southbeachlaw
03-20-2007, 01:04 PM
If recently arrested in Florida you will likely get a notice to appear in court within 21 days of the arrest. What should you do and what will happen? I get this question often enough from folks to post some things on here.
1. IF YOU DON'T GET A NOTICE - If you don't get a notice within 21 days, call the clerk of the court and find out if you have a court date pending. The notice may have been delivered to the wrong address. Though this isn't proper notice and you could have a legal excuse for not showing up, it won't prevent a bench warrant for being issued for your arrest.
2. BE APPROPRIATE - When you go to court, be prompt. Be early rather than late. Dress appropriately. Try to avoid wearing t-shirts, shorts, etc. Dress like you are going to church. First impressions matter with the state attorney and the court. Turn off your cell phone and do not speak in court. Do not bring attention to yourself from the bailiff or other cour personnel.
3. DO YOU NEED A LAWYER? - Maybe, maybe not. At the first appearance called an "arraignment" the state attorney will announce if they are filing charges against you, if they need more time to decide, or what charges they are filing. The judge may ask the state if they have an "offer". The offer is what the state is offering to close the case at that moment. I say at the moment, because sometimes offers change for better or worse. If you can't afford a lawyer and the state attorney has announced that they are seeking jail, a public defender will be appointed to you. Much is said about public defenders not being real lawyers. That they are lazy, etc. This is not true. There are excellent public defenders and bad ones..just like there are good and bad in every profession. Many times the public defender is the most experienced trial lawyer in the room.
If the state is not seeking jail you will not get a public defender appointed to you. You may however hire a private lawyer to represent you. If you don't have a lawyer with you at the first appearance, you may ask for a "continuance" of the arraignment. This is just asking the judge to reset it so you can consult and hire a lawyer.
If this was a first time offense, whether or not you hire a lawyer, the state will probably offer you a pretrial diversion program. This is not a plea bargain, you will not be pleading to anything. This offer "diverts" the case from the system. It is a program usually offered to first time offenders. The pretrial diversion program may involve classes and some other type of special conditions that you need to complete. However, once you complete them the state attorney will drop the charges. If you don't complete them, the case comes back to court and proceeds either to a plea bargain or trial. You don't need a lawyer to have the state offer you a pretrial diversion program.
The advantage of a lawyer, is that the lawyer could examine the case to determine if you have any legal challenges to the evidence or the arrest. Your lawyer may take depositions of police, witnesses in order to determine if you have any legal defenses. If based upon investigation, your lawyer files a motion to suppress the evidence due to the way the police seized it or found it then the the state may not use that evidence against you. Sometimes this is enough to have them drop the case. Also, if you were stopped or detained illegally, then the same would apply to any evidence found as a result of an illegal stop. Sometimes, there is nothing the lawyer can do legally to help your case. This isn't the lawyer's fault, it's just the way the facts play out.
The second tier offer the state may offer you is a WITHHOLD OF ADJUDICATION. This means the court is finding you guilty but withholding adjudication of guilt. This is not technically a conviction, but can be used against you for purposes of establishing punishment in the future if you committ any other crimes or be used as a basis for charging future crimes (habitual traffic offender cases for example - a withhold of adjudication for certain crimes can be used to convict you as a habitual traffic offender). In most cases where a person receives a withhold of adjudication, the case can be sealed as long as the person has never been convicted of any other criminal offenses and otherwise qualifies under Fla. law.
If you have never been in trouble before and the state is asking for an ADJUDICATION OF GUILT do not accept this without seeking the advice of a lawyer. The state is asking that you be convicted. This may have serious implications for you in the future! If adjudicated guilty you will never qualify to have that case or any other cases sealed or expunged! They will remain on your record forever!
IF PUT ON PROBATION - If you take a plea and if you are put on probation, it is extremely important that you comply with the conditions of probation. Any violation of these conditions may result in your being "violated" by the probation officer. This violation could result in you serving time for your original case and may result in you losing your withhold of adjudication judgment. If you lose your withhold of adjudication you will lose your right to have your case sealed after completing probation! Be polite and respectful to your probation officer. If you are a good probationee your probation officer may assist you in getting off probation early! If you are required to report monthly to probation make sure you report. If your probation officer is not in send them a letter/email or have some way to confirm that you have been reporting. Keep copies of all receipts of any payments you may have to make.
CAN I GET MY CASE SEALED OR EXPUNGED? If your case results in a withhold of adjudication, pretrial diversion, or if the charges are dismissed or not filed, then you will likely be eligible to have the case sealed or expunged. Sealing or expunging the case will take the case out of public view and access and it will give you the legal right to deny or fail to acknowledge the case and arrest. There are some exceptions for persons who seek to work with children, the mentally disabled, the handicapped, the elderly, law enforcement applicants, or applicants to the Florida Bar.
You must have successfully completed all your requirements and not have any other criminal cases where you were adjudicted guilty. For more information on record sealing/expungement requriements, visit my office at SealMyRecord.Com. (http://www.sealmyrecord.com)
Nicolas Babinsky, Esq.
