As you may or may not know, every state has its own set of rules or procedures for how, mechanically, a case goes through the criminal court system. Today, I’m going to give you a look under the hood of Florida’s system. We’ll start with the point of arrest and go all the way through trial.
A person who’s arrested in Florida, for any criminal offense, is taken directly to jail, just like it says in Monopoly – do not pass Go, do not collect two hundred dollars.
At the jail, some sheriff’s department employee will be responsible for the booking procedure, which includes getting your name, getting your birth date, taking your picture, taking your fingerprints and entering all of that into the computer, so that now there is a record of you. They’ll add to that the agency case number, which is a number designated by the law enforcement agency that made the arrest.
At this point, the booking officer will take a look and see if there’s a standard bond schedule in place in the county in which you were arrested. If so, they will set the standard amount of bond, which is your temporary bond. I say “temporary” because you have from that moment until the first appearance bond hearing, which I’ll explain in a minute, to post bond and be released pending further proceedings.
In Florida, everyone who gets arrested and does not bond out is entitled to have what we call a “first appearance bond hearing”. That is, they appear in front of a judge or magistrate. The judge or magistrate’s job is to review the arrest report, make a preliminary non-adversarial finding whether the facts alleged in the arrest report are sufficient to establish probable cause to believe that a crime was committed and that you’re the one who committed it.
If the judge finds no probable cause, the judge may release you without having to post a bond. We call that release on your own recognizance or R.O.R.
If the prosecutor at your first-appearance bond hearing asks the judge, a judge has the discretion to hold you for twenty-four hours, give the State twenty-four hours to supplement the police report with additional information, and the judge can review your bond situation the following morning.
If there’s a bond already in place from the bond schedule, you don’t have to wait. You can go ahead and post bond. But if you’re hoping for an R.O.R. release, you may sit another day.
In Florida, a person can be held without bond, but only for certain crimes. A person can be held without bond for any crime punishable by life or death.
A person may also be held without bond on a violation of probation, but that’s because violation of probation, strictly speaking, isn’t a crime at all. It’s merely a violation of a judge’s prior sentencing order, so different rules apply there, and one of those rules is no automatic entitlement to bond.
Now, a person who can’t bond out because of the conditions, monetary or otherwise, that the magistrate or judge sets at first appearance, can take basically a second bite of the apple. The judge or magistrate holding the first appearance hearing is done with you and your case at the end of that first appearance hearing. Your case then gets assigned to a trial court judge. Theoretically, it could be the same judge, but it doesn’t have to be.
In any event, once your case gets assigned to the trial court judge, you and your lawyer can file a motion asking that judge to review your conditions of bond and adjust them (lower your bond, remove or adjust certain conditions).
Once you have either bonded out or realized you are not going to bond out, the clerk’s office places your case on a virtual conveyor belt. Unlike civil court, where cases don’t move at all unless one side or the other takes action to move them, in criminal court, the clerk’s office pushes the cases along.
Your first court appearance after a first-appearance bond hearing is what we call “arraignment”.
Arraignment is an old-fashioned proceeding. The purpose of arraignment is for the trial judge to make certain that you understand exactly what it is that you’ve been accused of by the government of the State of Florida.
So, if you go to court for your arraignment, when the judge calls your name, you will walk up to the lectern, or these days you might be appearing on Zoom or some other video conference, but the judge calls your name, identifies you and then explains to you what you’re charged with.
For example, the judge might say, “Mr. Jones, you are charged with the crime of DUI, Driving Under the Influence. Do you understand the charge?” If you say no, the judge will take out the statute book and read you the legal definition of DUI in Florida, and ask again, “Do you understand what you’re accused of?” If you say no a second time, the judge will read the statute again, perhaps slower and more loudly. Eventually, you’re going to say yes, you understand.
The judge will then ask you, “Do you want to be represented by a lawyer?” You have a right to hire any lawyer you want. You have a right, if you cannot afford a lawyer, to apply for the services of the Public Defender. That would require you to fill out a financial affidavit and a clerk of court will decide which side of the line, indigent or not indigent, that you fall on.
You also have the right to represent yourself. At an arraignment, a judge probably will give you a basic warning on the dangers of representing yourself, but probably won’t push it at this stage.
After clearing up whether you want a lawyer or not, the judge will ask you, “In response to the charge or charges, how do you plea?”
A person can plead guilty, which says, “I admit that I committed this crime, and I have no defense or justification.”
Or a person could please not guilty, which says either, “I didn’t do this crime” or “If I did, I have a legal defense or justification.” An example of that might be self-defense or legal insanity. You might have heard the term “Stand your ground” (we’re going to talk about that in an upcoming podcast) is basically a subset of the traditional self-defense.
