Anatomy of a Criminal Case


A law enforcement officer must have probable cause to believe a crime has been committed in order to make an arrest.


Misdemeanor Warrantless Arrest

Ordinarily, for a police officer to make a misdemeanor arrest without an arrest warrant, the misdemeanor must have been committed in the officer’s presence.

Numerous exceptions, however, to this general rule exist.  (Fla. Stat. § 901.15)  An officer may lawfully arrest someone regardless of whether the misdemeanor was committed in his or her presence in the following instances:

  1. An assault on any of the following:
  • A law enforcement officer
  • A firefighter
  • An emergency medical care provider
  • A public transit employees or agents
  • Other specified officers as set forth in 784.07
  • Employees of mental health facilities receiving involuntary treatment
  1. A battery upon another person under 784.03.
  2. Child Abuse:
  • Any act of child abuse under 827.03, including aggravated abuse, and neglect of a child
  • Luring or enticing a child ( Stat. § 787.025).
  1. Concealed Weapon ( Stat. § 790.01).
  2. Criminal Mischief, including graffiti ( Stat. § 806.13).
  3. Disorderly Conduct on the Premises of a Licensed Establishment:
  • Any a breach of the peace or disorderly conduct as defined in 877.03 on the premises of an apartment or short-term hotel if the accused created a threat to the life or safety of others.
  1. Domestic Violence ( Stat. § 741.28).
  2. Possession of not more than 20 grams of
  3. Exposure of Sexual Organs(“Indecent Exposure”) ( Stat. § 800.03).
  4. Loitering and Prowling ( Stat. § 856.021).
  5. Possession of Weapon by a Specified Person:, such as a person subject to an injunction for protectionagainst committing acts of domestic violence, stalking, or cyberstalking under 790.233.
  6. Racing on Highways ( Stat. § 316.191).
  7. Sexual Cyberharassment (“Revenge Porn”) ( Stat. § 784.049).
  8. Stalking ( Stat. § 748.048).
  9. Trespass at an Airport ( Stat. § 810.09).
  10. Trespass on School Grounds( Stat. § 810.097).
  11. Traffic Crimes discovered as part of a crash investigation, which includes any offense committed under the provision of Chapter 316, State Uniform Traffic Control, which includes DUIs or Chapter 322 for drivers’ licenses.  ( Stat. § 316.645).
  12. Theft ( Stat. § 812.015).
  13. Vessel Safety: any violation of a safety zone, security zone, regulated navigation area, or naval vessel protection zone ( Stat. § 327.461).
  14. Violation of Domestic Violence Pretrial Release (Fla. Stat. §§ 047 & 741.28).
  15. Violation of a Domestic Violence Protective Order Injunction:
  • Any violation of an injunction for protection against domestic violence ( Stat. § 741.31)
  • Any criminal act under 784.047 (assault, battery, culpable negligence) for violating protective injunctions entered pursuant to § 741.30
  1. Violation of Other Protective Injunctions:
  • Any criminal act under § 784.046 for violation of repeat violence, sexual violence, dating violence for a protective injunction, or a foreign protection order accorded full faith and credit pursuant to § 741.315 which provides for recognition of foreign protection orders

Misdemeanor Notice to Appear

In some instances and with certain misdemeanor charge, an officer will not arrest a suspect, but rather issue him or her a document called a “Notice to Appear” and this works (and looks) just like a traffic citation does – right on the Notice it gives you a court date, which will be an arraignment.  An officer won’t issue a Notice to Appear if:

  1. The accused refuses to sign the notice, identify him- or herself, or supply required information;
  2. The accused constitutes an unreasonable risk of bodily harm to him- or herself or others;
  3. The accused has no ties with the jurisdiction or likely won’t respond to the notice;
  4. The officer suspects that the accused may be wanted; or,
  5. It appears that the accused has violated a notice, summons or release condition in the past

Misdemeanor Summons

In other instances, often in theft cases, the accused will only learn about the charges against them through a Summons.  A summons is a legal document that an individual accused of a crime receives in connection with a criminal matter.  It informs the individual of the charges and requires his or her presence in court on and at a specific date and time.  It is a court order, so it should not be ignored.  If an accused ignores the summons, then the judge will often issue an arrest warrant.


Felony Arrests

An officer does not need to be present during the commission of a felony in order to lawfully arrest a suspect for a felony.  Instead, the officer must have probable cause to: (1) believe a crime has been committed; and, (2) that the suspect committed it.  Still, in some instances the officer will not make an arrest and will seek further investigation.  Of course, law enforcement can always arrest a suspect pursuant to a lawfully issued arrest warrant.


