FAQs

Although we provide general information on our website, it does not constitute legal advice. If you are in need of legal assistance, the best way to navigate your case is to confer with an attorney. Please do not hesitate to contact us today to schedule a free consultation. The Schisani Law Firm, P.A. is here for you every step of the way.

What is the general progress of a criminal case in Florida?

Arrest/Notice to Appear → First Appearance → Arraignment → Pre-Trial Conference → Trial/Plea Hearing

What is First Appearance?

Generally, every person arrested of a crime shall be taken before a judicial officer within 24 hours of arrest. At a first appearance hearing, the judge will tell the accused what they are being charged with, inform the Defendant of their right to remain silent (and that anything they say may be used against them), and will tell the accused that they have a right to counsel (and that an attorney will be appointed to them if they cannot afford private counsel). Additionally, the court should inform the Defendant of their right to communicate with family, friends, and counsel. Conditions of release will be set at this time. Generally, a probable cause (PC) determination is conducted at First Appearance; however, by Florida law, a PC determination must be complete within 48 hours of arrest for defendants in custody. This can be somewhat longer for out of custody defendants (upon showing extraordinary circumstances). The rules for First Appearance are governed by Florida Statute 3.130.  

What is Arraignment?

At an arraignment hearing, the defendant is informed of the charges against him or her and has the option to enter a plea of guilty, no contest, or not guilty. It is noteworthy to indicate that this is not a hearing where evidence is presented or where the merits of the case are heard. If the accused is represented by an attorney, the Florida Rules of Criminal Procedure allow counsel to waive their client’s arraignment by filing a written plea of not guilty prior to the scheduled arraignment date. If the defendant is unrepresented, they must personally appear at their scheduled hearing date and time. If an unrepresented defendant plans on hiring private counsel, they should indicate their intention to the court and enter a not guilty plea at that time.

What is a Pre-Trial Conference hearing?

Depending on the severity of the charges and the complexity of the case, the life of a criminal case can last months or even years. Before a case is ready for trial, there are many things that happen in-between or beforehand. This is typically referred to as the discovery phase where defense counsel is requesting and reviewing evidence, filing pre-trial motions, scheduling hearings, conducting depositions, among other matters. At a criminal defendant’s pre-trial hearing (pre-trial conference), defense counsel will meet with the judge and prosecuting attorney to discuss the progress of the case, among other matters. At this time, matters to be discussed include, but are not limited to, whether counsel is ready for trial or will be requesting a continuance, frequently will advise the court of any pre-trial motions that will need to be filed and heard, inform the court of any missing discovery that was not turned over by the State, updating the court of any experts that will need to be hired (and allowing time for said expert to analyze the evidence for the specific issue), advising the court of any depositions that will need to be conducted, the dates scheduled, and the time needed to complete said depositions, among other important topics that may need to be discussed. As you can see, there are a lot of things that go into criminal cases, especially charges that are significant such as murder, trafficking, and RICO.

What are the methods of charging a criminal defendant?

A person can be charged by an indictment, information, or notice to appear. The way a person is charged is largely determined by the crime.

What is an indictment?

An indictment is a formal charge made by a grand jury. It can be used for any crime, but it must be used for capital offenses (e.g. first-degree murder).

What is an information?

An information is filed by the prosecuting attorney and is the formal charging document. All criminal charges can be completed by an information except capital offenses. An indictment must be used for capital offenses.

What is a notice to appear?

Instead of arresting a person, a law enforcement officer can issue said person a notice to appear in court. A notice to appear is typically used for low level crimes such as misdemeanor offenses.

Typically, how long does the prosecution have to file charges against a criminal defendant?

Under Florida law, formal charges must be filed within 30 days of an arrest. If the prosecution can show good cause, they can extend the time an additional 10 days (40 days total). If the State cannot show good cause, the accused must be released on the 33^rd day.

I was just arrested for a crime. Am I entitled to a bond?