A person also could plead no contest. No contest, strictly speaking, says, “I’m not admitting or denying this accusation. I am simply choosing not to challenge it or contest it.” That should feel very much like pleading guilty because it’s almost exactly like pleading guilty. In fact, it’s pleading guilty without saying the word “guilty”. In other words, a judge will treat a no contest plea exactly the same as the judge would treat a guilty plea. And the judge would then proceed, either immediately or at a later date, to conduct a sentencing hearing.
At a sentencing hearing, of course, the judge would be deciding exactly what punishment will the judge impose on you, as a result of your guilty or no contest plea.
At a sentencing hearing, the judge is free to impose any legal sentence, anything from the minimum that the legislature has established as mandatory, up to the maximum, which the legislature has established as the cap or ceiling.
In the event that a person pleads not guilty, their case then goes back on this theoretical conveyor belt, pushed by the clerk, toward the possible, eventual trial. There may be a number of stops on the way to trial.
I find that, since I take cases all over Florida, different courts use different terms to describe this. Some call it a docket call. The “docket” is the word we use to refer to the court calendar. Some call it a calendar call. Some merely call it a pre-trial hearing or a case management hearing.
When the case arrives at this hearing, the judge typically will ask both sides, the State and the defense, “Is this case ready for trial?” If it’s ready for trial, the judge will set a date for jury selection. If the case is not yet ready for trial because one side or the other has more work to do to get ready, then the judge will grant what some people call a continuance. In some places in Florida, it’s called a postponement. In some places, it’s called a reset.
Whatever it’s called, it means that the case goes back onto this theoretical conveyor belt and gets pushed down the road to the next cycle.
The judge at this case management conference can also set a hearing date if the sides have reached an agreement on a plea, instead of a trial. Sometimes, a judge will have time to take a plea agreement right there at the case management or docket call, but often times, for the convenience of everybody else, it’s set for a separate date.
Now, you’re envisioning your case traveling on this conveyor belt, and once every cycle, which in my experience is typically every four to five weeks, the conveyor belt turns into more of a rotisserie or ferris wheel. That’s for the case management conference or docket call (or whatever we’re going to call it. At that stage, at that hearing, a judge actually checks, one by one, on the status of every single case in that judge’s open inventory.
So, cases get reviewed on a regular basis, and that’s intended so that cases don’t fall through the cracks, so the judges can push both sides to do their jobs and get this case ready so it can be solved. And it’s also, in many instances, an opportunity for the judge to verify that the person is complying with bond conditions and hasn’t fled the jurisdiction.
Generally speaking, if you are the defendant in a pending criminal case, you’re required to attend all of these hearings. But there are exceptions.
For example, going back to the arraignment, the people that wrote the rules of Florida Criminal Procedure, may expect if you have a lawyer, your lawyer can explain to you what exactly you’re charged with and you don’t really need the judge to do that. For that reason, you don’t have to appear in person for arraignment if you have a lawyer. Your lawyer can appear in your place.
In fact, your lawyer can waive the arraignment altogether by simply filing a document called “a written plea of not guilty” and a waiver of arraignment.
When I was a very young lawyer, when every hair on my head was jet black and I couldn’t grow a mustache let alone a beard, arraignment was actually an opportunity to resolve some cases early on. Prosecutors would bring the files to court and had already become pretty familiar with the background of the case and the background of the accused person. But because of the growth in workloads over the last thirty-five-plus years, arraignment doesn’t serve that purpose very much any more. Oftentimes a prosecutor’s office will send one or two of its lawyers over as more or less officers of the day. The files may or may not accompany them, but even if they do, prosecutors don’t seem to be anywhere near as familiar with their cases at this stage as they were in the good old days.
For that reason, I almost never go to arraignment in person any more. On my cases, I will almost always file a written plea in advance so that my client doesn’t have to take off work to go to court and so that I don’t have to waste time going to court for no real purpose.
Likewise, at most pre-trial case management hearings or docket calls, these status conferences, you’re required to be there, you’re entitled to be there, but you don’t have to be there if you sign in writing a waiver of your right to appear.
Of my cases for my clients, unless there’s a really good reason for them to be in court for the status hearing, I would accommodate them by letting them sign a waiver of appearance that we prepared and we’ll file that. Most of my clients would prefer to not take the day off work and go on to work or go on to sleep or go on to go fishing. They probably have something better to do than just a status conference, if the likely outcome is that the case gets postponed and no other significant development.
Let’s talk about timing so you can know what to expect. As I’ve said, I take cases all over Florida and I find this to be true just about every place.
