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Criminal Defense Frequently Asked Questions

Can Previously Sealed Records Ever Be Unsealed in Florida?

Yes, they can. There are certain circumstances where they can. The records always exist. They are not destroyed, if they are sealed. And, there are certain circumstances where a prosecutor or some agencies can ask the court for permission to unseal a criminal record. So the fact that the records exist, but they are sealed is very good for someone charged for that crime, however, records can still be viewed.

Can the Police Break down My Door to Enter My Home?

Yes, they can, but really only in a few instances. The first one is if they have a search warrant to enter and search your home. Law enforcement officers must first knock, announce that they are there, they are law enforcement and they have a warrant. They have to wait a reasonable amount of time for the person to answer the door, but if there is no answer, there is no response, law enforcement officers are allowed to breakdown that door to enter the home and execute the search warrant.

The other instance would be if law enforcement officers are chasing someone who has just committed a crime, a fleeing felon, and the person is running right into a home. There might be certain circumstances where law enforcement officers can run into the home after that person.

Do the Police Need a Warrant to Arrest Me in Florida?

No. In some cases, they do, but in a large amount of cases they absolutely do not. It really depends upon the type of crime that was committed. If a felony is committed, and the officer has probable cause to believe that the person they are investigating has committed the crime, they can execute that arrest. Misdemeanors: if an officer is going to arrest someone for a misdemeanor like a theft charge or something like that, they can (in certain limited circumstances) arrest even if it didn’t occur in their presence. There are certain crimes like batteries and domestic batteries, that the officers don’t need to see. But there are a lot of other misdemeanors that if the officer didn’t see it, he can’t arrest the person. He has to do a report and provide information to the State’s Attorney’s Office to make a decision whether or not to file charges.

If I Get Pulled over for a Traffic Offense, Can the Police Search My Car?

If the police pull you over for a traffic offense, they typically cannot search your vehicle. Unless there is for some reason probably cause to search your vehicle. So, if an officer pulls you over for speeding, and he comes up to the vehicle and he issues you a citation, there is really no probably cause there for him to search the vehicle. In some cases, a law enforcement officer may ask for consent to search the vehicle and you have every right to tell that law enforcement officer no. However, if there’s a situation where a law enforcement officer encounter rises to the level of probably cause, then he might be able to search your vehicle. An example of this would be if an officer pulls someone over for speeding, and when the driver puts the window down, the officer detects the smell of marijuana. Cases have said that that would allow to an officer to then search the vehicle.

What Are Miranda Rights?

Those are the warnings that a law enforcement officer is required to advise a person of before he or she is interrogated and if he or she is in custody. We kind of talked about this a little before. For example, an officer has someone arrested, and then that officer begins to ask that person questions about that particular crime, that person must first be advised that he or she has the right to remain silent, he or she has the right to have an attorney present during any questioning, he or she has the right to have an attorney appointed if he can not afford a lawyer and he or she can exercise these rights at any time.

What if My Child Is Arrested in Florida?

Well, when we’re talking about children who are being arrested or are being accused of crimes, there are certain rights afforded to them because of their age. The first thing, that you need to now, is that law enforcement officers must make an attempt to contact the child’s parent or legal guardian if he or she is not present, before the child is subject to questioning. As we talked about before, there are certain Miranda Warnings that the person who is accused of a crime or in custody is given before he’s interrogated. A child may appreciate how significant it is to wave those rights. A child may not know exactly what he’s doing. And, that’s why law enforcement officers have to make an attempt to contact the family. They don’t have to cease questions or stop the investigation if they cannot get in touch with the parent or legal guardian, but they must make an attempt. That is important and that is what you should know.

What Is a Common Law Crime?

A common law crime means  crime that has not been reduced to into writing, into certain statutes. It is a crime that has existed for a long, long time and has just been recognized. In the state of Florida, everything that is considered a crime has been written down in a specific law, a specific statute. What that means is that there are no common law crimes in Florida.

What Is a Federal Crime?