If the police arrest a suspect, they take that suspect to jail.  Within 24-hours of the arrest, the accused with appear before a judge or a magistrate at what is termed “First Appearance”.

Here, unless law enforcement arrested the defendant pursuant to an arrest warrant, two things typically happen.  First, the judge makes a determination as to whether law enforcement had probable cause to arrest the defendant.  (This determination must happen if law enforcement completed all of the necessary paperwork)  Second, the judge determines the release terms of the accused.

Virtually all persons in custody are entitled to release on reasonable conditions.  In fact the only defendants that are not, are those accused of capital or life offenses and there also exists proof evident presumption great.

There are numerous types of pretrial release conditions:

  1. Personal recognizance of the defendant
  2. Execution of an unsecured appearance bond
  3. Placing the D in the custody of a designated person or organization agreeing to supervise him
  4. Placing restrictions upon work, hours outside the house, drug testing, and travel
  5. Execution of a bond with sureties
  6. Deposit a cash bond with the court
  7. Imposing any reasonable condition deemed necessary to assure D’s appearance

Once the First Appearance judge imposes the pretrial release conditions, the prosecution, at any time, and only on three hours notice, may apply to have those conditions modified upon a showing of good cause.  This typically would happen before the judge trying the case but could happen with the First Appearance judge who initially imposed the conditions, the Chief Judge of the circuit where the case will be tried, or a different First Appearance judge than the one that initially set the conditions whi has been authorized by the initial First Appearance judge.

If a probable cause determination does not occur at the First Appearance, the Defendant THE NON-ADVERSARY PROBABLE CAUSE DETERMINATION (if it does not happen at first appearance)]


BRINGING FORMAL CHARGES                                                                                                                                                                                                                               

Summary of Charging Instruments

After the arrest, the prosecutor – which is the same thing as the “State” or the “State Attorney’s Office” – reviews the case to determine whether the State will formally charge the accused.  In county court on less serious charge this can occur by docket entries, affidavits or notices to appear.  Similarly, certain traffic offenses, such as DUI, are charged by citation – that is, after the officer makes the arrest and files the traffic ticket with the clerk, the accused is formally charged.  Certain crimes, such as capital crimes require an Indictment by a Grand Jury.

Typically, however, most formal charges in Florida begin with the State Attorney’s Office – a.k.a. the prosecution – through the filing of an “Information”.

Criminal Information

In Florida, the prosecution can formally charge an accused through the filing of an Information. If the prosecution files an Information with the Clerk of Court, the Clerk sets the case for an for an Arraignment. If the prosecution opts not to pursue formal charges, it files either a “No Information” or a “Letter of Release”, which ends the prosecution.

In deciding whether or not to pursue formal charges the State Attorney’s Office reviews the evidence – at this stage typically police reports – and assesses whether the Office has a “reasonable likelihood of successful prosecution.”

If the prosecution files misdemeanor charges, the defendant receives a summons to appear in court for an arraignment (by mail).  If the prosecution files felony charges, a court issues an arrest warrant for the defendant.

An adept defense attorney has several ways to attack an Information.  First, an Information can be so vague and lacking in detail that the defense cannot adequately defend the case and therefore seek a dismissal.  Second, the defense can seek a “Motion for a Statement of Particulars” which typically asks the State to disclose the place, date, and specific facts of the charged offense.

Adversarial Probable Cause Determination for Defendant’s in Custody

There is an interesting interplay between the rules of pretrial release and those of formally charging an in-custody defendant who has not been formally charged with a crime.  If the State does not formally charge a felony defendant who is detained within 21 of arrest, the defendant is entitled to what is called an “Adversarial Probable Cause Determination”.  This is a hearing where a judge whether probable cause exists.  It is an evidentiary hearing with witnesses, direct and cross examination, and lawyers.  The subsequent filing of formal charges after this 21-day window does not eliminate this right.

There are several consequences to the hearing.  If the judge finds no probable cause, the judge must release the defendant on his or her own recognizance.

If the judge finds probable cause, the defendant’s status does not change, but the clock does not stop clicking. On day 30, the judge must order that the defendant be released on his or her own recognizance on the 33rd day unless the State either formally charges the defendant by that day or shows good cause.  Still, by the 40th day unless the State has formally charged the defendant, the defendant must be released from custody on his or her own recognizance.



