17th Apr 2015

The following is a brief synopsis of how the criminal justice system works in the State (as opposed to the Federal system) for South Florida courts;

THE ARREST

The first thing that happens usually is the arrest. An arrest can come in different ways. One way an arrest can happen is when an officer gives you a PTA (promise to appear). What this means is an officer has made a decision that you are not a flight risk, so instead he gives you a promise to appear. A PTA (promise to appear) is a promise by you to appear in court when noticed by mail. PTAs are normally given to people charged with only minor offenses such as drinking in public, misdemeanor theft and sometimes marijuana possession. They cannot be administered for felony cases.

However, this isn’t how people usually get arrested. An arrest is most typically characterized by tight handcuffs, a ride to the station in the back of a marked police vehicle, followed by a stay at the local jail. While in jail you are given an initial bond, but not always. If you are not given a bond right away, (such as in a domestic violence case) you must wait to appear before a judge the next morning. Florida law requires that you be brought before a judge within 24-72 hours.
This is called the initial appearance or commonly known as the bond hearing.

At the bond hearing, or initial appearance, a judge will set a bond. How much the bond will be depends on the nature of the offense, ties to the community, prior criminal history and whether a judge finds probable cause on the face of the arrest warrant or arrest form. In certain cases bond is denied. Certain offenses in Florida do not carry a bond. Some examples are murder, kidnapping, armed trafficking, and burglary with a battery. If a person is given a NO BOND status, then the only way to try to achieve a bond is to request an “Arthur hearing”. This can only be done through counsel;

Another way a person can be arrested is by way of an arrest warrant. Arrest warrants are usually used in more complex or serious cases. Arrest warrants have been used in Insurance Fraud, Murder, Grand Theft cases involving large amounts of restitution, RICO, Mortgage Fraud, but can be used by law enforcement to effectuate an arrest in just about any case.

ARRAIGNMENT

The arraignment is when the State makes a formal filing decision and is typically the second time an accused person appears before a judge. The arraignment typically happens between 21 to 33 days following an arrest or PTA. If the prosecution takes longer than 33 days, a person is entitled as a matter of law to be released on their own recognizance (ROR). If formal charges are filed then the accused must enter a plea. The person can either plead NOT GUILTY, GUILTY or NO CONTEST. A “No Contest” or “Guilty” plea are, essentially, the same thing.

If charges are filed against a defendant, the State attorney may make an initial plea offer. The offer is different for different cases and for different people. The plea offer will depend usually on:

  • • the nature of the charges;
  • • the defendant’s prior criminal history or contacts with the system;
  • • the victim’s wishes;
  • • the relationship/reputation the defense lawyer has established with the prosecutor and
  • • a lawyer’s persuasiveness.

If you decided not to take a plea of guilty, or the state attorney wishes not to offer a plea, the case is set for trial.

The key here is to hire an attorney to speak with the pre-file prosecutor before formal charges are filed. A good lawyer will make an attempt to have the case resolved in your favor before formal charges are filed. Some of the questions you want to ask a prospective attorney:

  • • What percentage of your practice is dedicated to exclusively criminal work?.
  • • Has your lawyer handled your type of case before and what results were obtained?
  • • How often does your lawyer fight these cases and go to trial? A lawyer that does not try cases is not a good sign.

Sometimes the cases must go to trial. A lawyer with a reputation for regularly trying cases may be treated differently by the prosecutors and judges since they have a reputation for fighting on behalf of their clients and going to trial.

SOUNDING OR CALENDAR CALL

A week or so before the trial, the judge may set a report date known as a “calendar call” or “sounding”. At a sounding, or calendar call, the defendant informs the judge about the status of the case. The defendant must announce if s/he is ready for trial or whether more time is needed to prepare. If the defense and government are both ready, the case is sounded ready for trial and rolled over to the trial date. Your lawyer should use this and every opportunity to resolve your case favorably.

TRIAL

If you have reached this stage in the process, your lawyer should be prepared to go to trial. An experienced, trial-tested, seasoned criminal defense lawyer may be able to save you jail time, fines and significant emotional aggravation. On the trial day a defendant will usually have the option of pleading guilty, if he or she has changed their mind. Sometimes the offers from the State get better at this stage in the game and sometimes the offer may get worse. Whether the plea offer gets better, or worse, depends on the government lawyer, defense lawyer, victim, judge and circumstances surrounding the case.

Before the trial actually starts motions are sometimes argued. A good motion could get your case dismissed. If a trial is actually started a Judge will bring a” venire” of jurors (a panel of potential jurors) into the courtroom and jury selection begins. This is called “void dire”. From this group of jurors, a panel of either 6 (or 12 for murder or Federal cases) is selected. The attorney has influence over which jurors are selected. Jury selection is truly a complex process that trial lawyers are equipped and trained to handle. After jury selection will be opening statements from the parties. The State will give an opening statement and the defense has the option of giving an opening statement. After opening statements the State will present their evidence. Evidence can be in the form of physical or testimonial evidence. The defense then has the option to cross-examine any witnesses. After the State has presented their case, the defense gets the opportunity to present a case and introduce evidence if it deems necessary. After the conclusion of the defense case the state may seek to introduce any rebuttal testimony or evidence thereafter. Following the defense case are closing arguments.

CHARGING THE JURY

Once the defense and State have presented their closing arguments, the judge will charge the jury. The judge will read the jury legal instructions on how they are to evaluate the case and deliberate. Jury instructions tell the jurors what law they must rely upon in deciding their verdict. An effective lawyer is essential in this process…

“Federal Conspiracy”, the Federal Government’s secret weapon

In the Federal system, the United States government likes to accuse using the “conspiracy charge.

Why do they do that so often? Quite simply, it is easier for them to prove a conspiracy than for the other, “substantive” crimes. A conspiracy is just a plan… however it carnies comparable punishment to a crime that was actually carried out. Less to prove becomes an obvious strategic decision for the prosecution.
“Conspiracy” is defined as “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy…”, Conspiracy always involves two or more people, because a person cannot conspire with themselves. Convictions, pursuant to Federal law, require proof that one of the conspirators committed an overt act in furtherance of the conspiracy.

It is a separate offense from the crime that is the object of the conspiracy, and the conspiracy ends when either the unlawful act has been committed or when the agreement has been abandoned. The statute that deals primarily with conspiracy is 18 U.S.C. § 371, but there are some statutes that deal with conspiracies for specific unlawful acts, the most common being 18 U.S.C. § 1956(h) (money laundering), and 21 U.S.C. § 846 (controlled substances).

Many times, a defendant will be charged with conspiracy along with the actual, substantive crime the defendant is accused of committing. Other times, the defendant will be charged with only one count of conspiracy.

The punishment for a conspiracy is just as serious as if the crime was actually committed.

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