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“What?! I’m Under Arrest”?

Posted by Scot D. Goldberg | Jul 31, 2014 | 0 Comments

What Happens Next Depends Entirely on What You Say – or DON'T Say.

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There's a saying that goes, “bad things sometimes happen to good people”. For a variety of reasons, you may find yourself being placed under arrest and being accused of a crime. But, thankfully for the people of the United States, there is another saying that comes into play here, and that is, “a person suspected of a crime is presumed innocent until proven guilty”.  Well, that's a good line from our constitution, but the reality is that a person does not feel that way when they get arrested.  The bottom line is that it is the responsibility of the accuser to prove, beyond and to the exclusion of any reasonable doubt, that the accused is in fact guilty.

Being placed under arrest, no matter what the circumstances, can be a daunting, traumatic experience. The fear of the unknown, the uncertainty of what the future will bring and how it will affect your life moving forward – all of these things can seem overwhelming.

As criminal trial attorneys who are thoroughly well versed in all facets of criminal law in the state of Florida, our job is to represent those who have been accused of committing a crime. Now, let's be clear – in some cases, it is evident that the person accused of a crime is guilty. Yet even in cases like those, the accused will still have the opportunity to sit down and talk to a criminal defense attorney, who can help broker a deal with the state attorney's office on that particular offense.

Yet in many cases there may be circumstances, both apparent or those discovered through the discovery process of a skilled criminal lawyer, which may have an effect on the accused being found guilty or innocent of a crime.

I'd like to explain exactly what you may expect if you have been arrested and accused of a crime, and some of the details about how a criminal defense lawyer can go about the process of proving your innocence completely, or at least reducing the severity of the punishment you receive – things like:

The Arrest

There are a few different circumstances that could lead up to you being placed under arrest. If a law enforcement official witnesses what he or she believes is a crime, they have the right to place you under arrest. In other cases, there may be an individual who has reported your suspected criminal activity, and alerted law enforcement as to your involvement. In these cases, an investigation begins, and if authorities in charge of the investigation believe there is enough evidence to place you under arrest, a warrant will be issued. In most cases, the police will not have enough evidence to place you under arrest, so they will ask to talk with you about the situation.  At that point, tell them that you are willing to fully cooperate with the investigation, but you want your attorney present before being questioned.

Here's the important thing you need to realize – the law enforcement agency that is conducting the investigation of a crime is trained to lie to the accused to get them to answer questions about the case.  This is not only legal for them to do, its standard operating procedure for most agencies.

Do not fall into this trap.  Have an attorney present.

As soon as you are placed under arrest, and before you are asked any questions about the crime you are alleged to have committed, the law enforcement officials are required by law to advise you of your legal rights at that time. These are called Miranda rights, which are guaranteed under the U.S. Constitution. The core of these rights require that you are immediately notified that you are under no obligation to speak to law enforcement officials about any alleged criminal accusations. They also require that you be informed that you are entitled to representation by an attorney, and that if you cannot afford to hire one, the court will appoint one to handle your case. Even if they do not read you your Miranda rights, do not answer any questions until a lawyer is present – EVER!

Your Miranda rights are a critical component of your arrest. However, most people think that if the accused was not given their Miranda warning, their case can be thrown out.  Not true! Miranda concerns your constitutional right to have an attorney present when you are in custody and being questioned about a crime. If for any reason it can be proven that you were never informed of these rights under the law, then any statements you made during an interrogation cannot be used against you.  But, the mere fact that they did not read you your Miranda statement is not, by itself, an automatic reason to dismiss your case.

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Making Bail – Getting Out of Custody

Once you are placed under arrest, you will be transported to the Lee County Jail facility in downtown Fort Myers for the booking process, if the alleged crime took place in Lee County. Your photograph and fingerprints will be taken, and you will be required to answer basic questions – date of birth, address and other similar information. Law enforcement officials will also investigate whether you have any prior arrests or past criminal history. Any personal items – cash, jewelry, etc. – will be taken from you and kept by jail staff until your official release.

In Florida, the law stipulates that you must make an initial appearance before the court within 48 hours of your arrest. However, most people see a Judge within 24 hours.  At this time, the presiding judge will appoint an attorney if you do not have appropriate legal representation. The judge will also make the determination as to whether there was probable cause for you to have been arrested in the first place. In some cases, law enforcement officials and the judge will disagree on the circumstances leading up to your arrest. If the judge finds that the arrest has been conducted within the guidelines set forth by Florida law and the U.S. Constitution, he will then set bail.

In cases where the accused has no criminal record or is accused of a minor misdemeanor crime, the jail itself may set the bail fee.

Bail is a form of bond or guarantee meant to ensure that if you are released from custody, you will return at the pre-determined times and dates set forth by the court in order to stand trial for your alleged crime. Bail is a sum of money that has been determined by the judge, and can range from no bail at all up to millions of dollars, depending on the specific circumstances of your individual case. However, not all cases are considered bondable offenses. Serious capital crimes like murder, where the suspect may be subject to the death penalty if found guilty, are not bondable offenses. Also, you may not be allowed to post bond if your offense is violating your probation.

