Tallahassee Criminal Defense & Appellate Law FAQs
Luke Newman defends a wide variety of criminal charges which include: traffic citations, misdemeanors, felonies, probation violations, and injunctions. Luke also is very experienced in the appeals process, from direct criminal appeals to post-conviction litigation. Facing criminal charges in the Tallahassee area can be a frightening, confusing, and overwhelming experience. You may worry about what these charges could mean for you and your family. Will you face jail time? Fines? Probation? How can you possibly defend yourself? Remember, you have rights. You deserve to speak to a dedicated and experienced attorney who can help you reach a satisfying outcome. You do not have to face criminal charges alone. An initial consultation with Luke Newman is always 100% free and 100% confidential. Luke also accepts all credit cards and payment plans are available.
I have been contacted by a law enforcement officer who wishes to speak with me. What should I do?
Until you have retained an attorney who has advised you otherwise, do not speak to anyone. Please exercise your constitutionally guaranteed right not to incriminate yourself. Do not answer any questions. Even when a law enforcement officer has approached you in a ‘friendly’ manner, you should not answer questions or engage in conversation of any kind.
Obviously we all want to defend ourselves when accused of a crime or asked about wrongdoing. However, the statements in which you deny wrongdoing are inadmissible in court. On the other hand, the statements you make which are viewed as incriminating are allowed to be admitted. Generally your denials can not be put into evidence while your admissions come in. It is my experience that the majority of clients who incriminate themselves do so in the course of trying to explain or justify their actions to law enforcement. Regardless of whether you hire or even contact me, I urge you to resist the temptation to speak to law enforcement unless you have been advised to do so by an attorney.
One should never discuss his or her case with anyone else. This includes family members, friends, reporters, cellmates and probation officers. All of these people can be compelled to testify against you by the State of Florida.
What’s the difference between a Felony and a Misdemeanor?
Generally, a misdemeanor is an offense for which the maximum penalty is a term of imprisonment not exceeding one year while a felony is an offense for which the maximum penalty is a term of imprisonment which exceeds one year.
What happens at a “First Appearance”?
After being arrested the law in Florida requires that you be brought before a judge within 24 hours. A first appearance is generally a very short proceeding during which the judge advises you of the offense or offenses for which you have been arrested. The judge at the first appearance will decide if the police had sufficient grounds to arrest you. The judge will then decide if you will be released on pretrial release, and if so, under what conditions. Unless you are directed to speak by your attorney at first appearance, you should remain silent on all matters save for biographical information (name, date of birth, address).
What is “Bail”, “Bond” and “Pretrial Release”?
These three terms overlap in Florida. Pretrial release is the broadest term, it encompasses the monetary conditions of your release (bail/bond) as well as the specific conditions/prohibitions set by the court in releasing you back into the community from the county jail.
Fortunately in Florida those who are arrested are legally entitled to bond unless they are charged with a capital offense or a violation of probation. Bond is a written guarantee or a pledge which is purchased from a bonding company acting as a security. Bond is designed to guarantee performance by the purchaser. The purpose of bond is to insure a defendant’s presence at scheduled court appearances. A defendant who is arrested for an offense may be given, for example, a four thousand dollar ($4,000) bond.
However it would also be common for the court to order that defendant to comply with specific conditions, such as submitting to GPS monitoring, refraining from the use of alcohol, and avoiding contact with the victim and any witnesses. The monetary condition alone would be that defendant’s bond; the monetary conditions along with the other specific conditions make up the defendant’s pretrial release.
In asking the court to set a bond amount which the defendant can afford, it is important to show the court that the defendant will appear in court. The factors involved in presenting these issues to the court include the offenses with which the defendant is charged, the strength or weakness of the evidence, the defendant’s ties to the community, the defendant’s criminal history, the source of funds from which bond will be posted and the risk of danger to the “victim.”
If the court has set a bond amount which the defendant and his family are unable to afford the defendant may ask the court to reduce the bond amount. It is very important to present the best possible facts and argument at the initial bond hearing – multiple bond hearings are prohibited by the rule unless there are significant changes in circumstances.
What to Do During and After an Arrest in Florida
If you have never been arrested before, the first time will no doubt be a scary and overwhelming experience. Many people are unsure how to handle or arrest or what steps they need to take once they are brought to the police station. Here at Luke Newman, P.A., we can offer the following general guidelines on what to do–and what not to do–during and immediately following a criminal arrest.
What Does It Mean to Be Placed Under Arrest?
When a law enforcement officer has either an arrest warrant or probable cause to believe that a person has committed a crime, the officer will place that individual under arrest. This essentially means the suspect is taken into custody and may not leave on their own free will. The arrest itself does not always begin when a suspect is handcuffed or taken to the police station. It begins when the suspect is in a “custodial situation” where they are not free to leave.
How Should I Respond to an Arrest?
The most important thing to remember is never use force or try and “resist” arrest. This is a crime in and of itself. More importantly, if you resist the officer may decide to use force against you, which may lead to serious injury or even death.
Will I Be Searched After an Arrest?
Yes, the police will search your person and property. This may occur at the scene of the arrest or later at the police station.
