Know Your Rights!

Being arrested can be a very traumatic and difficult experience. The more you know about your rights, however, the easier the process may be because you will understand how the criminal justice system works.

If you have been arrested, it is important to know your rights and contact a criminal a defense attorney. Call Mr. Ruiz today for your FREE CONSULTATION.

What Happens if I a€m Arrested?

Arrest

After a police officer has placed a person under arrest, the officer transports him to a jail facility for booking by the Miami-Dade Department of Corrections and Rehabilitation. After processing, the person usually can post the standard bond amount and be released. However, if the individual cannot pay the required money, or was arrested for a domestic violence charge, a violation of probation, or a “non-bondable” offense, he will remain in jail and be taken within 24 hours for a first appearance hearing before a judge. A person arrested for a bench warrant (also known as an alias capias) will not be allowed to post bond and must appear before a judge.

When Will I Get out of Jail?

Mandatory Detention on Domestic Violence Charges

When a person is arrested on a misdemeanor domestic violence charge, the case is sent to the Domestic Violence Division (DVD) of the County Court. Domestic violence offenses are primarily assaults or batteries, stalking, and violation of injunctions between husbands and wives, boyfriends and girlfriends, people who live together, or people who have a child together. Laws applying only to domestic violence offenses require the defendant to remain in jail until the first appearance hearing. The defendant will not be allowed to post bond until after the hearing.

Bond Hearing

The purpose of the first appearance and bond hearing is for the judge to: Advise the defendant of the charge(s); Determine if the police had probable cause to make the arrest; Determine whether the defendant can pay for an attorney, and, if he cannot, appoint the Public Defender; and, Set conditions of pre-trial release from jail, if applicable. At the hearing, the judge sets conditions of release to ensure the defendant’s presence at future court hearings and to protect the community. The conditions are based on the charges, the defendant’s ties to the community, prior criminal history, and other relevant facts. It is often important for the defendant to have his family, friends or employer speak on his behalf.

In domestic violence cases, the judge will also issue an order that prohibits any contact between the defendant and alleged victim. If the alleged victim appears at the hearing, testifies on behalf of the defendant, and proves to the judge that no threat of harm exists, the judge may decide not to issue the order. If the defendant cannot post bond and remains in jail, the defendant will be scheduled to appear at a Domestic Violence Division Jail Report hearing within four days.

Pre-trial Release

A defendant is presumed innocent until the prosecutor proves guilt beyond a reasonable doubt. At this stage in the process, the prosecutor has not proven anything and the defendant is supposed to be treated as an innocent person. Following this principle, Florida law gives the defendant the right to be released from jail prior to the trial. However, there is no right to pre-trial release in cases where the person is arrested for a “non-bondable” offense. To determine whether the defendant should be released, the judge may ask about the length of time that person has lived in the area, whether the defendant has a job, has family members living in the area, has a past criminal record or has been released on bond previously and appeared in court as required. The judge may release the defendant on his own recognizance, on monetary bond (either cash or surety bond through a bail bondsman), on monitored release (electronic monitoring device or bracelet), to the custody of a responsible member of the community or to a drug program or mental health facility.

Pre-trial Detention on €œNon-bondable€ Offenses

If a defendant is arrested for a “non-bondable” offense, such as murder, sexual battery or kidnapping, the law presumes that the defendant will remain in jail pending trial. A person arrested for a “non-bondable” offense has the right to ask for an Arthur hearing. The purpose of the hearing is for the judge to determine whether the person should be released pending trial.

Filing of Formal Charges

The State Attorney’s Office (the State) has sole discretion to file formal criminal charges. In Miami-Dade County, the State files charges in approximately 60% of arrests involving adults. The State may file charges even if witnesses do not want to testify against the defendant or do not want to proceed with the case.

For felonies, the charging document most commonly used is called an “information.” The prosecutor has 30 days from the date of arrest to file the charging document. However, in Miami-Dade County, nearly all defendants are set for arraignment on felony charges on the twenty-first day after their arrest. If the charging document is not filed by the twenty-first day, and the defendant is in custody, his defense attorney can ask the judge either to release the defendant on his promise to appear in court or to hold an adversary preliminary hearing, which requires the State to produce evidence showing probable cause for the charges. Notwithstanding either defense request, if the prosecution intends to file a charging document, it will request an extension until the 30th day. On the 30th day, if the prosecution does not have a charging document, the court will order that the defendant be released on his own recognizance by the 33rd day, unless the state attorney files charges by that date. If the prosecution shows good cause, it can request to have the defendant remain incarcerated until the 40th day. No individual shall remain in custody for more than 40 days if no charging document has been filed.

