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Foto de persona leyendo para el abogado criminalista Ricardo P. Hermida en Miami, Coral Gables, condado de Miami-Dade, Florida.

Questions and Answers

Foto de edificios en el fondo para el abogado de ley criminal Ricardo P. Hermida en Miami, Coral Gables, condado de Miami-Dade, Florida.

“Was I lawfully arrested? They stopped me for no reason!”

The police just can’t stop you because they want to.  They need to have probable cause or reasonable suspicion to stop you.  If an arrest is found to be illegal, then evidence seized as the result of the initial, illegal arrest may not be introduced against you in Court

“But they didn’t read me my rights...” Does that means they can’t charge me?

If they didn’t -and you made incriminating statements while in custody - the State may not be able to use those statements against you in Court.  Remember: You have the right to remain silent.  You also have the right to have a lawyer present during police questioning…and they can’t punish you for asking for a lawyer.  However, the fact that rights weren’t read will not invalidate an arrest.

“Did I have to let them search me, my home, or my car?”

Generally, you have the right to refuse to let the police search your home, your bedroom, your car, and your person.  Police searches have to follow certain guidelines, and if the police obtained evidence as a result of an illegal search, they may not be able to use that evidence against you in Court. 

“What’s in the police report isn’t what really happened.”


The police aren’t about to testify on your behalf.  They’re not going to highlight any “holes” or inconsistencies in their report (or “A-Form”).  They’re actually going to go out of their way to point out “the bad stuff.”  Remember, the A-Form is just their side of the story.  We may be able to learn more about A-Form discrepancies, other defenses, and any police misconduct via the discovery process and depositions, where I ask the police questions on your behalf -- under oath.

What are Pretrial Motions?

These may include Motions to Suppress Evidence, Exclude Statements, Speedy Trial Demand(s), Motions to Dismiss, and so forth. 

What are informed plea negotiations or “Plea Bargains?”

An agreement between the State Attorney and Defense to a particular sanction or sentence.

What are Pretrial Diversion (PTD) or Pretrial Intervention Programs (PTI)?

Usually available to first-time offenders, the State will suspend prosecution of your case, and ultimately dismiss the charges, if you sign up with and complete a “diversion program.”

What does it mean to seal or expunge a case?

You may very well be eligible to seal and expunge your case after it has been resolved.  When a case is sealed or expunged, information about that case is no longer available to the public. 

So the cop pulls my husband/son or daughter over and stops him.  He tells him he’s under arrest for a crime…what should my husband/son or daughter tell him?

Simple:  4 WORDS:  I WANT A LAWYER

What is an Arraignment?

An “Arraignment” is a court hearing in which the prosecutor announces to the Judge and informs the accused whether the State of Florida – through the Office of the State Attorney -- will file formal charges or not.  The Public Defender’s Office, which keeps statistics, estimates that The Office of the State Attorney files formal charges on about 60% of cases each year.

Do I have to go to the Arraignment?

If the case is in Miami-Dade County, I typically tell clients to go to work and to skip the arraignment.  Our office prepares a “written plea” which lets the court know that we represent the particular client, and that we plead “not guilty,” demand discovery and so forth.

Do I testify at the Arraignment?

No.  If you decide to go, I do all the talking.  That’s why you hired me.  And remember, this is not an evidentiary hearing…it’s simply the hearing in which formal charges are announced by the State, and your lawyer enters a “not guilty” plea on your behalf.

Will the victim, the cops, the store owner – or whoever accuses you – be at the Arraignment?

Probably not.  However, all court hearings are open to the public and every once and a while, I’ve had a really pissed-off victim/witness show up.  Do not worry, THEY DO NOT TESTIFY and THIS IS NOT A TRIAL.

What else can happen at an Arraignment?

Well, the State Attorney may make a PTI Offer or they may make some other “plea bargain.”

What is the effect of a “no action?”

Your case is over. 

 

The State couldn’t prove the allegations recited in the complaint, (that’s the yellow sheet of paper the cop who arrested you gave you…you know:  the one that’s really hard to read) a witness changed their mind…the cops didn’t show to the Pre-file Conference.  In short, there’s a bunch of reasons that cases are not filed. 

Will it show on my record?

An arrest will still be on your record until you have it expunged (or sealed).

Damn, can I sue the cops?

Sure, I will be happy to refer you to an attorney who handles that sort of thing, (and good luck proving damages). 

What is a Pre-File Conference?

It’s how the State decides which cases to prosecute and which cases to “no action.”

 

In much the same way you came to meet with me and to discuss the facts surrounding your case, the State Attorney or Prosecutor will also meet with the police officers, witnesses and victims to see if they have a good case against you. 

 

In theory, at least, the State Attorney’s Office should file charges on cases ONLY where they have probable cause to believe a crime has occurred.

 

Let me tell you a secret:  If you look closely at your A-Form – you know, the yellow carbon sheet that you can’t read very well – the cops will often hand write the time and date (as well as the name of the intake or Pre-File Prosecutor) on the back or a corner of the A-Form.

 

You should immediately let your attorney know.  Often, defense attorneys “get in early” at the Pre-File Conference, and are sometimes allowed to present their side of the story in the hope that the State won’t file charges at Arraignment

What is an Information?