Should I Try and Explain Myself to the Police?
For many people, their first instinct is to try and “explain their side of the story” to the police during or after an arrest. This is always a mistake. The reason you were placed under arrest in the first place was that the police have reason to believe you committed a crime. They are not interested in hearing your side.
Do I Really Have the Right to Remain Silent?
Yes. You are not required to answer police questions under any circumstances. This includes before, during, and after your arrest. Keep in mind, any voluntary statement you make during the arrest process may later be used against you in court.
What Should I Say Publicly Following My Arrest?
As little as possible. You should never talk about a pending criminal case with anyone aside from your attorney. This includes not making statements to family, friends, or followers on social media. Not only can such statements be used against you–but anyone you speak to may be called by the prosecution as a potential witness.
Should I Call an Attorney Immediately Following My Arrest?
Absolutely. You have the right to an attorney at all stages of the criminal justice process. This includes the right to a lawyer during any police questioning and at your initial court appearance for arraignment. It is always in your best interest to speak with and retain a qualified criminal defense attorney as soon as possible following an arrest.
How does the charging process work?
Following an individual’s arrest, the prosecuting authority (most often the Office of the State Attorney) reviews law enforcement’s description of the incident which led to the arrest. The Office of the State Attorney had the sole discretion to decide whether or not to file formal charges and exactly which formal charges to file.
Often the Office of the State Attorney concludes that the events reflected in law enforcement’s account of the incident do not rise to the level of a crime. The Office of the State Attorney may also conclude that the events reflected in law enforcement’s account of the incident amount to criminal conduct less serious than the offense which was charged by law enforcement.
This period of time in which the Office of the State Attorney is considering these issues specific to a defendants case is CRITICAL. It is not unusual for an experienced criminal defense attorney to successfully intervene with the Office of the State Attorney and sway that office to either forego filing formal charges or to file only a lesser charge which is more appropriate under the circumstances.
Without an attorney who is familiar with this courthouse framework, a defendant simply does not have a voice in this process during this critical period. The absolute worst case scenario for a defendant is to remain unrepresented during this time-frame and to therefore be charged with the most serious possible offenses. All future negotiations will be held from that point on with the defendant at a disadvantage.
The Office of the State Attorney must file formal charges within 180 days of the defendant’s arrest. If a defendant is in jail and has been unable to afford bond, the Office of the State Attorney has 30 days from arrest to file formal charges. If formal charges are not filed within 30 days, and after notice to the Office of the State Attorney, the court must order the defendant released on his own recognizance.
What is an injunction?
Injunctions—as they are referred to in Florida—or restraining orders, are issued by the court to protect an individual against potential violence. Injunctions can arise from family/domestic or criminal situations. Therefore, family lawyers and criminal defense lawyers should be familiar with the injunction process and its unique quirks.
Florida law has created several types of injunctions based on the relationship between the person seeking the injunction (the petitioner) and the person against who the injunction is sought (the respondent). For example, a petitioner may seek a domestic violence injunction against someone he or she has a child with, even if they live many states apart. A petitioner may be a neighbor or co-worker who is seeking an injunction for protection against repeat violence. There are also injunctions for dating violence, sexual violence, and stalking.
What are the effects of an injunction?
There is no fee for the petitioner to seek an injunction. The standard by which courts grant injunctions is surprisingly low in many cases. Regardless, there are a number and variety of consequences that can seriously impact the respondent. Injunctions can:
- transfer ownership of a home or prohibit access a shared residence,
- separate children from parents,
- impose some significant child support obligations,
- impact the right to keep and bear arms,
- lead to jail time if violated.
Protecting these important rights is difficult enough. It is even more difficult if the respondent is facing criminal charges as well. Most injunctions are unnecessary if the criminal process is already underway. Standard conditions in pre-trial release orders include “no contact” with the alleged victim of any offense. However, law enforcement is required to provide Florida victims’ rights brochures to complainants at the scene of an arrest which outline the process for obtaining an injunction.
Many victims go to the clerk’s office the following day seeking injunctive relief. This can confound the situation for the respondent who may be incarcerated or in the process of bonding out of jail at the same time a “separate” civil proceeding is undertaken. It could significantly trample his rights prior to any criminal discovery, much less a trial.
What is involved when someone files an injunction?
There are numerous issues that can affect the outcome of an injunction hearing:
- Procedural: which includes the type of injunction, burden of persuasion, standard of proof, evidence available;
- Tactical: which includes the nature of criminal investigation, whether to announce appearance, desire to act quickly or over a prolonged period, the existence of an earlier-filed paternity or dissolution case.
- Nature of the hearing: The hearings are often very informal, even though the respondent’s constitutional rights are at stake. Although, the evidence code and rules of evidence are supposed to apply. anyone who has spent more than a few minutes in “love court” will quickly be able to tell you that formal presentation of (and limitation of) evidence is a rare occurrence. Petitioners (women) who allege abuse are frequently represented by counsel paid for via federal grant money. There is no similar provision for respondents who frequently appear without a lawyer and talk their way into criminal charges along with the loss of their rights regarding firearms and contact with their own children.
