If you have been charged with a felony, call 954-766-8810 today for a free consultation from a highly effective Ft Lauderdale criminal attorney.
Arraignment
The arraignment in a felony trial follows a similar process as in a misdemeanor trial. Bail and identity are established, charges are ascertained and the attorney of record is confirmed. Felony arraignments are essentially a formality as very few felony cases are dismissed at arraignment.
Some things the defendant should do after a felony arraignment:
- Acquire qualified legal counsel. Hire the right lawyer!
- Ask the lawyer questions and learn as much as possible about the criminal law process from arraignment to appeal. In the criminal process, the defendant is the one who stands to lose the most. Be certain that the questions are answered properly. Ignorance of criminal law and defendants’ rights often compromises the defense.
- Assist your Fort Lauderdale felony lawyer in preparing the defense by understanding every option available. Look at all available options before reaching a decision.
Remember: A defendant is innocent until proven guilty beyond a reasonable doubt!
Pre-Preliminary Hearing
The pre-preliminary hearing is similar to the pre-trail conference in a misdemeanor case. It is a meeting between the defense and prosecution where they will discuss plea bargain possibility, strengths and weaknesses of the prosecution’s case, and intangible factors of the case, such as the defendant’s character and past criminal history if it exists.
Preliminary Hearing:
At the preliminary hearing, the judge will determine whether sufficient evidence exists to send the case to trial. The judge considers:
- If probable cause exists to believe a crime was committed.
- Whether there is probable cause to believe the person in front of the court is the one who committed said crime. It is very rare, at this point, for the judge to dismiss the case. In fact, the prosecution or judge can add additional charges to the case at this stage. The length of a preliminary hearing varies case by case.
What is a Preliminary Hearing?
- Preliminary hearings are shorter than trials since no fact finding will take place.
- The goal of a preliminary hearing is to screen the prosecution’s case and make sure probable cause exists.
- The preliminary hearing will be conducted in front of a judge without a jury.
- The preliminary hearing does not imply that the defendant is guilty, only that probable cause exists to take the case to trial.
- Neither the prosecution nor the defense will present their whole cases since they want to save their case strategies for trial.
- Questioning of law enforcement officers and other witnesses may occur at this time.
Arraignment in a Superior Court:
When one is charged with a felony, the arraignment must be held in a superior court. Like an arraignment for a misdemeanor, the defendant is arraigned and pleads guilty, not guilty or no contest. The defendant’s identity is confirmed, bail is determined, charges are disclosed and the attorney of record is confirmed.
Pre-Trial Conference
At this conference, plea bargaining will take place. The prosecution may offer alternative sentencing. The initial charge may be changed or the number of felony counts may be dropped.
Pre-trial Conference Expectations:
- The Fort Lauderdale defense attorney presents its case on behalf of the defendant.
- Additional discovery takes place.
- Establishment of sufficient facts.
- Debate regarding sufficient evidence occurs.
- Witness strength and weakness is determined.
Sample motions the defense attorney can file at a pre-trial conference:
- Motion to reduce charges, change venue
- Motion to compel discovery
- Motion to suppress evidence
- Motion to dismiss information and complaint
- Motion for speedy trial
- Motion to modify or reduce bail, strike a prior conviction, preserve evidence, and motion to give a bill of the particulars.
Trial:
A trial by jury is the fact-finding phase of the legal process that takes place in the court room and is the inspection and resolution of the criminal case. At the trial, a decision will be reached as to the innocence or guilt of the defendant. The trial will begin with the prosecution’s opening statement and presentation of his case to support the charges. Then, typically, the charges are refuted by the Fort Lauderdale defense attorney and the defense rests. Closing arguments are then made by both the prosecution and defense. Finally, after being given procedural rules by the judge, the jury meets to discuss and determine the innocence or guilt of the defendant. The jury then submits their verdict and the judge determines sentencing. The judge must decide the type and severity of punishment at this point. At this point, witnesses are generally permitted to make a statement on behalf of the defendant, requesting either a lighter or harsher punishment.
Information Regarding Sentencing:
- Punishment is usually determined by the judge but sentencing guidelines restrict the judge.
- The eighth amendment to the U.S. constitution provides that punishment may not be cruel or unusual.
- No prior criminal history, a respectable public record, and professional or personal responsibilities may persuade the judge to provide a lighter sentence.