In Florida, there are two ways you can post a cash bond to gain your release from custody. A cash bond can be paid to the court system by you, or a friend or relative. At the end of your case, the initial bond amount will be refunded to whoever posted it.

Since in most cases the bond amount may be a large sum, you may contact a bail bond company to arrange payment of your bond. When utilizing such a firm, you will be required to pay a percentage of your total bond amount – generally 10% – to the bail bond company, plus some form of collateral. You will not get the 10% portion of your bond money back – this is how the bonding agent makes their living.

The courts and law enforcement officials do not get involved with your arrangements with a bail bond company – any contract entered into is between the arrestee and the bail bond firm.

In some cases, you may be released on SOR, which stands for Supervised Own Recognizance. This means you'll be subject to strict rules requiring you to physically report to a PRO, (Pretrial Release Officer), and be subject to random drug and alcohol screenings. SOR is an alternative to posting bail for criminals who qualify.

Of course, since bail fees are designed to ensure you don't skip town and in fact return for your subsequent hearings and trial, your bail money will be forfeited should you not appear as required.

How Do You Plead?

The next proceeding is called an arraignment hearing, which needs to take place within a 30-day period from your initial court appearance. The arraignment hearing is where you will be required to enter your plea for the alleged crime – either guilty, not guilty, or no contest. A plea of no contest means just that – you are not contesting the charges against you, but neither are you admitting guilt.

Before your arraignment hearing, an attorney for the state will review your case to make the determination if there is sufficient evidence to proceed. If the state's attorney feels the evidence warrants moving forward with the charges against you, you will be formally charged. In Florida, the state's Rule of Criminal Procedure 3.191(a), known as Speedy Trial Without Demand, dictates your trial must happen within 90 days from the date of your arrest if it is a misdemeanor offense, or 175 days if you have been arrested for a felony. However, under Rule 3.191(b) is called Speedy Trial Upon Demand, and states that “every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days”.

This is all based on you having previously posted bail, and that you are no longer being held in custody. If you are still being held in jail, the formal charges against you must be filed with the court within 30 days from the date of your arrest.

Entering a Plea Agreement

In Florida, there are many criminal cases which are settled through the entering of a plea agreement. A plea agreement is structured when the state's attorneys prosecuting the case against you, and your criminal defense attorney, agree to a proposed resolution.  A plea agreement usually contains details in which all parties agree that you will plead guilty or no contest, or possibly a lesser charge than was originally filed. The plea agreement is presented to the judge, who may or may not accept the conditions of the agreement – but in most cases, it will be accepted.

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Your Trial

If in fact you proceed to a jury trial, your criminal defense attorney and the state's prosecuting attorney will set a date with the court. Florida law and the U.S. Constitution entitle anyone accused of a crime the right to a trial before a jury of their peers, which simply means a group of local citizens selected at random from eligible area residents.

At the jury trial, the state's prosecuting attorney has 100% responsibility for proving each and every element of the crime, beyond and to the exclusion of any reasonable doubt of your guilt. The entire burden of proving you guilty rests on the state – your criminal defense attorney has no obligation to prove your innocence. Depending on the severity of the alleged crime, a trial can last only an hour or two, or can stretch out for months or even years in the case of an accused murderer, or similarly heinous offense. Any witnesses will be summoned to appear before the court and provide testimony either on your behalf, or supporting the prosecutor's case against you. The exact details – down to the most seemingly inconsequential facts – will be presented by each side.

If you are found guilty of a misdemeanor offense, the judge will usually hand down a sentence immediately. If convicted of a felony offense, the court's probation division will need to conduct a PSI, or Pre-Sentencing Investigation, so sentencing will usually be set for a later date.

Being accused of a crime and placed under arrest can be a daunting experience, but it is not the end of the world.  But, if you take only one thing away from reading this report, please remember – do not answer any questions, beginning from the minute you start interacting with law enforcement, without your attorney present. Your attorney will be prepared to fight aggressively to ensure that your full legal rights are protected.

I'm attorney Scot Goldberg, and my Partners at Goldberg, Racila, D'Alessandro & Noone and I are available to speak to you any time, day or night, at no cost to you. Call us at 888-461-2919 and let us help.

The information is for informational purposes only and is not, nor is it intended to be, a source of solicitation or legal advice. Use of this information does not create an attorney/client relationship. Individuals should not rely solely on the information contained in this report when making decisions regarding legal matters, and should consult with a qualified attorney for legal advice. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.

About the Author

Scot D. Goldberg

Local People. Local Practice. Local Knowledge. Scot Goldberg is a founding partner of the Goldberg Law Firm. See his attorney profile for more information.

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