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Arrested: What to Expect

THE OFFICE OF THE PUBLIC DEFENDER

The 6^th Amendment of the United States Constitution proclaims that “[I]n all criminal prosecutions, the accused shall…have the assistance of counsel for his [or her] defense.” In 1963, the United States Supreme Court, in deciding the case of Gideon v. Wainwright, ruled that any person charged with a criminal offense and unable to retain an attorney shall have an attorney appointed should they so desire. In light of this ruling, Florida and other states established the office of the Public Defender to represent these citizens.

Each of the 20 Judicial Circuits in Florida has a separate Office of the Public Defender. These offices represent indigent persons charged with a criminal offense as well as persons facing civil commitment under the Baker Act and the Sexual Violent Predator Act. Public Defenders provide zealous and effective representation to persons who cannot afford to hire private counsel.

Each Office of the Public Defender is headed by an elected Public Defender who is a constitutional officer of the State of Florida. The Public Defender is a licensed attorney and a member of The Florida Bar and is elected to office for a four-year term. The Public Defender’s staff consists of Assistant Public Defenders who are also licensed attorneys and members of The Florida Bar, as well as investigators, legal assistants, and administrative personnel.

An Assistant Public Defender will represent you and work with investigators, witness interviewers, and legal assistants on your case. Third-year law students and law school graduates not yet admitted to The Florida Bar may also work with Assistant Public Defenders in our Office. These individuals are called legal interns.

The Public Defender’s Office keeps apprised of all new developments in the law. As part of continuing legal education, the Public Defender holds in-house training classes for all employees and regularly sends attorneys and other employees to outside training programs.

*Remember to consult with your attorney if you have questions.

Appointment First Appearance Communication Juvenile Investigations Arraignment Court and Pleas Sentencing Probation Appeal

APPOINTMENT OF THE PUBLIC DEFENDER

The Public Defender only represents people who are indigent as defined by Florida law.

All persons charged with a crime who face jail time are entitled to representation by an attorney. In order to be represented by the Public Defender, you must complete a financial affidavit (or application) to determine if you qualify for our services. The financial affidavit may be filled out in jail, in court or can be filled out at the Clerk of Court Office located in the county where the criminal case is pending. Please note that in misdemeanor and criminal traffic cases the Judge does not always appoint the Public Defender to represent you even if you are indigent. If an “order of no imprisonment” is filed in your misdemeanor or criminal traffic case, you are not entitled to the appointment of the Public Defender. This means that in those circumstances if you cannot pay for your own attorney, you will not have an attorney representing you.

If you are found to be indigent by the Court you will qualify for the services of the Public Defender. Please note the Clerk of Court will charge you a $50 application fee. The $50 application fee must be paid within 7 days of the date you signed the application form. If you are acquitted or all of your charges are dismissed, the Clerk of Court will reimburse this fee upon request. If the Clerk determines that you do not qualify for the services of the Public Defender, you can ask the Judge to review that decision. Once the Clerk of Court has determined your indigency status, you will receive an approval or denial letter in the mail.

FIRST APPEARANCE

If arrested and booked into jail, you will appear before a Judge within 24 hours of your arrest. The Judge will first advise you of the charge(s) for which you have been arrested. The judge will then decide if the police had a sufficient legal reason - called probable cause - to arrest you. You should not make statements about your case at this hearing. The Judge will ask you if you wish to be represented by an attorney and, if so, whether you intend to hire private counsel. If you are financially unable to hire your own attorney, you will need to complete a financial affidavit. The Judge may also provisionally appoint the Public Defender, pending a result on the financial affidavit. The Judge may then address bail.

BAIL

Bail is intended to guarantee you will appear for your scheduled court appearance. You have a very limited right to bail in capital cases, and cases carrying a life sentence. Cases with limited right to a bond may include murder, sexual battery, kidnapping, burglary and robbery. You are not legally entitled to a bond for a Violation of Probation. A bond is money paid to secure your release from custody while your case is pending. To set your bond, or to lower the amount of your bond, the Judge must be convinced you will be in court when notified to be there and that you pose no threat to the alleged victim or the community at large. The Court may ask you several questions, such as how long you have lived in the area, whether you have family in the area, whether you are working, whether you have been allowed out on bail before and appeared in Court when required, and whether or not you have a criminal record.