Article I Section 14 of the Florida Constitution governs “Pre-Trial Release and Detention.” Under Article I Section 14, “unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime… shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.” Thus, if a defendant is charged with a capital or life offense, they can be held at First Appearance. A person with these types of charges should hire counsel and request an Arthur hearing. Note: the standard of proof for this particular hearing–“proof of guilt is evident or the presumption is great”–is a much higher standard than the standard required at trial (beyond a reasonable doubt).

Am I entitled to a bond if I am out on probation and commit a new crime?

No. An arrest warrant will be issued and you will likely be held without a bond. However, hiring private counsel can assist you with getting a bond by filing a bond motion and scheduling a hearing. Although you will not be entitled to a bond, the judge has discretion to issue you a bond. Factors the court may consider include ties to the community, education, work, community service, age of the accused, criminal history, including prior violent acts, whether the Defendant is a threat to the community, prior failed court appearances, among other aspects. You will want to do your homework to hire the best attorney to argue on your behalf.

What is discovery?

Discovery is the formal process of exchanging information between the parties about the evidence and witnesses that will be presented at trial. Discovery allows the State and defense to know before the commencement of trial what evidence may be presented. It is designed to prevent “trial by ambush,” where a party does not learn of the other’s evidence until the trial, at which point it’s too late. Both the State and the defense engage in discovery. If the prosecution finds exculpatory evidence—i.e. any evidence that may prove a defendant’s innocence—and that evidence is material to the case, the State has a Constitutional duty to disclose it to the defense. If the prosecution fails to disclose evidence materially favorable to the accused, it is considered a Brady violation. Discovery examples include police reports, names of witnesses, depositions, photographs, blood samples, test results, handwriting samples, among others. The rules of discovery are governed by Florida Rules of Criminal Procedure 3.220.

As a criminal defendant, will I automatically receive the discovery in my case? Is there something I need to do to receive my discovery?

After formal charges have been filed, the defendant may elect to participate in the discovery process, including the taking of depositions, by filing with the court and serving on the prosecuting attorney a “Notice of Discovery,” which shall bind both the State and defense to all discovery procedures contained in the discovery rules. When you hire private counsel, they typically do this on behalf of the client, which initiates the discovery process. Once the prosecutor’s discovery is received, a criminal defendant may inspect, copy, test, and photograph the material disclosed and within the prosecution’s control. Please see Florida Rule 3.220 for more information.

When must the prosecution provide the defendant discovery?

Within 15 days after service of the Notice or Demand for Discovery.

What is a deposition?

Depositions are a part of the discovery process; and put simply, are a “question and answer” session that is recorded by a court reporter. The deponent, or the witness being questioned, is sworn in, much like a witness testifying at trial. Because the deponent is placed under oath, they may face serious consequences for failing to answer questions truthfully. Depositions can be a powerful tool for the defense team—if used the right way. It allows counsel to get a witness’s version of the events on the record, so they cannot change it later if the case goes to trial (the deposition transcript can be used to impeach a particular witness at trial); to gather more information about what knowledge a witness has; to discover or expose holes in the prosecution’s case; among other reasons. Typically, defense counsel will ask the witness questions first, followed by the prosecutor—if they so choose. Once the deposition concludes, the court reporter will type out a transcript of the questions and answers, and all parties may receive copies. The deponent has the opportunity to review the record and make minor corrections, but generally speaking, the court reporter’s version will be the prevailing version. In the state of Florida, only defendants charged with a felony are permitted to take depositions of the State’s category A witnesses. Other witnesses that are less significant may be deposed with the showing of good cause and the judge’s approval. As for misdemeanor cases, good cause must be shown to depose any witness.

What is speedy trial?

In the state of Florida, the speedy trial rule is laid out in Florida Rule of Criminal Procedure 3.190. Under said rule, every person charged with a crime shall be brought to trial within a certain time from the date of arrest, unless the accused waives their right to a speedy trial. For misdemeanor offenses, it is within 90 days. For felony crimes, it is within 175 days. In most cases, this timeframe is insufficient to adequately prepare a defense, as there may be depositions to be conducted, motions to be filed and heard, obtain all the discovery/evidence from the prosecution, among other sufficient reasons.