Prior to COVID, a reasonable period of time for a misdemeanor case to go through the system from arrest to ultimate resolution, whether that was dismissal, plea agreement or trial, typically was three to six months. I find it’s about twice that now because of the interruption of the norm caused by the Coronavirus.
Prior to COVID, felony cases in my experience, for the most part, would stay open six to nine months. Obviously, there were exceptions. Certainly, there are a lot of things that a lawyer can do that result in a case taking sometimes quite a bit longer. There are also, of course, moves that, in normal times, a lawyer can make to make a case get to the finish line much faster.
In an upcoming podcast, I’m going to talk about Florida’s speedy trial rules. I’m not going to bother with that today because about a year ago the Florida Supreme Court suspended Florida’s speedy trial rules for the duration of the COVID pandemic.
So, there aren’t a whole lot of things these days that your lawyer can do to get your case to the finish line faster. I’ll also tell you what I always tell my clients – we want to get you the best possible result, not necessarily the fastest possible result.
You might have suspected from what I’ve told you so far that getting a case to trial can be a challenge. And you’re right. There are a number of things along the way that slow things down.
Once I’m at a docket call and my case is ready for trial, and the judge calls my case, I will say, “Ready for trial.” Hopefully, the judge will give me a trial date in the following week or two.
Sometimes, that doesn’t happen. Sometimes, the prosecutor is not ready, for one reason or another, and the judge would grant their request for a postponement. If that happens, back on the conveyor belt we go.
Sometimes, because of the number of cases that announce “ready” at a docket call, a judge will have a preliminary, additional step that, around the Treasure Coast, they call a “mini docket call”. That’s basically a weeding out process so we can appear a day or two before when the actual trial would be and tell the judge that we’re really, really ready.
At that point, the judge would also want to know from any of the lawyers if there are any witness scheduling problems or any lawyer scheduling problems. Because judges want to have enough jurors to try the cases that are set, but they don’t want to inconvenience jurors unnecessarily. A judge doesn’t want to have a couple hundred people come in for jury duty, especially these days, if there really aren’t enough cases that are actually going to go to trial.
So I can announce “ready for trial” at a docket call and then come to a mini docket call. And typically, the judge will have a mini docket call to cover what’s going to go to trial the following week. The judge will try to identify, for the judge’s sake as well as for the lawyers and their clients, what’s the order of cases for trial next week, who is likely to be first, second, third in line and so forth.
Most judges I know will still set more cases than they can get to, but that’s because we recognize that sometimes when lawyers and their clients take a good, hard look at a case a day or two before court, their opinion of what’s likely to happen may change and cases sometimes get resolved trhough settlement or dismissal.
Again, the judge doesn’t want to have a whole bunch of jurors in the jury room on a Monday morning and have all the cases go away. That happens, and it happens often but that’s not what any of us want.
So, here in general terms, we’ve taken your case from the point of arrest through the mini docket. Let’s say we now show up for jury selection. We’re first in line.
The judge will at some point bring a bunch of jurors into the courtroom. The jurors will be sitting in numbered seats, or at least they’ll be assigned seats. They’ll be sitting one through the end, let’s say there’s thirty for a relatively straight-forward misdemeanor case. So we have thirty potential jurors.
We call the process we’re going to go through “jury selection”, but it’s really “jury elimination”. Jurors are sitting in their numbered seats. The first six people who are not excused are going to be in your jury. Oftentimes, we’ll pick the next person who’s not excused to be the alternate. The alternate sits with the jury through the trial, but if none of the first six gets sick or dies or otherwise gets kicked off the jury, the alternate is thanked and excused and they do not participate in deliberations.
Jury selection, the most common method that I see is that a judge will initially interview the panel. For some judges, that means talking to the group of jurors as a whole. For other judges, it means, one by one, talking to every single juror.
We also are typically given, in addition to our seating chart, of course, a very, very superficial questionnaire. Typically, it’s one page and it may suggest certain things we may want to talk to individual jurors about, but it doesn’t tell us very much.
After the judge has finished talking to the jurors, the prosecutor goes next. The prosecutor will always go before the defense attorney. That’s because the burden of proof is on the prosecutor, and they’re going to go first in every stage of the trial.
It’s not unusual for prosecutors to feel that they must say something to every single juror in the panel. Once the prosecutor has completed their conversation with the jury panel, and with any individual jurors, then it’s the defense attorney’s turn.
The defense attorney has the option, if he or she wants, to speak to every single juror, as well. When the defense attorney is finished, typically, the jury is excused from the courtroom. They are kept out in the hall with a court security officer or bailiff, keeping an eye on things. The lawyers and the judge then discuss whether any juror or jurors ought to be excused.