If the Court finds you are not a threat to public safety if released, you will appear when required in court, or you have a responsible person in the community who will guarantee your appearance in court. The Judge has the option of releasing you without bail. This is called release on your own recognizance (ROR). Some jurisdictions also have pre-trial release programs which allow you to be released but require you report to a counselor and may require you to participate in drug tests, alcohol checks, or counseling while your case is pending. Talk to your attorney about the pre-trial release options in your area. It is important to note that pre-trial supervision can be ordered in addition to bond. In other words, it is not always either or.

If you cannot make the original bail, your Assistant Public Defender may file a motion for reduction of bail if your bail seems too high in view of the charge(s) or if the evidence against you is weak. Remember, you do not have a right to multiple bond hearings unless there are significant changes in circumstances. Not being able to make the previously set bond is not a significant change in your circumstances.

JUVENILE COURT

If you are a juvenile (under 18 years of age), charged in the juvenile system (and have never been charged in the adult system), your first court hearing is called a detention hearing. At that time, the Judge will decide whether you should be released from custody and may appoint the Public Defender's Office to represent you. You may be released from custody through a program called non-secure detention. Your attorney may ask for you to be interviewed for non-secure detention, and will ask the Judge for your release. (See Juvenile Tab)

PREPARING YOUR CASE

The Public Defender’s Office cannot represent you until a Judge appoints us to do so. Once appointed, we will interview you and get a copy of the charges against you. This all takes time. Each case is different. Complicated cases naturally take longer than other cases. An extra month or two in jail may save you from years in prison. Your attorney must be thoroughly prepared before he or she can go into court for you. If you do not understand why your case is taking so long to prepare, talk to your attorney. Your attorney will explain the reasons to you.

Your attorney may file discovery motions to get witness lists, police reports, witnesses’ statements, reports of experts and all other important facts in your case. Discovery depositions and other statements given under oath may be taken from witnesses. You are encouraged to assist in the preparation of your defense. One of the most significant ways you can assist in your defense is by providing your attorney the names and addresses of witnesses who can testify to circumstances that may prove you are not guilty or help show that the crime was not as serious as the State contends. You and your family should not contact the alleged victim or witnesses listed by the State. It is the attorney’s job to contact the alleged victim and State witnesses.

It is of the utmost importance that you regularly communicate with your attorney and assist in your defense.

Your attorney will communicate with the prosecutor on your behalf to discuss, among other things, the prosecutor’s intentions with your case. The prosecutor may decide to offer a “plea bargain,” meaning that they may agree to drop a charge, reduce a charge or lower a sentence in exchange for a plea of guilty or nolo contendere (no contest). If the prosecutor offers you a plea bargain, your attorney is required to convey that offer even if you have said you want a trial. Your attorney telling you what the prosecutor offered does not mean your attorney agrees with the prosecutor. Should your goal be a reasonable sentence, your attorney will advise you of any negotiations that take place or whether you should consider pleaing to the court.

Should you choose to go to trial, our attorneys will zealously and effectively represent you to the best of their abilities.

ALL COMMUNICATIONS BETWEEN YOU AND YOUR ATTORNEY ARE CONFIDENTIAL

Without your permission, confidential information cannot be revealed to the prosecutor or anyone else, including your friends and family.

Anything you tell a Public Defender’s employee or intern, or anything you tell your attorney, is confidential and having someone sit in on your attorney meeting will also violate the confidentiality. However, conversations you have with other people are NOT confidential. These people include your spouse, family, friends, other inmates, news reporters, probation officers, or police officers. You should not talk to these people about your case or about anything your attorney tells you. DO NOT TALK ON THE JAIL PHONES ABOUT YOUR CASE. YOUR CALLS ARE BEING RECORDED AND PROVIDED TO THE STATE ATTORNEY. The State Attorney DOES listen to the calls and WILL use anything you say against you.

JUVENILE COURT

If you are under the age of 18, you may be tried as an adult under certain circumstances. Your prior record and the seriousness of the charge may be considered. Your attorney will explain these matters to you based on the facts of your case. If you are to be tried as a juvenile, you may be released from custody through a program called non-secure detention. Your attorney may ask for you to be interviewed for non-secure detention, and will ask the Judge for your release.