Another way a person can be charged with a violation of law is by “indictment," a formal document issued by a grand jury usually charging a felony punishable by the death penalty or life imprisonment. It is based upon the facts and circumstances of a case as presented to the grand jury by the prosecution. A grand jury is composed of 21 Miami-Dade County citizens who have been selected from countywide voter rolls. A grand jury has broad powers to investigate a wide range of criminal offenses and to examine the performance of public officials and public institutions. Its deliberations are conducted in secret, in conjunction with the State Attorney. After hearing evidence presented by the prosecution, the grand jury decides whether charges should be filed and, if so, what those charges should be.

Arraignment

Arraignment is a court hearing at which the prosecutor announces whether the State is filing charges. If the State files charges, the judge explains to the defendant the nature of the charges and asks him or her to respond to the charges by entering a plea of guilty, no contest, or not guilty. In some cases, the prosecutor may offer to divert the case from the criminal court process into a pre-trial diversion program. If the client pleads not guilty, the case is scheduled for trial.

I've Never Been in Trouble Before

Pre-trial Diversion Programs

A client charged with his first offense may be eligible for participation in the pre-trial diversion program. The State Attorney’s Office has established pre-trial diversion programs as an alternative to formal prosecution. Criteria for these programs are strict, and acceptance depends upon the approval of the victim, arresting officer, prosecutor and judge. If the client agrees to enter the diversion program, the client will have to give up his right to a speedy trial and may be required to attend classes, perform community service, pay restitution, or meet other conditions. Upon successful completion, the prosecutor dismisses the charges. If the client does not complete the program, the case will be returned to court for trial.

Drug Court

Clients charged with felony possession and/or purchase of a controlled substance, may be eligible for the Drug Court diversion program. To view the drug court program description, click here.

Misdemeanor Diversion

The Advocate Program is the private provider that supervises all misdemeanor diversion and probation cases. When a judge diverts or sentences a client, the program counselors ensure compliance with the judge’s order. The Advocate Program offers classes and group counseling in values clarification, shoplifting prevention, anger control management (conflict resolution), substance abuse, parenting and weapons safety. A client may be charged up to $150 for a six-month supervision period, depending on his ability to pay. 

Traffic Case Diversion

The Drive Legal Program is a pre-trial diversion program for drivers with a suspended license who failed to appear in court or pay a fine. The clerk’s office screens all Driving While License Suspended citations for qualification for this diversion program. Eligible candidates are required to appear before a magistrate at a night report calendar. If the person accepts the conditions of the program and successfully completes it, the case(s) may be dismissed. For a description of the criminal traffic case process, click here.

For more information about driver's license suspensions, reinstatements, etc. click here.

I Want to Get this Case over With, What Can I Do?

Guilty and No Contest Pleas

A client can change his plea of not guilty to either “guilty” or “no contest” at any time. A guilty or no contest plea can also be negotiated between the prosecutor, the defense attorney and the client. In exchange for the client’s acceptance of the negotiated plea, the prosecutor may drop or reduce charges, or agree to a lesser sentence. If the prosecutor makes a plea offer, the defense attorney has an ethical duty to tell the client about the plea offer, even if the client has previously told the attorney that he wants to go to trial. Before accepting the guilty or no contest plea, the judge will question the client to make sure that he understands his rights; there was no improper pressure to accept the plea; the client knows what he is doing; he voluntarily agrees to the plea, and evidence in the case supports a finding of guilt. The client has the right to accept or reject a plea offer. If the judge accepts the plea, the judge will then proceed to sentence the client. When the client pleads guilty or no contest, the client gives up significant rights and may face serious consequences.

Consequences of a Guilty or No Contest Pleas

When a client enters a guilty or no contest plea, he relinquishes certain rights, such as the right to:

  • Investigate the case further
  • Proceed to trial
  • Be tried by a jury
  • Have an attorney represent him at trial
  • Compel the attendance of witnesses at trial
  • Confront witnesses who testify against him
  • Testify at trial
  • Remain silent at trial
  • Appeal

Non-U.S. citizens may face deportation as a result of being found guilty of committing a crime. Felony and misdemeanor convictions, and under some circumstances juvenile adjudications, can be used to enhance state and federal sentences. Everyone convicted of a felony in Florida has to submit their DNA for it to be included in the state’s DNA database. A conviction could impact a person's ability to work, live in public housing or rent an apartment, and obtain college grants or scholarships.

Additionally, convicted felons lose access to certain federal benefits, the right to vote, serve in the military, own or possess a firearm, hold public office, serve on a jury and may have a difficult time obtaining a job because in Florida criminal court records are public records. In most cases, a convicted felon can apply to have his civil rights restored through the clemency process after completing the sentence.


