Comparison of Florida and Federal Criminal Defense
Generally, a grand jury consists of between 15 and 23 members of the community
who meet in secret to hear witness testimony and otherwise examine evidence
presented to them by the prosecutor. After the evidence is presented,
the grand jurors are asked to vote on whether probable cause exists to
believe that a particular crime was committed and, if so, by whom. If
the majority of grand jurors vote that probable cause exists, the grand
jury will issue written charges in what is called an Indictment.
The Florida constitution only requires that a grand jury be convened for
anyone charged with a capital offense when the death penalty is being
sought. Unlike federal grand jury proceedings, the judge, defendant, and
the defense attorney may be present for indictment proceedings before
a State of Florida grand jury if they so choose.
Unlike the Florida Constitution, the United States Constitution
requires that nearly all federal criminal charges be reviewed by a grand jury.
Also, unlike the State system, when a federal grand jury meets to hear
testimony and evidence, the only persons in the room are the grand jury
members themselves, the federal prosecutor, the court reporter, and the
witness. There is no judge, and defense lawyers may not be present. A
federal grand jury works in secret.
Generally, the Indictment or Information is a written document containing
the criminal offense(s) the defendant is charged with committing. The
document is signed by the prosecuting authority.
Generally, with the exception of capital felonies, all felony charges proceed
by the filling of an Information. While an Indictment is issued by a grand
jury and must be signed by a State prosecutor, an Information is a formal
criminal charge issued by the prosecutor alone, without the necessity
of obtaining it from a grand jury. It must only be signed and sworn to
by the prosecutor affirming, under oath, the receipt of testimony or evidence
supporting the alleged crime. All other violations such as misdemeanors
and county ordinance violations may only be brought by the issuance of
a notice to appear and certification that the notice was properly served
upon the defendant.
Although nearly all federal criminal cases proceed by Indictment, some
may proceed by an Information. Regardless, under Federal law, the Indictment
or Information must be a plain, concise, and definite written statement
of the essential facts constituting the offense charged and both must
be signed by a federal prosecutor. An Indictment may name just one defendant
or several defendants. Federal misdemeanor charges do not require an Indictment,
but may proceed on an Indictment, Information, Complaint, Citation or
Violation Notice as discussed below.
Arrest Affidavit or Notice to Appear
In Florida, most criminal cases first start with either an arrest affidavit
or a notice to appear in court. An arrest can occur due to a warrant or
due to a law enforcement officer placing one under arrest by having probable
cause to believe a crime was committed. Following an arrest, the accused
must make their first appearance before a judge within 24 hours, and the
process continues from there. Procedures for a notice to appear are different.
A notice to appear is an order written by a law enforcement officer in
lieu of physical arrest and/or booking of a defendant that requires the
defendant to appear in court at a certain date and time. An arresting
officer can generally issue a notice to appear for first-degree and second-degree
misdemeanors when the defendant has been compliant to requests for identifying
information and when the officer determines the defendant is not a threat
to him/herself or the public, a flight risk, or a wanted person. Once
the notice to appear is issued in both circumstances, the defendant is
released from custody. However, failing to appear in court on a notice
to appear will result in a warrant being issued for that person’s arrest.
A criminal complaint is a written statement of the essential facts constituting
the offense charged. It must be made under oath before a magistrate judge
or, if none is reasonably available, before a state or local judicial officer.
A petty offense is generally issued through the means of a citation or
violation notice. These are commonly in the form of a document issued
by law enforcement describing the nature of the offense, any potential
penalty and any payment due, or when to appear in court. Typically, these
offenses do not prescribe for imprisonment and may be settled through
the payment of a fine. However, failing to pay the fine may result in
a summons to appear in court or an arrest warrant being issued.
Once a criminal complaint is filed with the court, or for misdemeanor charges,
a citation or violation notice, the individual named will either be summoned
to appear in court voluntarily or arrested by warrant.
A first appearance is exactly that; a defendant’s first appearance
before a judge on the criminal charge or charges the defendant is facing.
For someone who has been arrested and booked into jail, the first appearance
must take place within 24 hours of the arrest. This involves being brought
before a judge and being served with the criminal charges. The judge then
makes a determination regarding probable cause, ensures that the defendant
has legal counsel, and typically will set or amend the terms of pretrial
release or bond. A person can bond out prior to the first appearance if
a “standard bond” has been set for that offense at the jail
that is affordable. Some offenses require that the accused first see a
judge at first appearance before any conditions of pretrial release have
been set. A criminal defendant does not have to say anything at a first
appearance. If one does choose to speak at a first appearance, it is important
to know it can and may be used against a person in future court proceedings.