The formal charging document – which lists the charges against you – is called an Information.  In capital or death cases, it’s called an Indictment and is handed-down by a grand jury. 

Can the State file charges against me when I know that the victim does not want to testify?

YES.  This question most often comes up in the domestic violence context where the client, and his paramour or spouse, are now together again – often despite a stay-away order and pending aggravated battery charges.

 

Always ask yourself: 

 

Who else may have witnessed the (alleged) crime?  (Neighbors may be subpoenaed to testify). 

 

Is there a 911 tape? 

 

Are there pictures of injuries? 

 

Are there medical records confirming the injuries? 

 

And finally, did you make an admission or confession to the cops?

 

So, yes, the State can proceed (and if your unlucky enough to have been arrested in Broward, the State WILL proceed), but it won’t be easy for them to prove up the crime without a cooperating victim.

Is it true that if the State doesn’t file charges within 21 days, my husband/boyfriend/significant other can get out of jail?

No.  Typically, the State has 40 days from the date of arrest to file a charging document, which is called an Information (or an Indictment in capital cases).

 

However, it’s the policy of the Office of the State Attorney here in Miami-Dade County to arraign defendants within 21 days of arrest.

 

Now, if the State doesn’t file charges on the 33rd day, and the accused is in custody, I can ask the judge to “ROR” (released on own recognizance) the client in custody with a promise to appear in court at a later date. 

 

Unless there’s something really wrong with the case, no Judge is going to release a defendant “on his own recognizance” 21 days after arrest. Typically, the State asks for extensions to the 30th and 33rd day…all the way up to the 40th day, if the State shows what’s called “good cause.”

 

The good news is that no defendant may be detained beyond 40 days without a charging document being filed.

How do bonds and bondsmen work?

They’ve got the best job in the world.  Think about it:  Bondsmen are really just agents for the insurance companies and they make 10% (by law) of the total amount of the bond, by posting the insurance companies money.  As soon as person is arrested by the police, he or she is transported to one of our jails and processed.  Typically, the person will be able to bond out, except in the following situations:

 

  • The person is arrested for a non-bondable offense

  • The person is arrested for a probation violation

  • The person is arrested pursuant to a warrant (this is called an “alias-capias”)

  • The person is arrested for domestic violence

 

Clients that are arrested for a probation violation, or pursuant to a bench warrant, or for domestic violence, have to go before a Judge before pretrial release or a bond will be considered.

 

Clients that are arrested on non-bondable offenses have to request an “Arthur” hearing.

 

And finally, the 10% you pay the bondsman is their fee…you won’t get it back no matter what the final outcome of the case is.

 

If your family or wife or whoever posted the whole bond amount, that is certainly recoverable.  You need to go to the Bond Clerk at the 9th floor of the Richard E. Gerstein Metro Justice Building, and the money will be returned to you, plus the statutory rate of interest.

 

Bond amounts for particular crimes are determined by a local “bond schedule.”  I have included the local, Eleventh Judicial Circuit bond schedule to give you an idea of the amount of bond you will have to post, for example, for grand theft in the third degree, and many, many other crimes.

What are the crimes for which there is “no bond?”

- Arson

- Aggravated assault;

- Aggravated battery;

- Illegal use of explosives;

- Child abuse or aggravated child abuse;

- Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult;

- Aircraft piracy;

- Sexual battery;

- Lewd, lascivious, or indecent assault or act upon or in presence of a child under the age of 16 years;

- Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of person

  in familial or custodial authority;

- Burglary of a dwelling;

- Stalking and aggravated stalking;

- Act of domestic violence as defined in s. 741.28;

- Home invasion robbery;

- Act of terrorism as defined in s. 775.30;

- Manufacturing any substances in violation of chapter 893;

- Attempting or conspiring to commit any such crime; and

-Human trafficking.

What is an “Arthur Hearing?”

Both the United States Constitution and the Constitution of the State of Florida are clear:  an accused person is innocent until proven guilty beyond a reasonable doubt. 

 

Now, even in the worst of cases…the non-bondable cases we talked about earlier – kidnapping, murder and the like – an arrested person (remember he’s innocent until proven guilty in front of a jury) is theoretically entitled to a bond, and that’s where the “Arthur” Hearing comes in.

 

The purpose of the “Arthur” Hearing, then, is to try to fashion some form of pretrial release (bond) for those clients charged with “non-bondable” crimes.

 

It’s a little like a mini-trial, except that the standard that the State has to prove is “proof evident, presumption great;” a higher standard than, believe it or not, reasonable doubt.  First, has the State shown that the proof of the crime is evident and that the presumption that your client committed the crime is great?

Second, is there a condition, or combination of conditions that would reasonably assure the judge that the accused will show up at his or her hearing and protect the community from future harm? 

 

It really comes down to this question: “If I, the Judge, give the accused a bond – and he commits another crime while out on that bond – will I be on the 6:00 p.m. news and lose the next election?  Put another way, will conditions of pretrial release, for example an ankle bracelet, house arrest, and so forth, be enough to keep the client from committing more crimes?  Think:  Community safety.