If the State files formal charges, the Clerk sets the case for an arraignment approximately 30-45 days later.  At an arraignment, either the court or the prosecutor formally notifies the defendant of the charge or charges, and the defendant enters a plea.  There defendant can plea in one of three ways: not-guilty, guilty, or no contest.

In most cases, if the defendant retained a defense lawyer prior to the arraignment, the lawyer files a written plea of not guilty on the defendant’s behalf, which waives the defendant’s appearance at the arraignment and the case gets reset for another hearing.  is set, by the clerk, for a “pre-trial” or “disposition” hearing.



Written Discovery

Typically, after the arraignment, or waiver of it, a defense attorney will file a “Demand for Discovery”.  If requested, within 15 days, the State must disclose:

  1. Names and addresses of all persons known to have relevant information
  2. Statements by any witnesses
  3. Any written or recorded testimony by the accused
  4. Whether the State has any information provided by a confidential informant
  5. Tangible objects or papers obtained from the accused
  6. Bugging, wiretapping, or search or seizure evidence
  7. Reports of experts
  8. Papers or objects not obtained from the accuse but to be used by prosecutors
  9. Any exculpatory information, regardless of whether D has initiated discovery

In return, the defendant has reciprocal obligations.  He or she must disclose:

  1. Statements by witnesses other than D
  2. A witness list
  3. Expert reports
  4. Papers or objects he plans to use at trial

When the State serves the defendant with its discovery, the State almost always demands the defendant to disclose whether he or she will be raising an alibi defense.  If so the defendant, must disclose within 10 days of the demand:

  1. The location of the alibi
  2. The names and addresses of any alibi witnesses

If the defendant replies with this information, the State has five days to disclose any rebuttal witnesses to the alibi defense.

  1. A witness list
  2. Expert reports


Unlike most states, Florida allows defendants in all felony cases, and in misdemeanor cases upon a showing of good cause, to depose witnesses and alleged victims in criminal cases.  Depositions are a very powerful investigative tool that allows the defense to lock individuals into testimony.

Pretrial Motions

Depending on the facts of a specific case, an adept defense attorney


Motion to Suppress


Motion to Dismiss

A Motion to Dismiss, often called a “C4 Motion” requests a trial court to end a criminal prosecution because of a legal or technical defect.  Some reasons for filing a Motion to dismiss include double jeopardy, discovery violations, prosecutorial misconduct, prosecutorial immunity, due process violation, unconstitutionality of the law, speedy trial expiration, the prosecution violates the statute of limitations, and legal insufficiencies in the indictment or information.

When a defendant properly raises and establishes one of these defenses in a Motion to Dismiss, the trial court must dismiss the charges, thus ending the prosecution.

A Motion to Dismiss has nothing to do with the underlying facts of the case.  In fact, a proper Motion to Dismiss, which must be in writing, should, in order not to be denied, include a statement that the material allegations of the case are not disputed. 

If, for instance, a suspect is arrested for, and charged with, DUI, but through discovery and depositions, the defense learns that no one can physically place the defendant behind the of the car, a trial court would grant a properly filed Motion to Dismiss.  In this situation, the charges are legally defective as one of the elements of the crime – that the defendant drove – cannot be proven by the State.

The State has two ways to respond to a properly filed C4 Motion: a Traverse or a Demurrer.

In a Traverse, the prosecutor must either admit or deny each of the factual allegations in the Motion to Dismiss, and if necessary, present additional facts.  If the prosecutor specifically denies in good faith any of the defendant’s factual allegations, the trial court must deny the Motion to Dismiss.  Moreover, the prosecutor must swear to the Traverse.

In a Demurrer, the prosecutor does not specifically deny any of the facts in the Motion to Dismiss, but instead argues that the facts presented amount to a prima facie case of the defendant’s guilt.


Joinder and Severance

Joinder typically occurs when the State tries to join, or combine, charges or defendants into one case.  Severance typically occurs when the defense attempts to sever, or separate, charges or defendants into multiple cases.

The State, under the right circumstances, can join certain offenses into one case if the different offenses are based on the same transaction or series of transactions.

The State may similarly join defendants into one case in one of two ways.   If each defendant is charged in each count, then the State may join the defendants.  Similarly, if each defendant is charged with conspiracy and some of the defendants are charged with the substantive offense, or the offenses are all part of a common scheme or plan, the State may join the defendants.