However, since a first appearance has been recognized as a “critical
stage” during the criminal process by the U.S. Supreme Court, once
one has been assigned or retains counsel, all questioning by law enforcement
or the prosecutor outside the presence of counsel is strictly prohibited
by the Sixth Amendment.
Generally, at the initial appearance, a criminal defendant will appear
before a United States Magistrate Judge. The Magistrate Judge will ask
the defendant if he or she is the person named in the Indictment, Information
or Criminal Complaint. The Magistrate will then advise the person of the
charge(s) the “maximum” penalty that each charge carries;
and, most importantly, the person’s constitutional rights, including
the right to remain silent and the right to be represented by a lawyer.
If the person desires a lawyer but cannot afford one, the court will determine
whether the person qualifies for a court-appointed lawyer. However, since
a first appearance has been recognized as a “critical stage”
during the criminal process by the U.S. Supreme Court, once one has been
assigned or retains counsel, all questioning outside the presence of counsel
is strictly prohibited by the Sixth Amendment.
Finally, the Magistrate Judge will address the all-important issue of bond.
In many cases, the government will ask that the person be held without
bond. If the government requests that the person be detained, the Magistrate
Judge will schedule a detention hearing. The detention hearing will usually
be scheduled within three to five days of the initial appearance. It is
during the hearing that the Magistrate Judge will decide either to detain
the person or set a bond with conditions of release. If bond is set, the
Magistrate Judge will set either an unsecured or a secured bond which
requires the payment of a penalty should the accused fail to appear.
Generally, a preliminary hearing is where the charges brought against the
person. are examined to establish probable cause. If probable cause cannot
be established, the charges are dropped.
This step is particularly critical with respect to the sufficiency of the
evidence to proceed as charged. At such a hearing, a prosecutor must prove
sufficient evidence exists to establish probable cause that the particular
offense has been committed. Probable cause is not the same standard required
for a conviction at trial, which is proof beyond a reasonable doubt. Probable
cause is a lesser standard that can be shown if a prudent and cautious
person could reasonably believe that the crime was probably committed
by the defendant, given the circumstances and evidence in the case.
If a defendant is charged with an offense other than a petty offense, a
Magistrate Judge must conduct a preliminary hearing unless the defendant
waives the hearing, the defendant is Indicted, the government files an
Information or the defendant is charged with a misdemeanor and consents
to a trial before a Magistrate Judge. The Magistrate Judge must hold the preliminary hearing within a reasonable
time, but no later than 14 days after the initial appearance if the defendant
is in custody and no later than 21 days if the defendant is not in custody.
At the preliminary hearing, the defendant’s lawyer may cross-examine
adverse witnesses and may introduce evidence. However, no objection may
be made to evidence on the ground that it was unlawfully acquired. If
the Magistrate Judge finds probable cause to believe an offense has been
committed and the defendant committed it, the Magistrate Judge will find
so and require the defendant to appear for further proceedings. If the
Magistrate Judge finds no probable cause to believe an offense has been
committed, the Magistrate Judge must dismiss the complaint and discharge
the defendant. However, a discharge does not preclude the Government from
later prosecuting the defendant for the same offense.
Generally, plea bargaining is how the majority of criminal cases are resolved.
It is a process whereby the defense and prosecution evaluate the weight
of the evidence against the defendant, the relative strength or weakness
of each side, the required elements of the offenses charged, and countless
other factors required to reach a resolution. Such resolutions may potentially
reduce the charge(s) against which the defendant, the jail or prison sentence,
term of probation or supervision, fines and forfeiture.
Florida and Federal:
The defense lawyer and the prosecutor may initiate plea bargaining at any
time. Plea bargaining is an unofficial step in the process entered into
by the prosecution and the defendant, and is not a right. It can occur
at any point after arrest. The process usually involves the prosecution
offering a concession to the defendant if he or she pleads guilty. This
could mean the defendant has the option of pleading guilty to a lesser
charge in lieu of the initial charge or the option of pleading guilty
to the original charge for a more lenient potential sentence. Because
this is a voluntary process, either the defense or the prosecution can
withdraw and choose to proceed with a trial at any point.
An arraignment is the hearing when the defendant is formally presented
with his or her charges and directed to enter a formal plea. While the
choices for a formal plea include no contest, not guilty, or guilty, the
typical plea at arraignment is “not guilty”.
An arraignment in Florida is the critical point in the criminal process
that marks whether the case will proceed. This usually takes place within
30 days of an initial appearance. In Florida, a defendant with private
required to appear in person at arraignment if the defendant’s counsel files
a written plea of not guilty.
Like State court, the arraignment is the hearing where an accused is advised
of the formal charges they face, the maximum penalty for each charge,
and their rights, including the right to remain silent. The Magistrate
Judge will also verify that the accused understands the rights that have
been read. By acknowledging this, the accused does not give up any rights.
Rather, the accused is merely indicating their understanding and application.