What is a motion?

A motion is an application to the court made by defense counsel or the prosecution, requesting the court to make a decision on a particular issue before the commencement of trial. Essentially, a party is moving or requesting the judge to do something relevant to the case. Only the judge can decide the outcome of a motion. Common pre-trial motions include: motion to continue, motion to suppress, motion in limine, motion to dismiss, among a myriad of other motions.

What is a Nolo Contendere (No Contest) plea?

At a plea hearing, if a defendant chooses to resolve their case they can either plead guilty or nolo contendere (no contest). By entering a no contest plea, this essentially means the individual is not admitting nor denying guilt, but simply wants to resolve the matter because it is in their best interest. Unlike a guilty plea, a no contest plea cannot be used as an admission in a civil proceeding.

As it pertains to criminal law, what is the difference between circuit court and county court?

If you are charge with a felony offense(s) or you have a felony charge and misdemeanors that are properly joined with said felony, then the matter will be heard in circuit court. County court is used for misdemeanor offenses.

My case was not dismissed, and I do not wish to resolve my case with a plea agreement. I wish to exercise my right to a trial. What is the difference between a bench trial and a jury trial?

A bench trial, or non-jury trial, is only heard in front of the judge—there is no jury. The judge will determine whether a crime was committed, and whether the defendant is criminally responsible for the crime. It is typically seen with minor misdemeanor cases where the primary issue to be determined is a legal argument. A bench trial is only allowed by mutual agreement between the prosecuting attorney, defendant, and the judge.

In a jury trial, the judge will preside over the courtroom proceedings, while six or more persons in the community are selected as jurors to hear the evidence presented against the defendant. The jury decides whether the defendant is guilty or not of the crime(s).

What is Voir Dire?

Voire Dire is fancy language for jury selection. In jury selection, a pool of citizens (around 25-30 persons) from the community are questioned by both the State and defense to determine bias or prejudice. Only a small number of individuals will be selected to sit on the jury panel for trial.

In a criminal case, how many jurors are involved with a jury trial?

For a typical criminal case, six (6) jurors will decide a criminal defendant’s fate (with one alternate). If it is a capital case, the number is increased to 12 jurors.

What is the typical progress of a criminal jury trial?

Address Pre-Trial Matters with Judge & Prosecuting Attorney → Jury Selection (Voir Dire) → Prosecution’s Opening Statement → Defense’s Opening Statement (may be reserved for the beginning of Defendant’s Case) → Prosecution’s Case-in-Chief → Defense’s Case → Prosecution’s Rebuttal Case (if they elect to rebut) → Closing Arguments (Prosecution first, then Defense’s reply, then Prosecution’s rebuttal). Note: in capital cases, there is an additional penalty phase where the sides call witnesses and present evidence.

Who carries the burden of proof at trial?

The State (i.e. prosecution) must prove beyond a reasonable doubt that the defendant is guilty of the crime of which they are charged to support a conviction at trial. It is the State’s burden. The defendant does not need to present anything to prove his or her innocence. Every criminal defendant is innocent until proven guilty.

What are some constitutional rights a defendant has?

• the right to remain silent, including not to have that fact considered by the judge or jury at trial;
• the right to testify at trial, including having said testimony considered by the same standards as other witnesses;
• the right to an attorney, including the right to have an attorney appointed if the defendant cannot afford one;
• the right to be presumed innocent until proven guilty beyond a reasonable doubt;
• the right for the defendant to call their own witnesses and have those witnesses subpoenaed by the court;
• the right to confront and cross examine witnesses at trial;
• the right to have a court reporter make a complete record of the court proceedings;
• the right to appeal any harmful error to a higher court;
• the right to appeal, in writing, the judgment and sentence imposed by the judge (the defendant has 30 days to file in writing);
• the right to a jury trial;
• the right to a public trial;
• the right to a speedy trial;
• the right to not be tried twice for the same criminal offense (double jeopardy);
• among other rights.