Probation

Probation is an alternative to being sentenced to jail or prison, and as such carries significant limitations on the client’s liberties. The judge, using the sentencing guidelines (also referred to as the punishment code), may sentence a client to probation or community control (house arrest) instead of — or in addition to — serving time in jail or prison. A felony probationer is under the supervision of the Florida Department of Corrections and must abide by its rules until the sentence is completed. Probation may take the form of community control, an intensely supervised and restrictive program in which a probation officer makes regular unannounced visits to the probationer’s home and may electronically monitor the probationer’s movements. In addition to the visits, the probationer will regularly report to a probation officer, receive permission from his probation officer before changing addresses or jobs or leaving the county, and must not commit any new crimes or abuse drugs or alcohol while on probation or community control. If the probation officer believes that the probationer has violated any of the conditions of the probation, the officer can file an affidavit alleging the specific violations and may ask the judge to hold a hearing to determine if the probationer is in violation. A probationer can be arrested and held in jail pending the probation violation hearing. At the hearing, if the judge finds that the probationer violated the terms, the judge may revoke the probation and sentence the client to jail or prison or extend the probationary period. If the judge finds the probationer did not violate the terms of probation, the probationer is restored to probation.

Fees, Costs and Restitution

The services of the Public Defender are not free unless the client is acquitted (found not guilty) or the charges are dismissed. If the judge makes a finding of guilt after plea or trial, the judge may require the client to pay attorney’s fees for the reasonable value of the services the Public Defender provided, court costs and restitution. The judge can require the payment of the costs and fees as a condition of the sentence or can impose a lien on the client’s property. If they are not imposed as a lien, the Clerk of the Court will enroll the client in a payment plan. Additionally, a judgment may be filed against the client for the attorney's fees, court costs and restitution.

What Happens at the Trial?

Trial

A trial is the “fact-finding” phase of a case and is held to determine the guilt or innocence of the defendant. It is the prosecution’s burden to prove the client’s guilt beyond a reasonable doubt. A defendant is not required to prove his innocence, present any evidence nor call or cross-examine witnesses and has the right to decide whether to testify. There are two types of trials: bench and jury. In a bench trial the judge decides issues of fact without a jury, while in a jury trial, jurors resolve disputed facts.

Bench Trial

A bench trial in criminal court can only occur when the prosecution and the defense agree. In a bench trial, there is no jury because the judge is the fact finder. The judge hears opening statements, the presentation of evidence and closing arguments, and then decides whether a crime has been committed and whether the client is criminally responsible as charged.

Jury Trial

A jury trial is where a judge presides, and six or twelve eligible Miami-Dade County residents are selected to hear the case and make a finding of guilt or innocence. The jury, not the judge, is the fact finder. During jury selection the judge, prosecutor and defense attorney question prospective jurors and then select the jury. The trial begins when the jury is sworn. Although every trial is different, there are specific elements that make up the proceeding.

A jury trial starts with opening statements from one or both sides. Opening statements tell the jury what both sides expect the evidence will show. The prosecution must call witnesses to testify and/or introduce physical evidence because it has the burden of proving the case. The defense attorney may cross-examine the prosecution’s witnesses and challenge its evidence. After the prosecution presents its evidence, the defense attorney may ask the judge to dismiss the case (motion for a judgment of acquittal) because the prosecutor did not present enough evidence to show that the client committed the crime for which he was charged. If the judge grants the motion, the case is over. If the judge denies the motion, the defense attorney may call defense witnesses and introduce evidence.

Because the State has the burden to prove that the person committed the crime, the defense does not have to present its own case. The client may testify or choose not to testify. After all evidence is presented, each side presents closing arguments to the jury. The judge then instructs the jury regarding the laws and rules that they must consider during their deliberation. The jury meets alone to review and discuss the admissible evidence until they reach a unanimous decision (verdict). If the jury cannot unanimously decide, the judge can declare a mistrial (hung jury). If a mistrial is declared, the judge may reschedule a new trial for a later date. If the jury finds the client guilty, it is then up to the judge to proceed to decide the sentence to be imposed. In death penalty cases, the jurors also participate in the sentencing phase. The jurors are presented evidence and arguments so they can make a recommendation to the judge to impose the death penalty or to sentence to life imprisonment.

What Happens If I'm Convicted at Trial?


Consequences of Being Found Guilty at Trial

Non-U.S. citizens may face deportation as a result of being found guilty of committing a crime. Felony and misdemeanor convictions, and under some circumstances juvenile adjudications, can be used to enhance state and federal sentences. Everyone convicted of a felony in Florida has to submit their DNA for it to be included in the state’s DNA database. A conviction could impact a person's ability to work, live in public housing or rent an apartment, and obtain college grants or scholarships.