Only the Judge can place you in the non-secure program. Non-secure detention allows you to live at home while waiting for trial. A counselor will contact you periodically.

You may be returned to custody if you do not follow all rules set by your counselor. After the detention hearing there will be an arraignment where you will be asked to enter your plea. The various pleas available to you and procedures to be followed in handling your case are similar to those for adults. Your case will be heard and decided by a Judge assigned to the Juvenile Court. Your trial will be called an adjudicatory hearing. There is no right to a jury at this trial. The presiding judge will be the trier of fact during the trial. If you have been found not guilty by the Judge or if your case has been dismissed, you will be released and there will be no further proceedings in your case. If you are found guilty at the adjudicatory hearing, you will have a dispositional hearing where the Judge decides what will happen to you for sentencing purposes.

In order to determine the disposition of your case, the Judge will look at the facts and your personal background including your prior record, if any. The Judge can place you in a program supervised by the Department of Juvenile Justice or may place you on probation. Do not compare the disposition of your case with other cases, because each case is different.

If the Judge places you on probation, you will be required to complete certain tasks. If you do not complete your responsibilities, you may be brought back to court. An attorney can be appointed to represent you at this hearing if you still qualify. You may be committed to the Department of Juvenile Justice if the Judge finds that you have not done what you were ordered to do.

INVESTIGATING YOUR CASE

It is important that you cooperate with your attorney and with your attorney’s investigator. Your attorney and the investigator must know the truth.

You can help the investigation of your case by providing the names and addresses of witnesses. Your attorney and the investigator may interview the witnesses against you and try to locate defense witnesses. Accurate names and addresses are helpful. If you do not know the witness’s name or contact information, ask your witnesses to contact your attorney. You should not contact witnesses for the prosecution, the alleged victim, or send other people to talk to the witnesses or the victim for you. If you do, you may be charged with a new crime of tampering with witnesses.

*Do not discuss your case with anyone other than your attorney or someone connected with the Public Defender's Office. Please note that all jail phone calls and jail visits with anyone other than your attorney are recorded.

FILING FORMAL CHARGES

The State Attorney’s Office has the sole discretion whether to file formal charges against you. Even if witnesses don’t want to testify against you or want to “drop the charges,” the State Attorney may still file the charges. The State Attorney also has subpoena power to make witnesses come to court and to hold them in contempt if they fail to respond to a validly served subpoena.

ARRAIGNMENT

After your first appearance, if the prosecutor files formal charges, an arraignment will be scheduled. The arraignment is not a trial and not a time when evidence or witnesses can be presented. At arraignments, you are informed of the charges against you and your right to be represented by an attorney. If you do not have an attorney and/or are unable to hire one, the judge can determines if you qualify to have an attorney appointed from the Public Defender’s Office to represent you. You should meet with your attorney as soon as possible after arraignment in order to decide how to proceed with your case.

MOTIONS

After investigating your case, your attorney may file motions and ask for a court hearing. YOU SHOULD NOT FILE YOUR OWN MOTIONS. If you are represented by an attorney the law does not allow you to also file your own motions. Because you are not an attorney, you may put something in a motion that could hurt your case. If you have a matter that you want the Court to know about, ask your attorney about it.

COURT APPEARANCES

You must appear in Court for all your court hearings unless your attorney tells you not to be in Court. IT IS EXTREMELY IMPORTANT THAT YOU SHOW UP TO COURT ON TIME. If you do not show up in Court or are late for Court, the Judge may issue a warrant for your arrest and your right to a speedy trial may be lost. Your bond may also be revoked which could result in you being held in jail until your case is completed. It is your responsibility to keep your address current with the Clerk of Court and your attorney.

PLEAS

The law presumes you are innocent until proven guilty. You can only plead one of three ways: 1) Not Guilty; 2) Guilty; 3) No Contest. A not guilty plea is entered when you are innocent or your attorney needs to investigate your case. If you plead guilty or no contest, there will not be a trial and the Judge will then proceed with sentencing.

The Judge decides if your plea will be accepted. This is true even if you, your attorney, and the State Attorney have negotiated a plea agreement. What sentence you get is always ultimately up to the Judge.

CHANGING A PLEA

If, after talking with your attorney, you decide to change your plea of not guilty to either guilty or no contest, your attorney will explain what that entails. You alone must decide whether to change your plea, and the Court wants to make sure it is solely your decision. Before accepting your plea, the Judge will ask you certain questions to make sure you understand all of your rights, and that no one has pressured you into changing your plea. A conviction can have serious consequences (employment, immigration, military, housing, driver license, and college grants and loans) in your life. Before entering such a plea of guilty or no contest, make sure to discuss with your attorney the possible consequences of your plea.

TRIAL

You and your attorney must decide whether you want a trial. Most trials involve using a jury to decide the facts of the case. Your attorney will question the prospective jurors, and with your assistance try to select the best ones to hear your case. After both sides question the jury and the jurors are agreed upon, the actual trial begins. Each side can then make an opening statement telling the jury what the case is about. The prosecutor then presents his/her witnesses and evidence. Your attorney may present defense witnesses and evidence after which the prosecutor may offer rebuttal evidence. You have the right to testify in your trial, but you cannot be forced to testify. Your attorney will assist you in deciding whether to testify or not testify, but this decision is ultimately up to you. The decision as to how to best defend your case is complex and should be discussed in detail with your attorney. After all the evidence is presented, each side makes its closing arguments to the jury. The Judge then instructs the jury about the laws and rules applicable to your case which govern the jury’s deliberation. The jury then goes into a room to talk about the case until they reach a unanimous verdict. If the jury is unable to reach a unanimous verdict, meaning every juror does not agree to the same verdict, a mistrial is announced and the case will be reset for trial at a later date.

PRE-SENTENCE INVESTIGATION

If you are to be sentenced in a felony case, the Judge may postpone sentencing and order a pre-sentence investigation (PSI). The PSI informs the Judge of your background and helps the Judge decide your sentence. A probation officer will question you and may question members of your family, your friends, witnesses in the case and your attorney in order to make this report to the Judge. The PSI includes the cause and circumstances of the crime, your prior criminal record, if any, your reputation in the community, and background about your family, education, employment and health. If you are a candidate for probation, the PSI will include information about your plans for the future.

Be truthful with the probation officer since all statements are verified and untruthful statements are reported to the Judge. HOWEVER, you should not discuss your knowledge of the crime for which you are convicted or any other crimes without permission from your attorney. Also, the PSI will discuss things like your lifestyle, behavior pattern and general attitude. PSIs often take several weeks to complete. Your attorney will obtain a copy of the PSI and review it with you.

SENTENCING

If you are to be sentenced, you will have an opportunity to speak at the sentencing hearing. You should discuss with your attorney whether to speak and what to say. The Judge will also give the State, your attorney, and any other interested party or witness a chance to speak. Let your attorney know in advance the names and addresses of people you want to speak at your sentencing. Do not compare the sentence in your case with those in other cases you have heard about because each case is different.

PAYMENT

When you are sentenced after a trial or by entering a plea of guilty or no contest, the Judge may require you to pay attorney fees for the reasonable value of the services you receive from the Public Defender, court costs and restitution. A lien in the amount of the attorney’s fees may be imposed against any property you may own. Additionally, a judgment may be filed against you for the attorney’s fees, court costs and restitution.

PROBATION

Probation is a privilege, not a right. If you are a first-time offender, you will not automatically receive probation. If you are placed on probation, the usual conditions include: 1) reporting regularly to your probation officer; 2) notifying and receiving permission from your probation officer before changing your address, changing your job, or leaving the county; and 3) leading a law-abiding life and not committing any other crimes. If you violate any of these probation conditions, or any special conditions required by the Judge, you will be rearrested and charged with a violation. A probation violation hearing will be held by the Judge without a jury. If you are found in violation, the Judge may sentence you up to the maximum possible penalty for the charge(s) that you were placed on probation for.

APPEAL

If you are convicted and want to appeal your case, you must do so within 30 days after sentencing. An appeal is a review of your case by a higher court and will only be successful if a legal mistake was made.

If you enter a plea of guilty or no contest or enter an admission to a violation of probation, you can only appeal an illegal sentence or challenge your attorney’s representation.

Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing. SB 80/Chapter 2006-232, Laws of Florida (Public Records Law Regarding E-mail).