A defendant has several ways to sever offenses and defendants.  First, if the State improperly joined offenses or defendants, the defense has a right to sever.  Second, even if the State properly joined offenses or defendants the defense may, prior to trial, sever if severance would be appropriate to promote fair proceedings.  If the defense hopes to sever offenses or defendants during trial, it must shoe that severance is necessary to promote fair proceeding.


Calendar Calls and Other Pretrial Hearings

Prior to trial, the judge will hold a series of pretrial hearing called calendar calls in the regular course of the case.  These hearings are where the judge monitors the progress of the case, such as compliance with discovery obligations, scheduling of depositions, etc.) and asks the parties if they are ready for trial.



When a defendant exercises his or her right to a jury trial, then the court sets a trial date.

Jury Selection

The trial begins with jury selection.  Jury selection starts with voir dire.  During voir dire, the lawyers and the court question prospective jurors on the jury panel.  After voir dire the parties can challenge potential jurors in one of two ways.

The first challenge is one “for cause”.  A “four cause” challenge is a challenge based on something the potential juror said during voir dire that indicates that he or she is prejudiced and cannot fairly judge the case.  Both sides have an unlimited number of “for cause” challenges.  Importantly, if the trial court denies a “for cause” challenge, in order to preserve the challenge for appeal, the party denied the challenge must exhaust all preemptory challenges, request more challenges, and have this request denied, and finally identify specific jurors it would exclude if the court allowed more preemptory challenges.

The second challenge, thus, is a preemptory challenge.  These are challenge based on anything other than being a member of one of the Equal Protection Clause’s suspect and semi-suspect classifications.  In other words, these challenges can be based on anything other than race, national-origin, gender, or other such classifications.  In a capital case, the State and the defendant get 10 preemptory challenges.  In other felony, the number is reduced to six.  In misdemeanors, it is four.  Regardless of the case, each defendant gets one preemptory challenge for the alternate juror pool.  Multiple defendants in one case each get the number of preemptory challenges they would each have if tried alone.  Similarly, defendants charged with multiple charges get the number of preemptory they would receive for the most serious crime.

Trial Procedure

The trial begins with the State giving its opening, typically followed by the defense.  The defense, however, can wait to make an opening statement until the State rests.  After opening statement(s), the State puts on its case through by introducing physical and testimonial evidence.

Once the State rests, the defense almost always makes a Motion for Judgment of Acquittal, alleging that the evidence that the State presented, viewed in a light most favorable to it, failed to establish a prima facie case of all the elements of the offense.  In other words, the State did not prove the elements of a crime, and no reasonable juror would convict.

The defense is then given the opportunity to present its case.  If it does put on a case, it typically does so in one of two ways.  One, it can present evidence that negates the elements of the charged offense.  Two, it can raise any of severable affirmative defenses.  If the defense presents a case, the State may try to rebut the issues raised by it.

After both sides have rested, the defense typically renews its it Motion for Judgment of Acquittal, only now, the defense must show that “reasonable minds cannot differ”.

Before the judge charges the jury – that is, before reading the jury the instructions – he or she will typically have a “Charge Conference” to discuss the instructions.  Once the court completes this step, it then instructs the jury.  The court has broad discretion over the instructions it chooses to give, however a nonstandard instruction that misleads the jury, is reversible error.

Jury Deliberations and Verdict

Once the jurors begin deliberations, they chose a foreperson, and then begin deliberating based on the evidence.  Juries can typically take items into the deliberation room, such as verdict forms, a copy of the charges, written copies of the jury instructions and most physical items admitted into evidence.  Should new evidence arise during deliberations, the appropriate remedy is a new trial.

If the jury is deadlocked, the court may grant additional jury instructions.   Similarly, jurors may request additional instructions, and the judge may give them provided notice is given to both sides.  The jury can also request to hear or view evidence again.

Returning the Verdict

A jury verdict must be unanimous.  The jury must return a verdict on each count.  Either side, or the judge, can request a polling of the jury.  The judge must not comment on either the evidence or the verdict.


All persons after being adjudicated guilty may be released pending appeal or review of the case by the trial court, except if they are convicted of a felony and they either have a prior felony conviction, or they have other felony charges pending.

Post-Trial Motions


Motion for a New Trial

A Post-Trial Motion for a New Trial with the original trial court must be made within 10 days of the verdict in noncapital cases.  In non-death penalty cases, after 10 days, the original trial court loses jurisdiction over the matter.