- A prior criminal history, use of a dangerous weapon and the severity of the crime committed may, and often does, cause the judge to issue a harsher sentence.
If the defense does not plan on appealing the case, this might be a good time to acknowledge personal responsibility for the crime and regret at having committed it.
Conditions That May Adversely Affect Sentencing:
- Existence of a Previous Criminal Record. A criminal history of a defendant is a significant component to consider when determining his/her sentence. A point system is used by many correctional facilities to determine time deducted by sentences. On the contrary, first time offenders are frequently sent to camps or community centers instead of prisons.
- Enhancements. A deadly weapon used during a crime will incur greater penalties in most states according to their statutes. A crime resulting in severe bodily injury to a victim calls for stiffer punishment as well. In some states, enhancements are considered part of the primary charge and not a separate offense. This is the case with armed robbery.
Appeals
In an appeal, a Fort Lauderdale criminal lawyer may request that a higher court review specific flaws in procedure with the possibility of revoking the lower court’s guilty verdict. It is important to recognize that the appeals process may only begin after the defendant has received the final verdict. Additionally, an appeal may only question the integrity of the procedure of the original trial, not the facts. The timeline of the appeals process varies by state. However, time limits exist in every state and are often less than 30 days. Don’t lose your right to appeal! If you intend to appeal, a notice of appeal should be made immediately.
Sample motions a Fort Lauderdale defense attorney might make in an appeal process:
- Motion for Acquittal
- Motion For A New Trial
- Motion For New Sentencing
- Appeal To a Higher Appellate Court
- Appeal To State Supreme Court
- Appeal To U.S. Supreme Court
Note: In death penalty cases, the appeals process is automatic.
Expungement Process
Expungement is a legal term for sealing or destruction of a criminal record. Not all crimes are eligible for an expungement, such as sex offenses. An expungement of a conviction means the conviction will have not legally occurred. However, in some cases, even an expunged record is still open. This occurs when a defendant is facing new charges and a previously expunged record needs to be reviewed. The expungement process varies by state and cannot occur until one year has passed and the defendant has completed serving the sentence.
Note: An application for a federal job or public office requires the disclosure of all expungements.
Plea Bargaining
Plea bargaining can be used to avoid harsh sentences in favor of an agreed upon lesser sentence. Over 90% of criminal cases end in a plea bargain. For example, in a drug possession case, a judge may be convinced to dismiss the charges if the defendant successfully completes a drug rehabilitation program. Some judges and prosecutors are more open to plea bargaining than others. Plea bargaining enables the judges to move cases through the legal process and allows prosecutors to rack up convictions.
Issues to keep in mind when considering a plea bargain:
- A no contest plea-bargain could result in a criminal conviction and a criminal record.
- A criminal conviction means that future rights and privileges may be lost.
- A “no contest plea” says “I choose not to contest the charges.” Any plea of guilty is a direct admission of guilt.
- In a best case scenario for the defendant, a plea bargain may result in a lighter sentence and shorter case time.
How to plea bargain a good deal:
- The Fort Lauderdale criminal lawyer must show that the defendant’s responsibility for the crime is minimal and that the crime elicited little damage.
- Explain any mitigating circumstances that led to the crime.
- Establish weaknesses in the prosecution’s case, including lack of evidence, witnesses, or factual inconsistencies.
- Establish good character of the defendant so the crime is seen as a departure from normal conduct.
- The prosecution and defense must mutually desire a reasonable settlement.
- The defense must show that the impact on the defendant’s family or dependents should the defendant be imprisoned would be a hardship.
- The prosecutor carries the burden of proof since the defendant is innocent until proven guilty.
- During the trial, the prosecutor must present a case that convinces the judge or jury that the defendant is guilty beyond reasonable doubt.
It is important for a defendant to know that different charges may appear at arraignment than those originally filed by the arresting police officer. An investigator should be hired to strategize a sound plan to put the details in favor of the defendant as cases are won and lost in the details.
The appeals process varies by state. Appeals normally proceed from the Criminal Court to the State Court Of Appeals to the State Supreme Court.
The Fort Lauderdale defense attorney should be managed by the defendant, not the other way around. It is crucial for the defendant to understand what the attorney is doing, and why he/she is doing it, before it is done. The defendant should not wait until after the attorney presents the defense to inquire as to the plan of action.
The defense attorney has several motions he can make use of in the criminal process. For example, a motion to dismiss evidence can be filed at the preliminary hearing if the evidence is insufficient. Also, the defense attorney can file a motion to suppress evidence if there are grounds to suppress physical evidence taken from the defendant.
How Bail Works:
Bail, as an amount of money, is a tool used by the court to ensure the defendant comes back to court when required to do so. It is also a way to get the defendant home during the trial proceedings. The bail hearing is not the time or the place to argue the merits of a case. The judge will consider two factors when setting bail for the defendant:
- Does the defendant represent a danger to the community?
- Is it likely that the defendant will flee?
Any argument by the Fort Lauderdale defense attorney to reduce bail must address both questions.
How to get Bail Reduced?
The defense attorney should:
- Demonstrate that it is unlikely the defendant will repeat the same crime.
- Show that the defendant is not a danger to the community.
- Establish that it is unlikely the defendant will flee. The Ft Lauderdale criminal attorney can present this in various ways: character references, community support, stable employment history, memberships in religious or civic organizations, surrendering the defendant’s passport, agrees to electronic monitoring.
The court can present several bail release options which may include:
- Cash Bail. The defendant must pay the entire amount of bail at once in order to be released and will receive his bail back at the completion of all court appearances.
- Release On Own Recognizance. The judge must believe that the defendant does not pose a dangerous risk to the community if released.
- Surety Bond. A bail agent guarantees to be responsible for the bond if the defendant fails to appear in court.
- Property Bond. A lien, or legal claim over an asset, is placed on the defendant’s real estate property to secure bail. In a case where the defendant is involved in a case with co-defendants, the defense attorney may make a motion for the defendant to sever ties from the co-defendants.
The preliminary hearing can be used as a strategy session since the standard of proof is lower than during the trial itself. The preliminary hearing is used by the judge to assess if there is sufficient evidence to review the case.
The pre-trial conference, as the next step, is a time to introduce evidence, propose motions, identify procedural problems, trade witness lists, and make plea bargains. It is at the pre-trial conference that most cases are plea bargained.
An appeal occurs after the court has come to a decision during trial regarding the guilt or innocence of the defendant. An appeal provides the chance to have a higher court review, and potentially change, the decision of the lower court, or send the case back to re-trial. An appeal can either overturn the courts guilt/innocence decision or alter the level of sentencing.
Unlike a plea-bargained settlement which prevents the case from ever going to trial, a trial introduces risk for both the prosecution and defense as no one knows which side will win. Plea bargaining is preferred as it eliminates the risk for both sides. There are two main types of plea bargains: sentence bargaining and charge bargaining. In exchange for a plea of guilty or no contest by the defendant, the prosecutor may agree to a lighter sentence or may decrease the charges to a less serious crime.
The trial judge determines the sentencing by considering the defendant’s character, criminal history (if any exists), the nature of the crime, and any other factors that might help him/her make a decision. Many courts require a full investigation be prepared by the probation department before the judge determines the defendant’s sentence.
The defendant may ask the court to appoint a public defender at the time of the arraignment if the defendant can demonstrate appropriate financial need. Even if the defendant does not qualify financially, the court may still appoint an attorney.
Remember, it is the defendant’s constitutional right not to testify.
In some states the defense decides whether a trial will be by jury or judge. If this is the case, the defendant should discuss the possible benefits of each with his attorney in order to determine what will be the best option.
If the jury finds the defendant guilty, the defense attorney can immediately begin a sequence of post-trial motions in an attempt to get the judge to grant a new trial or make a judgment negating the verdict and acquit the defendant.
The burden of proving guilt rests, at all times, on the prosecution.
In discovery, the prosecutor must provide the defendant with information about the defendant’s case, including copies of the arresting police officers’ statements and filed reports. This allows the defendant to review the prosecution’s evidence prior to trial.
The Fort Lauderdale defense attorney should thoroughly review a transcript of the entire trial prior to filing an appeal. In an appeal, no new witnesses or new evidence will be considered. During appeal, the defense and prosecution both prepare briefs that the judges review prior to making a decision.
The federal government does not have to honor expungements. Individuals with expunged cases must still disclose the convictions when applying for professional licenses or filing to hold public office.