1. IF YOU DON'T GET A NOTICE - If you don't get a notice within 21 days, call the clerk of the court and find out if you have a court date pending. The notice may have been delivered to the wrong address. Though this isn't proper notice and you could have a legal excuse for not showing up, it won't prevent a bench warrant for being issued for your arrest.
2. BE APPROPRIATE - When you go to court, be prompt. Be early rather than late. Dress appropriately. Try to avoid wearing t-shirts, shorts, etc. Dress like you are going to church. First impressions matter with the state attorney and the court. Turn off your cell phone and do not speak in court. Do not bring attention to yourself from the bailiff or other cour personnel.
3. DO YOU NEED A LAWYER? - Maybe, maybe not. At the first appearance called an "arraignment" the state attorney will announce if they are filing charges against you, if they need more time to decide, or what charges they are filing. The judge may ask the state if they have an "offer". The offer is what the state is offering to close the case at that moment. I say at the moment, because sometimes offers change for better or worse. If you can't afford a lawyer and the state attorney has announced that they are seeking jail, a public defender will be appointed to you. Much is said about public defenders not being real lawyers. That they are lazy, etc. This is not true. There are excellent public defenders and bad ones..just like there are good and bad in every profession. Many times the public defender is the most experienced trial lawyer in the room.
If the state is not seeking jail you will not get a public defender appointed to you. You may however hire a private lawyer to represent you. If you don't have a lawyer with you at the first appearance, you may ask for a "continuance" of the arraignment. This is just asking the judge to reset it so you can consult and hire a lawyer.
If this was a first time offense, whether or not you hire a lawyer, the state will probably offer you a pretrial diversion program. This is not a plea bargain, you will not be pleading to anything. This offer "diverts" the case from the system. It is a program usually offered to first time offenders. The pretrial diversion program may involve classes and some other type of special conditions that you need to complete. However, once you complete them the state attorney will drop the charges. If you don't complete them, the case comes back to court and proceeds either to a plea bargain or trial. You don't need a lawyer to have the state offer you a pretrial diversion program.
The advantage of a lawyer, is that the lawyer could examine the case to determine if you have any legal challenges to the evidence or the arrest. Your lawyer may take depositions of police, witnesses in order to determine if you have any legal defenses. If based upon investigation, your lawyer files a motion to suppress the evidence due to the way the police seized it or found it then the the state may not use that evidence against you. Sometimes this is enough to have them drop the case. Also, if you were stopped or detained illegally, then the same would apply to any evidence found as a result of an illegal stop. Sometimes, there is nothing the lawyer can do legally to help your case. This isn't the lawyer's fault, it's just the way the facts play out.
The second tier offer the state may offer you is a WITHHOLD OF ADJUDICATION. This means the court is finding you guilty but withholding adjudication of guilt. This is not technically a conviction, but can be used against you for purposes of establishing punishment in the future if you committ any other crimes or be used as a basis for charging future crimes (habitual traffic offender cases for example - a withhold of adjudication for certain crimes can be used to convict you as a habitual traffic offender). In most cases where a person receives a withhold of adjudication, the case can be sealed as long as the person has never been convicted of any other criminal offenses and otherwise qualifies under Fla. law.
If you have never been in trouble before and the state is asking for an ADJUDICATION OF GUILT do not accept this without seeking the advice of a lawyer. The state is asking that you be convicted. This may have serious implications for you in the future! If adjudicated guilty you will never qualify to have that case or any other cases sealed or expunged! They will remain on your record forever!
IF PUT ON PROBATION - If you take a plea and if you are put on probation, it is extremely important that you comply with the conditions of probation. Any violation of these conditions may result in your being "violated" by the probation officer. This violation could result in you serving time for your original case and may result in you losing your withhold of adjudication judgment. If you lose your withhold of adjudication you will lose your right to have your case sealed after completing probation! Be polite and respectful to your probation officer. If you are a good probationee your probation officer may assist you in getting off probation early! If you are required to report monthly to probation make sure you report. If your probation officer is not in send them a letter/email or have some way to confirm that you have been reporting. Keep copies of all receipts of any payments you may have to make.
CAN I GET MY CASE SEALED OR EXPUNGED? If your case results in a withhold of adjudication, pretrial diversion, or if the charges are dismissed or not filed, then you will likely be eligible to have the case sealed or expunged. Sealing or expunging the case will take the case out of public view and access and it will give you the legal right to deny or fail to acknowledge the case and arrest. There are some exceptions for persons who seek to work with children, the mentally disabled, the handicapped, the elderly, law enforcement applicants, or applicants to the Florida Bar.
You must have successfully completed all your requirements and not have any other criminal cases where you were adjudicted guilty. For more information on record sealing/expungement requriements, visit my office at SealMyRecord.Com. (http://www.sealmyrecord.com)
Nicolas Babinsky, Esq.