There are two kinds of excusals in Florida. There is what we call a “cause challenge” and there is what we call a “peremptory challenge”.
A cause challenge, as the name suggests, is a juror can be excused for cause. In other words, if there’s a reason – if there’s a reason why, as a matter of law, this juror cannot sit on this case. It could be of who the juror is. If the juror is the spouse of one of the lawyers or the defendant, well, that’s grounds for them to be excused.
I actually had that happen in one of my cases. I was set to pick a jury in Federal court and my wife was in the jury pool. I actually went to court early that morning to let the judge know, but I also asked for a favor. I said, “Judge, I give you my word as a gentleman, in addition to my word as an office of the court, I will not let my wife get anywhere near actually serving on this case. But could we just be patient and see how long it will take for the prosecutor to figure out that that’s my wife?”
The judge agreed.
As we went through jury selection, the prosecutor was almost finished with his questions, and he finally said, “Is there anybody on the jury panel this morning who thinks they might already know something about this case?”
At this point, my wife raised her hand. He called on her. He called her “Mrs. Kessler” because that was her name on the seating chart.
Her answer was, “Well, my husband is the defense attorney and so I know quite a bit about this case.”
The judge lifted his court file to hide his laughter from the jury, and granted the prosecutor’s request to have my wife excused from the jury panel.
That’s an obvious example of cause.
Sometimes, jurors say something that requires them to be excused for cause. The something could be fairly innocuous (“I don’t speak English well enough” or “I don’t hear well enough” or “I have some other physical ailment that would interfere with me sitting for a lengthy period of time”). Those people can be excused for cause.
Sometimes it’s because something people say tells us that they can’t be counted on to be fair in this case.
For example, if a juror says, “I couldn’t find somebody not guilty unless they testified and convinced me they were not guilty.”
Well, that juror can’t serve because they’ve indicated they’re not going to follow the law. In a criminal case, the accused person is presumed to be innocent and doesn’t have to prove his or her innocence. The burden of proving the accusation is on the prosecution and it stays there through the entire trial. So anybody who says, “Well, unless the defendant testifies and I believe him, I couldn’t find him not guilty,” they’re not following the law. They can’t serve.
Part of the presumption of innocence, in fact, means that the accused doesn’t ever have to testify. A jury would have to be instructed that, if the accused person doesn’t testify, the jury can’t consider it as evidence of anything.
Sometimes jurors give us information about their life, their relationships, their experiences that make it inappropriate as a matter of law for them to sit on a particular case.
For example, if a person is accused of a sex crime or a crime involveing domestic violence, and a particular juror has been the victim of such a crime themselves or a crime like that happened in their family. Sometimes, they tell us that they aren’t certain they could be fair in that kind of a case and they might yield to their sympathy to one side or the other. That’s an example of somebody that might also be excused for cause.
A potential juror cannot be excused for cause based on their race or their religion or their ethnic background.
Sometimes there’s a juror that I don’t want on a jury, but I don’t want to give a reason. The law provides us with what we call “peremptory” challenges. Peremptory challenge is just a challenge for which I don’t have to give a reason.
In a misdemeanor case, in Florida, lawyers have three peremptory challenges. In a felony case, they have six. In a capital case, they have ten. And again, like cause challenges, peremptory challenges cannot be excused based on a potential juror’s religion or race or gender or national origin, things of that nature.
Because the jurors are sitting in numbered seats or we know their order, we also know if a juror is excused, who’s next in line. So a lawyer or a client can make tactical decisions – I don’t like juror number six, but I really, really don’t like juror number seven, so I’ll keep six, and keep seven off the jury.
The accused person is certainly entitled during this period to talk to his or her lawyer and have input on who should be kept and who should be excused. I always, always want to hear from my clients on their wishes, because even though I’m the experienced trial lawyer, it’s their case. It’s your case. It’s not my case.
I want to hear what you have to say about the people who are going to sit in judgment on the State’s case against you.
Once we have our six people, and an alternate if the judge wants it, the rest of the jurors are excused – they can go about their business, including sitting and watching the trial if they’d like. The people who are chosen to sit on the jury are then sworn in; they have to take the Juror’s Oath.
Then, according to the judge’s schedule, the trial will begin.
It’s not unusual, at least in this part of Florida, for the trial to begin the following morning, after the jury is picked and sworn in, but that could vary from place to place and based on the judge’s needs. I’ve certainly tried lots of cases in my career where we picked the jury and we did what we call “pick and go”.
Now you know how a case goes through the system, up through the beginning of your trial.