- Timeline: Injunctions, by statutory design, are presumed to move quickly. Normally respondents are served with temporary injunction paperwork which includes a notice of hearing for a “final injunction hearing” which is scheduled within 15 days. Respondents often find themselves with a criminal charge hanging over their heads and a very short time to coordinate a response.
Is a lawyer necessary?
The consequences of having an injunction filed against you can be devastating. The process of the injunction hearing is extremely complicated. For these reasons it is always shocking to see the number of respondents who appear at injunction court unrepresented.
Among the logistical issues is that if a criminal case is pending, there may be reason to either speed up or slow down the injunction process. In some injunction cases, it is important for counsel to immediately announce that he is representing the respondent in the injunction cause. Often the opposite is true; counsel will file no formal notice of appearance until he appears at the injunction hearing.
Proceeding in the injunction case can materially assist a criminal defendant’s investigation in some cases. In other cases, the injunction action is necessarily toxic to the criminal investigation and counsel will advise the respondent to not appear in injunction court.
If someone is seeking an injunction against you – various rights are in immediate peril. I urge you to consult with and retain competent counsel prior to proceeding to any hearing. Competent counsel means an attorney who is familiar with the injunction process and, if applicable, the criminal process as well. The absolute worst thing you could do is to walk into court and start talking.
What if the witnesses don’t want to come to court?
Even if a witness (or several witnesses) do not want to testify against a defendant, the Office of the State Attorney may still prosecute the defendant on the charges. The law of the State of Florida gives the Office of the State Attorney this type of discretion to subpoena reluctant witnesses to come to court even if they should indicate that they do not wish to do so.
What is an “Arraignment”?
Defendants who have retained an attorney prior to arraignment will probably have an attorney who will enter a written plea and waive arraignment on their behalf so that they will not have to appear. If a defendant has not retained an attorney who has waived arraignment on his behalf, he will be required to attend the arraignment. Arraignment is frequently the first court hearing scheduled following a defendant’s first appearance. No evidence is presented at arraignment. Charges are generally read and defendants are required to enter a plea at that time. If a defendant has not retained an attorney prior to his scheduled arraignment he should plead not guilty and advise the court that he is planning on retaining an attorney. The court will schedule a subsequent date at which the defendant or the attorney he retains will have to appear.
Is it always necessary to appear in court?
Following arraignment, whether or not a defendant has to appear in court depends on the type of case involved as well as the type of hearing scheduled in the courtroom. Oftentimes it is unnecessary for a defendant to appear at a routine court appearance if that defendant is represented by a retained attorney. Generally however, a defendant should appear at all scheduled appearances unless specifically informed otherwise by his attorney.
How is a case prepared for trial?
A retained attorney should meet with the defendant to go over the facts of his case. A retained attorney should speak with the witnesses the defendant identifies to the attorney. Normally a private attorney will go over a copy of the charging document with the defendant. More often than not, criminal defense lawyers in Florida actively engage in the discovery process.
In the course of prepping a case for trial an attorney will normally file the necessary discovery motions to obtain the State’s witness lists, police reports, witnesses’ statements, reports of experts and all other important facts in each case. Discovery depositions and other statements given under oath may also be taken from witnesses.
It is normal for an attorney to discuss the case with the assigned prosecutor in order to obtain an idea of the prosecutor’s attitude regarding a defendant’s case. The prosecutor may decide to dismiss all charges or to “plea bargain,” which is to agree to a lighter sentence or drop some of several charges in a case, in exchange for a plea of guilty or nolo contendere (no contest).
If the prosecutor offers a plea bargain to a defendant, the defendant’s lawyer will inform him of it immediately, as there is an ethical duty to inform the defendant of any plea offers, even if the defendant has said he wants a trial regardless of the prosecution’s offers.
What happens at the trial?
If you are still reading at this point and you want to get into specifics about what will occur at a trial you can begin by looking at the Standard Jury Instructions in Florida Criminal Cases. Instruction 2.1 sets out the general course of a criminal trial. As every criminal case is distinctly unique, each trial has its own distinct components which are not well suited for generalizations on this page. I encourage you to contact me and discuss your concerns as to the trial process.
What is an “Appeal”?
Criminal appeals are the most common types of appeals found in Florida’s appellate courts. If you or a loved one has been convicted of a crime it is critical that you obtain the services of an attorney who understands Florida criminal law in addition to the substantive and procedural limits of appellate rights. The procedural framework for appellate practice is generally unlike the procedural framework at the trial court level. There are hard and fast, unchangeable deadlines involved in the appellate process and it is important that your lawyer understands what they are and which ones will or may impact on your appeal. In order to preserve the openness of the process and the peace of mind of all involved, it is critical to retain an attorney experienced in the appellate process. This attorney will meet the appropriate deadlines, provide you copies of the appellate record and stay in contact with the defendant as well as his or her family to provide updates on the notoriously slow appellate process.
I have handled numerous criminal appeals. Two of my published opinions are available for you to read through following the links below:
Because the First District Court of Appeal records and archives the oral arguments which take place before it; you can watch my two oral arguments in that court by following the links below:
