One of the most common mistakes we come across is when people are first arrested. Many people make the mistake of waiting until their first court date before hiring a criminal defense lawyer. They figure that once they are arrested, they automatically are charged with a crime so what is the use? This is not correct and in fact having a lawyer represent you BEFORE your first court date can be extremely beneficial.
In the State of Florida, the vast majority of people who are charged with a crime either receive: (1) a citation or (2) an Information is filed against them.
A citation is typically issued for traffic offenses (such as speeding or running a red light) or a misdemeanor criminal traffic offense such as a DUI. For a citation, the police officer who conducted the investigation will issue a citation to the accused person and file an identical copy with the clerk of court. In this scenario the prosecutor plays no role in the charges being filed. The moment the police file the citation with the clerk, the person is formally charged with the offense for which it was issued. A criminal defense lawyer is still important at this time. Even after the citation is filed, your lawyer can still negotiate with the prosecutor to reduce the charges or perhaps have them dismissed completely.
The second and by far the most common type of charging document is called an “Information“. The vast majority of misdemeanor and felony offenses in Florida are charged by information.
While the police make arrests, they do not charge suspects with crimes. A suspect does not become a Defendant unless and until the prosecutor files an Information with the Court. In Pinellas County, this can happen in one of two ways. A police officer may investigate an alleged crime but not make a physical arrest. This may be because the suspect has fled the scene, there is not enough evidence to make an arrest or in the case of fingerprints or DNA, it will take time to identify the suspect. In this example the police meet with the prosecutor and present all the evidence the officer has obtained, including physical evidence, statements from witnesses, and sometimes statements from the accused. The prosecutor has complete discretion to file charges. If he or she thinks there is enough evidence to proceed, the assistant state attorney drafts an Information and an arrest warrant, filing both with the clerk. Only when the suspect is located by police and taken into custody, the prosecution of that person begins.
In other cases a police officer will make a physical arrest of the accused person and take him or her to jail. The police officer will thereafter meet with the prosecutor and present the evidence. Just like the first scenario, the prosecutor will determine whether there is sufficient evidence to proceed. A good prosecutor should determine if he/she will be able to prove the allegations against the defendant “beyond a reasonable doubt”. If the prosecutor thinks so, he or she will file an Information, and the prosecution of the case starts.
In either scenario, if the prosecutor decides the evidence is not sufficient, or there is not a reasonable likelihood of successful prosecution, the state can file a document called a “No Information”. If a “No Information” is filed, the accused person is not charged and the matter is dropped. If the accused was arrested on the charge and unable to post bond, they would be released upon the filing of a “No Information”. In Pinellas County, the assigned prosecutor usually needs to provide the reason they elected not to file a case. There are many reasons such as lack of evidence, conflict in the evidence, and the victim or witnesses declining to press charges among others.
In Pinellas County, the prosecutor who makes the filing decision is typically the prosecutor assigned to the case until it is resolved. This puts more pressure on the prosecutor to make accurate filing decisions. If they file haphazardly, the prosecutor may be stuck with cases that have potential evidence problems.
This is where having an aggressive criminal defense lawyer on your side can help you. Instead of waiting for charges to be filed, your lawyer can be meeting with the assigned prosecutor and getting your side of the story out to them. The prosecutor will almost always be open to hearing and considering additional information about your case from the defendant’s attorney. From the time of the arrest to the filing of an Information, there is usually a four to six week gap. This time period is when your lawyer can have the most impact on the prosecutor’s decision in your case. This gap gives your attorney time to speak with the prosecutor and provide them additional information in an attempt to convince the prosecutor to not file an Information or to reduce the criminal charge.
Once the Information is filed, the case can only be dropped by the filing of a “Nolle Prosequi” by the assigned prosecutor. This is not common and rarely happens in most counties. If you or a loved one are arrested, any delay in retaining an attorney to fight on your behalf could put you at a significant disadvantage.