At this point, except in rare cases, the lawyer will enter a not guilty
plea. The defense lawyer should also request a jury trial and discovery.
Pleading not guilty at this stage of the proceedings preserves ones rights
and cannot be held against them. If, after a thorough investigation and
review of the case, the defendant decides to plead guilty, he or she will
have an opportunity to do so. This decision however should never be made
without a complete and thorough understanding of the case.
The Discovery Process:
Generally, the pretrial discovery process is the stage of the proceedings
where the accused and defense counsel use the rules to gather evidence
from the prosecution or its witnesses’ that is relevant to the crime
charged. Discovery in State cases is far broader then discovery in a Federal case.
After the filing of the charging document, a defendant may elect to participate
in the discovery process, including the taking of discovery depositions,
by filing with the court and serving on the prosecuting attorney a “Notice
of Discovery.” This rule binds both the prosecution and defense
to all discovery procedures. Discovery is an opportunity for the defense
to learn of the evidence relevant to the case. The prosecution must fully
disclose any and all evidence it intends to use against the accused and
any evidence without legal justification. Within 15 days after service of
the Notice of Discovery, the prosecutor shall serve a written Discovery
Exhibit which shall disclose to the defendant and permit the defendant
to inspect, copy, test, and photograph, any such evidence subject to the
rules governing such disclosures. For example, if the defendant is charged
with drug trafficking, the defense attorney may examine the controlled
substance and have it weighed by its own expert. If a defendant elects
to participate in discovery, either through filing the appropriate notice
or by participating in any discovery process, including the taking of
a discovery deposition, the defendant must within 15 days after receipt
by the defendant of the Discovery Exhibit furnished by the prosecutor,
the defendant shall furnish to the prosecutor a written list of the names
and addresses of all witnesses whom the defendant expects to call as witnesses
at the trial or hearing. Also, within 15 days after receipt of the prosecutor’s
Discovery Exhibit the defendant shall serve a written Discovery Exhibit
which shall disclose to and permit the prosecutor to inspect, copy, test,
and photograph the following information and material that is in the defendant’s
possession or control. Either side may also take depositions of witnesses.
The purpose of a deposition is to take a sworn statement, and then use
that statement to contradict or impeach the witness as to their credibility.
A deposition may not be taken for any misdemeanor or traffic violation
without court permission. A deposition is part of the discovery process
and follows the same time frames as allowed by the rules of discovery.
Upon a defendant's request, the government must disclose to the defendant
the substance of any relevant oral statement made by the defendant, before
or after arrest, in response to interrogation by a person the defendant
knew was a government agent if the government intends to use the statement
at trial. In addition, upon a defendant's request, the government
must disclose to the defendant, and make available for inspection, copying,
or photographing, all of the following: any relevant written or recorded
statement by the defendant if the statement is within the government's
possession, custody, or control; and the attorney for the government knows—or
through due diligence could know—that the statement exists; the
portion of any written record containing the substance of any relevant
oral statement made before or after arrest if the defendant made the statement
in response to interrogation by a person the defendant knew was a government
agent; and the defendant's recorded testimony before a grand jury
relating to the charged offense. Also, upon a defendant's request,
the government must furnish the defendant with a copy of the defendant's
prior criminal record that is within the government's possession,
custody, or control if the attorney for the government knows—or
through due diligence could know—that the record exists. Further, upon a defendant's request, the government must permit the
defendant to inspect and to copy or photograph books, papers, documents,
data, photographs, tangible objects, buildings or places, or copies or
portions of any of these items, if the item is within the government's
possession, custody, or control and the item is material to preparing
the defense; the government intends to use the item in its case-in-chief
at trial; or the item was obtained from or belongs to the defendant. The government must also permit a defendant to inspect and to copy or
photograph the results or reports of any physical or mental examination
and of any scientific test or experiment if the item is within the government's
possession, custody, or control; the attorney for the government knows—or
through due diligence could know—that the item exists; and the item
is material to preparing the defense or the government intends to use
the item in its case-in-chief at trial. Depositions in a federal criminal
case are not allowed as a matter of discovery. Rather, such statements
may only be in order to preserve testimony for trial when a witness is
unavailable. However, the court
may only grant the request because of exceptional circumstances and in the
interest of justice. If the court orders the deposition to be taken, it
may also require the deponent to produce at the deposition any designated
material that is not privileged, including any book, paper, document,
record, recording, or data.
Generally, a subpoena is used to order a witness to appear in court with
or without any books, papers, documents, data, or other objects the subpoena
Florida and Federal:
The court may direct a witness to appear and testify, with or without the
production of designated items, in court before trial or before they are
to be offered in evidence. The court may permit the parties and their
attorneys to inspect all or part of any items produced. Refusing to answer
a subpoena is a contempt of court and one refusing to answer may be jailed
for failing to do so.