A federal crime simply means a crime that the United States is prosecuting versus the particular jurisdiction you might live, like a county or a state. A federal crime involves federal charges, federal prosecutor, federal judge, and has a whole different rule of evidence and a whole different rule of procedure. There is the Federal Rules of Evidence and the Florida Evidence Code, as well as, the Federal Rules of Criminal Procedure and the Florida Rules of Criminal Procedure.

What Is a Public Defender?

We talked before a little bit about the certain rights people have when they are accused of a crime. One of those rights is the right to a lawyer even if the person cannot afford one. The criminal justice system is designed to have an adversarial proceeding where there’s a person fighting for the defendant’s rights on one side and the prosecutor is fighting for what he believe is in the state’s best interests on the other side. A public defender is someone who is appointed, basically, and it is a specific office in each jurisdiction. His sole job is to represent those folks that do not have the financial means necessary to hire an attorney.

What Is the Difference between Jail and Prison?

Well, both jail and prison are areas where people are sent for confinement. Jail only holds people who are either awaiting trial, meaning there to answer charges, but have not yet been convicted or holds people who are sentenced to a crime and the confinement is less than a year. So if someone is going to serve a six month sentence, they don’t go to prison for that. They go to jail. If someone is in custody and can’t bond out until they answer their charges, they wait in jail.

Prison, first of all, is only for felonies. If you’re convicted of a felony, a person who’s been sentenced to confinement above a year will be sentenced to prison. Prison is only for people who have been sentenced. It’s not where they are sitting and waiting for trial. And prison is only for sentences longer than a year, that’s why a typical minimal prison sentence is one year and one day, because it’s greater than a year.

What Is the Role of the Prosecutor?

The basic idea of a prosecutor is a job of a person who represents the people of the state of Florida. And, his job is to prosecute crimes that have been brought to the state’s attorney office’s attention that have been committed. The really important question is who does the prosecutor have a duty to and who does the defense attorney have a duty to. The prosecutor has a duty not to win a case, not to a particular person, he has a duty to the entire state of Florida and a duty to seek justice. That doesn’t always mean he has a duty to seek a conviction. He has a duty to seek out an appropriate, fair resolution of a matter. The defense attorney’s duty is to protect one person. So where I, as a defense attorney, have a duty to protect my client, a prosecutor’s duty is not to help his office, not to help the people he works with, but to make sure he is doing what is just; sometimes that even involves dismissing cases.

What Should I Do if I Am Arrested in Florida?

The most important thing is to remember to stay calm, and know what your basic rights are. We kind of talked about it before, but your basic rights are this: you do not have to answer any questions you do not want to, you do not have to consent to anything you do not want to, and know this, if you do not know what you are able or allowed to do, ask for a lawyer. At that point, if you’re in custody in a situation where a lawyer can be provided for you, they have to allow you a chance to contact a lawyer, and then the unknowns you had in your mind can at least be resolved by talking to someone who’s trained in the law to help, protect and defend you.

Why Did I Have to Post Bond?

Everybody in the state of Florida is entitled to be released, minus a few exceptions. And, what the court does is determine whether or not you can be released without any money being posted up front. If because of the crime or the person’s prior criminal history, there is some concern about a person’s future attendance in court, the court will want some guarantee that the person is going to arrive. So they idea behind it is the person will pull up a sum of money that would cause them to think twice before just leaving the area and not showing up to court. If you person posts a cash bond, that money is returned to him at the end of the criminal proceeding. There are some crimes that we talked about. Crimes punishable by death. Crimes punishable by life imprisonment. Someone accused of these crimes is not entitled by right to a bond, but every other crime in the state of Florida, the person is entitled to a bond as a matter of right.

Why Do I Have No Bond in My Case?

There is only a couple instances where it is legal for person to have no bond or zero bond, and that’s when the person has been accused of a crime punishable by death or life in prison and that the evidence is great and the presumption is evident. Only in that circumstance can a judge keep a person in custody without the opportunity to have a bond.

The other instance where that can happen is if someone has committed a violation of probation. In a violation of probation proceeding, a person is in custody not because they committed a new crime, but because they violated the terms of their probation and their agreement with this judge. And, in that circumstance, to be out, probation is not a matter of right, but grace from the court. The court is entitled to remove that matter of grace until that person has their final violation of probation proceeding.