the first appearance hearing. The person will be told the reason they are being held. An attorney might be appointed to represent them if they are indigent. Finally, the court will determine the amount of bond to be set so that the person can bail out of jail either by posting a cash bond or using a bail bonds company.
If the person can afford to hire a private attorney for the first appearance, the attorney can argue for a lower bond and discuss with the court the pre-trial conditions of arrest.
The state will take the next 21 days to decide what charges, if any, should be formally filed. In some cases, the prosecutor will “nol file” the case meaning that no formal charges are filed. In Florida, the defendant has the right to a preliminary hearing within 21 days of arrest if no formal charges are filed during that time period.
Within several weeks of the arrest, if the prosecutor formally files charges, then the case will be set for an arrangement. At the arraignment, the court will tell the accused the formal charges. The person will usually enter a “not guilty” plea and the case will be set off so that the criminal defense attorney can obtain a copy of the information in the prosecutor’s file (often called the “discovery”).
In many cases, the private attorney will enter a not guilty plea, and file pre-trial motions including a motion for statement of particulars, a waiver of the arraignment, and a demand for discovery.
Pre-Trial Conferences and Hearings
After the arraignment, the court will set a series of disposition court dates (often called a status hearing, disposition or pre-trial conference). The criminal defense attorney might also file motions that require a pre-trial evidentiary hearing including a Motion in Limine, a Motion to Dismiss, a Motion to Suppress, or a Motion to Exclude Evidence.
The motion hearing is usually set before the jury trial is scheduled.
The Jury Trial
After all pre-trial motions are heard by the court, the court will usually set the case for trial. A jury trial will be set unless the defense and the prosecution agree to a bench trial. Before trial, all pre-trial motions must be filed. The prosecutor and defense attorney will draft the proposed jury instructions and the verdict form for the court’s consideration.
The state and defense will also prepare a witness list and a list of exhibits that must be marked for identification before trial.
Unless the defendant waives the right to a speedy trial, the defendant must be brought to trial within 90 days on a misdemeanor charge or 180 days on a felony charge.
Most criminal cases are resolved before a trial either because the prosecutor drops the charges, the court dismisses the charges, or the defendant agrees to enter a plea under a negotiated plea agreement. Although the judge is not required to accept the terms of a negotiated plea, the court usually does accept the plea.
For individuals with no prior record or with no serious prior record, the prosecution might agree to divert the criminal charges away from the court and into a voluntary diversion program. The terms of the various diversion programs vary widely. In many diversion programs, the charges are completely dropped after the defendant completes certain conditions such as supervision, community service, paying restitution, and counseling.
Unless the state and defense agree to a bench trial, the case will be tried by a jury. At trial, each side makes an opening statement. Then the prosecution presents its evidence and witnesses. The defense then makes a motion for a judgment of acquittal (JOA) arguing that the evidence is not sufficient.
If the court denies the JOA motion, then the defense presents its evidence and witnesses. At the conclusion of the case, the defense will renew its motions. If the court finds that sufficient evidence was presented, then each side will make a closing argument. The court reads the jury the jury instructions on the laws that apply to that particular case.
The jury then deliberates until a verdict is reached. If the jury cannot reach a unanimous decision, then the case ends in a mistrial. If the jury can agree, then it can enter a “not guilty” verdict or a “guilty verdict” as to each charge. The jury can also consider lesser included offenses.
If the jury enters a “guilty” verdict as to any charge, then the court will sentence the defendant.
The court can sentence the defendant up to the statutory maximum allowed for the offense after the trial. The statutory maximum sentence for each offense is listed below.
- Second Degree Misdemeanor – up to 60 days in jail or 6 months probation with a $500 fine;
- First Degree Misdemeanor – up to 12 months in jail or 12 months probation with a $1,000 fine;
- Third Degree Felony – up to five years in prison or five years probation with a $5,000 fine;
- Second Degree Felony – up to fifteen years in prison or fifteen years probation with a $10,000 fine;
- First Degree Felony – up to thirty years in prison or thirty years probation with a fine;
- Life Felony – certain felony offenses are punishable by life in prison and a fine up to $15,000;
- Capital Felony – a capital felony is the most serious type of offense in Florida and is punishable by the death penalty.
After the sentencing, the defendant can appeal the judgment and sentence to a higher court. In some cases, the court will grant an appellate bond. The appellate court can determine that insufficient evidence existed which results in the defendant being exonerated.
The appellate court can also find an error occurred that will result in the case being remanded for a new trial. If no errors are found, then the court will affirm the conviction and enter a mandate.
After the sentence is confirmed, the defendant can pursue certain types of post-conviction motions seeking relief from the judgment and sentence. The most commonly filed post-conviction motion is a motion filed under Rule 3.850 for ineffective assistance of counsel. If the court finds that the trial attorney or the appellate attorney were ineffective, then certain types of relief can be granted including the case being remanded for a new trial.
Florida Rules of Juvenile Procedure Flow Chart – Visit the website of the Florida Department of Juvenile Justice to find a flow chart explaining what to expect during the juvenile justice process in Florida. The flow charge begins with the first contact with law enforcement, being taking into custody, the DRAI assessment, awaiting a court date at home or remaining in secure detention, the case being nolle prossed, adjudication being withheld or being adjudicated delinquent. The flow chart ends with the youth being released from secure detention, probation or a residential facility.
Florida Rules of Criminal Procedure – Visit the website of the Florida Bar to find the Florida Rules of Criminal Procedure which were last updated on September 29, 2016. The rules address preliminary procedures, discovery, change of venue, trial, the verdict, and sentencing. Also find sample orders related to revocation of probation and community control, and orders certifying no incarceration.
This article was last updated on Friday, October 21, 2016.