Pretrial Motions and Hearings
Florida and Federal:
As more information about a defendant’s case is obtained, the defense
lawyer must determine whether any pretrial motions need to be filed. Some
motions can be resolved without the necessity of a hearing. Other motions,
however, may require a hearing before the judge can make a decision. In
some cases, a hearing that includes calling witnesses will be required.
Pleading Guilty or Going to Trial
Florida and Federal:
The decision whether to plead guilty or go to trial is one of the most
important decisions that any criminal defendant will ever make. While
the criminal defense lawyer must offer the accused advice on what to do,
only the accused can decide whether to plead guilty or proceed to trial.
In many cases, the decision to plead guilty depends on the potential benefits
an accused may receive at sentencing if you choose to do so. As the case
proceeds, the defense lawyer must provide the accused with detailed information
about the strength of the case and potential sentence if convicted. If
the accused decides that pleading guilty is in their best interest, a
hearing will be scheduled where the accused can enter a guilty plea. If
the accused decides to take the case to trial, a final pretrial conference
is usually held before trial begins.
Final Pretrial Conference
If a case is going to proceed to trial, a final pretrial conference will
be scheduled. This hearing is scheduled to resolve any last minute issues
that need to be addressed before the trial. During the conference, the
District Court Judge may also review such things as jury selection procedures,
jury instructions, and exhibits.
Trial by Jury (Jury Trial) or Judge (Bench Trial) and Sentencing
Once a plea of not guilty is entered at the arraignment, the criminal case
will proceed to trial. If all other attempts to resolve the case without
a trial in a manner acceptable to all parties do not succeed, the next
step will either be trial by judge or trial by jury. Trial by judge (commonly
called a bench trial) is where one simply appears before a judge to have
both sides of the case argued. This only occurs if the defendant consents.
Trial by jury is more involved, as the jury selection process is an active
process requiring the attention of the prosecution, the defense, and the
court. The trial process then generally progresses in the following order:
- Opening statements
- Government’s case is presented
- Defense cross-examines Government’s case
- Defense's case is presented
- Government cross-examines defense's case
- Closing arguments
- Jury Charge
- Jury Deliberation
For a bench trial, both sides present their case before the judge and then
he or she will make the final decision concerning guilt based on the standard
of beyond a reasonable doubt.
For a jury trial, the defense and the prosecution go through a jury selection
process, make opening statements, present the case by calling witnesses’
or presenting other evidence (although the defendant is not required to
do so), and make closing arguments. The judge then instructs the jury
on the law and the jury deliberates until it either returns a verdict
or certifies it is unable to do so after sufficient deliberation.
In either a bench trial or jury trial, if the verdict is not guilty, or
the case is dismissed, the defendant is given immediate leave of court,
and is free to leave. In the event of a guilty verdict, sentencing is
then scheduled and defendant may or may not be detained until sentencing.
At sentencing, a judge will hear arguments from both sides regarding what
would be an appropriate punishment. The judge will consider statutory
mandatory penalties for the offense, the arguments of both sides, and
other factors and will issue the sentence accordingly.
Like the Florida system, in the Federal system the defendant may elect
to have a bench trial or jury trial. In most cases where a defendant decides
to proceed to trial, a jury trial is preferable. In rare circumstances,
it may not be advisable to have a jury trial, but instead, to have what
is called a bench trial. A bench trial is where the judge decides whether
you are guilty or not guilty instead of a jury. If you desire to have
a bench trial, the court rules provide that (1) you must waive a jury
trial in writing; (2) the government must agree; and (3) the court must
approve. The trial process generally progresses in the following order:
- Opening statements
- Government case is presented by the Assistant United States Attorney
- Defense Attorney cross-examines Government Witnesses
- Defense case is presented by defense attorney
- Assistant United States Attorney cross-examines defense case
- Government Rebuttal Case (if any)
- Closing arguments
- Jury Charge
- Jury Deliberation
If found guilty, the District Judge will order that a presentence report
be prepared and will set a date for sentencing. The District Judge may
detain a defendant even if the defendant was previously released on bail.
At sentencing, a District Court Judge will consider the U.S. Sentencing
Guidelines when imposing a sentence. Federal law also requires the judge
to consider other factors under the Sentencing Mandate 18 U.S.C. §3553.
Unfortunately, the application of mandatory minimum prison terms for many
crimes may deprive the District Court Judge of their discretion.
Attorney Paul Petruzzi has over 22 years of experience solely devoted to
criminal defense litigation. It is important for one to hire an experienced
attorney when charged with criminal offenses. Attorney Paul Petruzzi’s
knowledge and expertise is a vital asset to anyone charged with a criminal
offense. Call today for a free consultation.