A new trial is mandatory if it is evident the jury verdict resulted from a coin flip, or similar arbitrary process, there is newly discovered evidence that would likely impact the outcome, or the verdict is contrary to law or the weight of the evidence.

In certain circumstances, the defendant must show prejudice for the court to grant him or her a new trial.  Such is the case when they jury receives evidence not presented in court, the jurors separated without permission of the court during deliberations, a juror or the prosecutor engaged in misconduct, the judge ruled incorrectly on the law during the trial, the judge gave an erroneous jury instruction, or the Defendant did not receive a fair trial.

In capital cases where the State seeks the death penalty, a motion for a new trial (or for a new penalty phase hearing) may be made within 10 days after the court issues its written final judgment of conviction and sentence of life imprisonment or death. If timely filed, the motion may be amended within the initial 10-day period without leave of court. Written motions for a new trial are filed with the clerk, must state the specific bases upon which the defendant seeks relief, and a copy must be served on the state attorney.  The court sets a hearing sometime after the defense files its motion.

Motion in Arrest of Judgment

This Motion, though rare, works like a delayed motion to dismiss.  It will be granted if the jury convicts a defendant for an offense for which the defendant could not be convicted under the charging instrument in the case.

Under Florida law, a court may grant a motion for arrest of judgment only on one or more of the following grounds:

(a) the indictment or information on which the defendant was tried is so defective, it will not support a judgment of conviction;

(b) the court is without jurisdiction of the cause;

(c) the verdict is so uncertain it does not appear therefrom that the jurors intended to convict the defendant of an offense of which the defendant could be convicted under the indictment or information under which the defendant was tried; or,

(d) the defendant was convicted of an offense for which the defendant could not be convicted under the indictment or information under which the defendant was tried.

The time limitations for filing, and amending, a motion for arrest of judgment are the same as those that apply to a motion for new trial.

Motion for Judgment Notwithstanding the Verdict

A motion for judgment notwithstanding the verdict is essentially a motion for judgment of acquittal following the rendition of a guilty verdict. Motions for judgment of acquittal are made after the state has put on its case-in-chief and, if denied, at the conclusion of the defendant’s case-in-chief (where the defendant elects to put a case on; remember that the accused has no burden of proof and is not required to prove or disprove anything). A motion for judgment of acquittal, whether made during the trial, or following the rendition of a guilty verdict, basically asserts the evidence is insufficient to support the charge.


In General

In Florida the ordering of the compilation of a presentence investigative report (PSI), reserved for felony cases, typically rests within the trial judge’s discretion when the crime for which the jury convicted defendant carries a mandatory sentence.

When a trial judge, however, has discretion as to the sentence that he or she may impose on a defendant, then Florida law requires the preparation of a PSI.

A court will not pronounce a sentence if a defendant is either incompetent or insane until the defendant’s competence or sanity is restored.  Similarly, a court will not pronounce a sentence if a defendant has been pardoned for the crime or is not the same person who was convicted of the crime.

Sentence Modification

A court will reduce or modify a legal sentence within 60 days after either the imposition of the sentence or receipt of an appellate court mandate, or order of dismissal.  If review is upon motion, the trial court has 90 days from the date of the motion to enter an order.  But this rule does not apply in cases in which the death sentence was imposes, or where the judge imposed the minimum mandatory sentence, or has no sentencing discretion.

Sentencing Guidelines

Florida employs a set of objective factors intended to minimize inconsistencies in sentencing criminal convicts.  This usually starts with the compilation of a scoresheetFor a court to deviate from the recommended sentence it must explain in writing why it did so. 


Concurrent v. Consecutive

If a defendant is convicted of two crimes that carry a maximum of five years in prison each, he or she still faces the possibility of serving 10 years.  This outcome results if the judge sentences the defendant to consecutive sentences.  Alternatively, if the court sentenced this same defendant to concurrent sentences, he or she would serve only five years.  In short, if the sentences are consecutive, add them up as to each count.

A sentence for sexual battery or murder must be imposed consecutively to any other sentence for sexual battery or murder that arose out of a separate criminal episode or transaction.  Like the sentences for any other crimes, a sentence for sexual battery or murder may run concurrently with a sentence for any other offense charged in the same instrument.

Special Case of Capital Cases

Capital cases have two parts – the guilt phase and the sentencing phase.  In these situations, Florida law requires a full evidentiary hearing.  Moreover, in cases in which the State seeks the death penalty.