The Process

Comparison of Florida and Federal Criminal Defense

Grand Jury

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.

Florida:

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.

Federal:

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.

Indictment/Information

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.

Florida:

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.

Federal:

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

Florida:

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.

Federal:

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.

First Appearance

A first appearance is exactly that; a defendant’s first appearance before a judge on the criminal charge or charges the defendant is facing.

Florida:

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.

Federal:

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.

Preliminary Hearing

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.

Florida:

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.

Federal:

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.

Plea Bargaining 

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.

Arraignment 

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”.

Florida:

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 counsel is not required to appear in person at arraignment if the defendant’s counsel files a written plea of not guilty.

Federal:

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.

Florida:

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 not withhold 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.

Federal:

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.

Subpoenas

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 designates.

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

Federal:

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

Florida:

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
  • Verdict

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.

Federal:

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
  • Verdict

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.

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