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Chapter 1 – 1.04 Procedures

CRIMINAL LAW

 

1.04 Procedures

 

                First Appearance(The Advisory)‑‑ An individual arrested with or without a warrant, charged with a crime and in jail, must be taken before a committing magistrate. At the time the individual is taken before the county judge or committing magistrate, the formal charges against the individual are read and a date is set for a preliminary hearing. At this time, inquiry is made as to whether the defendant has an attorney or whether the court needs to appoint an attorney for him.  The conditions of release or amount of bail will also be reviewed.  In Florida, this must be accom­plished within 24 hours of arrest for the defendant who remains in custody, and the issue of probable cause is determined..

THE CRIMINAL PROCESS

 

1.REPORT/DISCOVERY OF CRIME

 

2.PRE-ARREST INVESTIGATION

 

3.ARREST/NOTICE TO APPEAR/BOOKING

 

4.POST ARREST INVESTIGATION:SAO

GRAND JURY

 

5.FIRST APPEARANCE/ADVISORY HEARING (IN CUSTODY)

A.ADVICE OF RIGHTSB.BAIL

C.SOLVENCY/LAWYERD.PROBABLE CAUSE

 

6.INFORMATION/NO INFORMATION

INDICTMENT/NO TRUE BILL

 

7.PRELIMINARY HEARING

IF INFORMATION OR INDICTMENT NOT FILED WITHIN 21 DAYS OF ARREST AND ON RESTRAINT (BOND) OR IF IN CUSTODY

 

8.ARRAIGNMENT:

ENTRY OF PLEA

GUILTY

NOT GUILTY

NO CONTEST (COURT MUST CONSENT)

 

9.PRE-TRIAL MOTIONS

- CONTINUANCE- CHANGE OF VENUE

- DISMISSAL- WAIVE JURY TRIAL

- SUPPRESSION- BOND REDUCTION/INCREASE

- LIMINE- DISCOVERY

- SANCTIONS

 

10.PRE-TRIAL HEARING

 

11.TRIAL

 

12.SENTENCING

 

13.APPEAL

 

 

                Preliminary Hearing ‑‑ In many jurisdictions, a police officer must appear before the committing magistrate, prepared to establish probable cause to believe that the individual has committed the crime with which he is charged. This is normally done in a preliminary hearing where testimony and evidence are presented solely for the purpose of determining if there is probable cause to hold the indivi­dual for trial in the appropriate court. In Florida, the preliminary hearing, by court decision and rule, has been relegated to a non-ad­versary proceeding. Usually the finding of probable cause is made on the basis of an affidavit provided by the investigating officer to the judge at the time of the first appearance. If no probable cause is found on the basis of affidavit or, in some jurisdictions, after a pre­liminary hearing, then the defendant may be released from custody by the committing magistrate. A finding that probable cause does not exist does not prevent the defendant from being formally charged with the offense later by the prosecutor or grand jury.

                After the arrest of an individual on probable cause, the police officer and witnesses involved in the case appear before the prosecu­ting authority for the purpose of giving sworn testimony in that case. In the case of capital, or other cases bound over to the grand jury, the police officer and witnesses appear before the grand jury and give such testimony.

                If the Grand Jury finds probable cause to believe the individual committed the crime charged, then the Grand Jury issues an Indict­ment or true bill, which is the authority upon which the defendant may be tried in circuit court. For other crimes, if the prosecutor, after reviewing the testimony, feels that there is sufficient evidence to establish a prima facie case, or probable cause to believe that the defendant is guilty of the crime with which he is charged, then he or she may formally charge such individual with whatever crime deemed appropriate, in an Information. An Information is the formal, legal, charging document, signed under oath by the prosecutor, reciting the defendant's name, the date of the offense, and the offense with which he is charged. Where cases are dismissed by the committing magi­strate, a police officer may apply to the Prosecutor's Office for an investigation and the filing of an information. Where the Prosecutor, upon his investigation, feels that an Information should be issued, it is prepared and signed, an arrest warrant is issued, and the defendant is arrested.

                Arraignment‑‑After the defendant has been charged, either in an Indictment or by Information, a court date is set for his appear­ance before a Judge, at which time the formal charging document is read and the defendant is asked to enter a plea. The defendant may either plead guilty, nolo contendere, or not guilty. Where a plea of guilty or nolo contendere (no con­test) is entered, there is no trial for the individual, and the next step is sentencing. When a plea of not guilty is entered, then the defense counsel is given a cer­tain number of days to file appropriate legal motions, and the case is then set for trial.

                Pre-Trial Motions‑‑Between the time of the Arraignment and the date set for trial, defense counsel may file appropriate legal mo­tions attacking the sufficiency of the charge. The motions include motions to dismiss, motions to suppress physical or tangible evi­dence, and motions to suppress statements or confessions. In the case of the latter, the police officer will be subpoenaed back into court to offer testimony to substantiate the seizure of evidence and/or the taking of statements from the defendant.

                Trial--An individual has a right under the Constitution of the United States, when charged with most criminal offenses, to have a trial by a jury of his peers. At the trial, the jury determines issues of fact and renders a verdict of guilty or not guilty. If the verdict returned is "not guilty," the defendant is discharged forever from the charge. If the verdict returned is "guilty of the crime charged" or any lesser included offense, the defendant is held for sentencing by the judge.

                Most crimes charged encompass what are known as "lesser in­cluded offenses." A jury, may return a verdict of guilty as charged, or guilty of any one of the lesser offenses included in the charge, which they believe the state has proven beyond a reasonable doubt. They must convict the defendant of the highest offense they be­lieve the state has proven. If no offense has been proven beyond a reasonable doubt, the jury of course must find the defendant "not guilty ."

                Sentencing‑‑Upon the return of a verdict of guilty by the jury, the judge brings the defendant on for sentencing, often after a pre-sentence investigation has been completed. It should be noted that an individual is not convicted of a crime merely by the returning of a verdict of guilty by the jury. It is necessary for the judge to for­mally adjudicate an individual guilty of an offense before a person is truly convicted of a crime.

                Appeal‑‑ In many instances, a defendant may seek to appeal the decision of the jury or the decision of the court with regard to sen­tencing or matters of law determined at trial to a higher court. Such an appeal is usually taken to an intermediate court of appeals and may thereafter be appealed to the Supreme Court of the state and on through the federal system, depending upon whether or not a federal constitutional right has been abridged by the state and all efforts to seek relief in the state courts have met with negative re­sults.