Additionally, convicted felons lose access to certain federal benefits, the right to vote, serve in the military, own or possess a firearm, hold public office, serve on a jury and may have a difficult time obtaining a job because in Florida criminal court records are public records. In most cases, a convicted felon can apply to have his civil rights restored through the clemency process after completing the sentence.

Sentencing

Sentencing is the stage at which the judge imposes punishment after a finding of guilt that resulted from a trial, or entry of a plea of guilty or no contest by the client. The judge may order the Florida Department of Corrections to prepare a pre-sentence investigation (PSI) report and postpone sentencing until after the report has been submitted and reviewed.

The PSI includes information about the case and circumstances of the crime, any prior criminal record, the client’s reputation in the community, education, employment, health and background of the client’s family. The PSI may also include the client’s lifestyle, behavior pattern and general attitude. When the PSI is completed, the defense attorney reviews it with the client and prepares for the sentencing hearing. The defense attorney can have doctors or other experts evaluate the client and prepare a sentencing report with recommendations to be presented to the judge.

The defense attorney should know in advance the names and addresses of people who want to speak at the sentencing hearing on behalf of the client. At the sentencing hearing, the client has a right to speak and have the defense attorney make a presentation. The judge then informs the client of the finding of guilt and imposes the sentence, which can range from suspending the sentence, or a probation term, to the maximum jail or prison time allowable by law. The judge can, and, in some cases must, require the client to pay restitution to the victim and attorney (public defender) fees and court costs.

In capital cases, the maximum sentence is death and the law provides for a sentencing process that involves jurors making a recommendation to the judge regarding whether to impose the death penalty.

Appeals

A client has no right to appeal a plea of guilty or no contest, except when the judge allows him to reserve the right to appeal a particular point of law. A client who is convicted at trial and wants to appeal the conviction must file a notice of appeal within 30 days of being sentenced and must advise the appellate court of the exact errors in the trial. The client or the defense attorney must convince the appellate court that the trial judge’s errors affected the outcome of the case. Some common errors are that the judge did not follow the law or that the client was prevented from exercising his constitutional rights. In some cases, the judge may allow the client’s release on bail until a final decision by the appellate court. The judge will set a bond, pending the appeal, only if he believes the client has a good reason for appealing and that the client will re-appear in court. The client does not have an automatic right to bond during the appeal. It is possible that the client may serve the entire sentence during the appellate process.

Probation

Probation is an alternative to being sentenced to jail or prison, and as such carries significant limitations on the client’s liberties. The judge, using the sentencing guidelines (also referred to as the punishment code), may sentence a client to probation or community control (house arrest) instead of — or in addition to — serving time in jail or prison. A probationer is under the supervision of the Florida Department of Corrections and must abide by its rules until the sentence is completed. Probation may take the form of community control, an intensely supervised and restrictive program in which a probation officer makes regular unannounced visits to the probationer’s home and may electronically monitor the probationer’s movements. In addition to the visits, the probationer will regularly report to a probation officer, receive permission from his probation officer before changing addresses or jobs or leaving the county, and must not commit any new crimes or abuse drugs or alcohol while on probation or community control. If the probation officer believes that the probationer has violated any of the conditions of the probation, the officer can file an affidavit alleging the specific violations and may ask the judge to hold a hearing to determine if the probationer is in violation. A probationer can be arrested and held in jail pending the probation violation hearing. At the hearing, if the judge finds that the probationer violated the terms, the judge may revoke the probation and sentence the client to jail or prison or extend the probationary period. If the judge finds the probationer did not violate the terms of probation, the probationer is restored to probation.

Fees, Costs and Restitution

The services of the Public Defender are not free unless the client is acquitted (found not guilty) or the charges are dismissed. If the judge makes a finding of guilt after plea or trial, the judge may require the client to pay attorney’s fees for the reasonable value of the services the Public Defender provided, court costs and restitution. The judge can require the payment of the costs and fees as a condition of the sentence or can impose a lien on the client’s property. If they are not imposed as a lien, the Clerk of the Court will enroll the client in a payment plan. Additionally, a judgment may be filed against the client for the attorney's fees, court costs and restitution.

Can I Get This Case Off My Record?

Sealing & Expunging Arrest Information

Sealing a criminal record involves making a person's criminal history inaccessible to the general public. However, city, county, state and federal government and agencies, including the police and military, will have access to and be able to review your criminal history records whether or not those records are sealed. Expunging a record involves the court ordered physical destruction or obliteration of a criminal history record or a portion of that record. It is very difficult to qualify to have a record sealed or expunged.