 

And before I go on, yes, there was a Danny Arthur, the defendant who leant his name to this hearing. (You can look up and read the case yourself, it is State of Florida v. Arthur, 390 So.2d 717 (Fla. 1980).

What’s a Sounding?

It’s a scheduled court hearing, usually ten to fifteen days before the trial date, to see how the case is progressing.  Unless told otherwise (or excused by the judge), you should be there.

What are depositions?

A deposition is an interview or testimony taken under oath of any or all witnesses in a case by the defendant’s attorney after formal charges have been filed. In most cases, an assistant state attorney will also be present during the deposition which may be recorded by either a court reporter or by a tape recorder which will later be produced into a written transcript. The defendant is not present during the deposition which is taken outside the courtroom, usually in a private office. The defense attorney may elect to subpoena witnesses for a certain date, time and place and, if they fail to appear they may be held in contempt of court and the case may be continued.

What can I expect at trial?

A jury is selected by the state and defense attorneys and seated as the first item of procedure.

The trial begins with an “opening statement” from the assistant state attorney, hereinafter called “prosecutor” and the defense attorney. The opening statement outlines the facts that each party expects to establish during the trial. The prosecutor presents the state’s case first by calling and questioning witnesses on “direct examination.” After direct examination of each witness, the defendant’s attorney is permitted to question the witness by “cross examination.”

After the state’s presentation, the defense is entitled to present its case by direct examination followed by cross examination of each witness by the prosecutor. Finally, each attorney presents a closing argument which offers a summation of the facts presented during the trial.

The judge then instructs the jury on the law, defines the issues and instructs the jury to reach a fair verdict based on the evidence. The jury’s deliberations are in private and, in order to convict, their verdict must be unanimous. Again, victims and witnesses have the right to be present in the courtroom and may not be excluded during any court hearing or trial unless, upon motion, their presence is determined to be prejudicial by the Judge.

What can I expect at trial?

A jury is selected by the state and defense attorneys and seated as the first item of procedure.

The trial begins with an “opening statement” from the assistant state attorney, hereinafter called “prosecutor” and the defense attorney. The opening statement outlines the facts that each party expects to establish during the trial. The prosecutor presents the state’s case first by calling and questioning witnesses on “direct examination.” After direct examination of each witness, the defendant’s attorney is permitted to question the witness by “cross examination.”

After the state’s presentation, the defense is entitled to present its case by direct examination followed by cross examination of each witness by the prosecutor. Finally, each attorney presents a closing argument which offers a summation of the facts presented during the trial.

The judge then instructs the jury on the law, defines the issues and instructs the jury to reach a fair verdict based on the evidence. The jury’s deliberations are in private and, in order to convict, their verdict must be unanimous. Again, victims and witnesses have the right to be present in the courtroom and may not be excluded during any court hearing or trial unless, upon motion, their presence is determined to be prejudicial by the Judge.

What is ROC Court?

Repeat Offender Court.  Florida also has the toughest repeat offender laws in the U.S.  Whether you’re a Prison Releasee Re-offender, a Habitual Violent Felony Offender or a Habitual Felony Offender, I specialize in cases referred to Repeat Offender (or “ROC”) Court.

What’s a Min/Man sentence?

Florida laws are tough on drugs, tough on sex offenders, tough on repeat offenders and tough on…well, just about everything.  Whether it’s “10-20-LIFE” case, a drug trafficking case, or an aggravated assault with a firearm case, a mandatory-minimum penalty is almost always in play.  This means that the judge doesn’t get to hear that you’re a good guy (or gal).  The judge has no discretion in sentencing.  He’s got to sentence you to the applicable mandatory-minimum penalty — 3 years, 7 years, 15 years.  You get the picture.

How does sentencing work in Florida?

Sentencing may occur after trial or on a separate date depending if specific circumstances warrant it.  The accused may either have:

  • A fine imposed

  • Probation

  • County Jail

  • State Prison

 

A sentence may be a combination of the above.  For example:  two years prison time, followed by one year of probation.  Sentencing may include other criteria which the court finds necessary.  For example:  A drug treatment facility for drug offenses.

What are the Florida Sentencing Guidelines?

In an attempt to have uniform felony sentencing throughout the state of Florida, the legislature adopted a sentencing guideline scheme. Often, the first thing a person who has been arrested for felony is worried about is whether he or she will end up in state prison. Depending on the nature of the crime, prior criminal history, and physical injury to the victim, for example, you may be facing Florida state prison. If your score sheet totals the requisite number of points necessary, you could be sent there.  If that number is greater than 44 — and assuming the judge doesn’t find a reason to “downward depart” from that guideline number — then you will probably receive a state prison sentence.

What is a downward departure?

A downward departure from the lowest permissible sentence (e.g. where the total points exceed 44), is prohibited unless there are circumstances or factors that "reasonably justify" the departure.

Florida’s mitigation statute recognizes fourteen bases upon which the court can lawfully depart from the low end of the guideline range. The burden of establishing the existence of a lawful departure basis is on the defense. The facts proffered in support of the departure basis must be proven by a preponderance of the evidence.

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