Plea-bargains In Your Criminal Case
It’s estimated that 97 percent of cases end in a plea instead of going to trial. However, it is important to have a Tampa criminal attorney who knows how to get the best bargain for his client. Ask your attorney about the possibility of:
- A Withhold of Adjudication
- Probation instead of jail (or prison)
- A reduction of some or all of the charges to a lesser offense
Working out a fair bargain for a client is a vital skill for a criminal defense attorney. Accordingly, it’s imperative that the criminal lawyer maintain a solid relationship with the state attorney prosecuting your case.
Motion to Dismiss Your Criminal Case
A motion to dismiss in criminal court is a motion made by your criminal lawyer requesting the Hillsborough, Pasco, or Pinellas judge throw out the case entirely. While the law generally disfavors a straight dismissal of the case because it takes the case away from the jury, there are some explicit scenarios where dismissing your case is an appropriate remedy. Specifically, the law explicitly allows the judge to dismiss a case for the following reasons:
- Statute of Limitation Violation
- Insufficient evidence as a matter of law (C4 Motion)
- Constitutional Grounds
- Speedy Trial Grounds
- Statutory Grounds, specifically the Stand Your Ground Law.
Your criminal defense attorney can always attempt to negotiate a dismissal of your case with the state attorney. However, in limited circumstances, your criminal attorney can file a motion requesting the judge, as a matter of law, dismiss your criminal case. The most common example of a motion to dismiss in criminal court is Fla. R. Crim. Pro. 3.90 (c) 4, or “C4″ motion.
A C4 motion is appropriate when the defense and the prosecutor do not contest the facts alleged, but disagree on what the law is that should be applied to the facts. In a C4 motion, the defendant must sign an affidavit admitting to relevant facts at issue. Then, the criminal defense attorney argues to the judge that those particular facts, as sworn to by the defendant, cannot possibly support a conviction for the crime alleged as a matter of law.
In Florida, a criminal attorney may be able to argue that the law or ordinance that the state is accusing you of breaking is unconstitutional, If the law is unconstitutional, then your criminal defense attorney can file a motion on your behalf demanding the case against be dismissed.
There are two ways a case can be dismissed because of an unconstitutional law. First, if the law is unconstitutional, then everyone charged with that particular crime should have their cases dismissed. Alternatively, a law could be constitutional as a general rule, but as applied in your particular case, with your particular and unique facts, it becomes unconstitutional.
First Time Offenders
Not all crimes are created the same and neither are clients. A first time offender, for example, will have different goals and necessary outcomes for his criminal matter than an individual who has been through the system before.
Avoiding a Criminal Record
Universally, those charged with a criminal charge for the first time strive to avoid a criminal record at all costs. All things else being equal a criminal conviction can result in:
- Lost jobs
- Inability to obtain employment
- Loss of the right to vote
- Loss of the right to bear arms
If this is your first arrest, your criminal attorney will seek to get your charges dismissed or have adjudication withheld. In other words, your criminal attorney will try to keep your record clean. Sometimes this can be done through negotiation with the prosecutor and other times, by getting the judge to withhold adjudication. And still other times, by utilizing diversionary programs.
After the Case is Over: Making it Go Away
When your case is over, if we have successfully gotten the state to dismiss your case or had the judge withhold adjudication, then you will be eligible to have your case sealed and/or expunged. In this process, we go through the Florida Department of Law Enforcement to either seal or incinerate the evidence of your arrest and criminal prosecution. We can even have your online arrest data removed.
The reality is that your children, grandchildren, loved ones, and employers will be able to go online and know everything about you. These are not things you want people to see. By sealing and expunging your arrest inquiry, you can protect your reputation.
Seal or Expunge Your Criminal Record
Your criminal defense attorney must consider not only the immediate effects of a potential resolution to your case but also the long-term effect. When possible, you need to seek a resolution that will keep your record clean.
The Negative Consequences of the Information Age
In the old days, a past indiscretion was precisely that: something in your past. The internet has changed all that. Now, your past can be found with a click of a mouse. Yes, your employer and future employers can do a criminal background check and see your past. Even more painful, the reality is that your children and grandchildren are going to be see the same thing if you do not keep your background clean.
Seal and Expunge: The Way to Keep a Clean Record
Fortunately, in many circumstances, you may be eligible to have your criminal record sealed or expunged. If your criminal charges were ultimately dismissed or dropped by the prosecutor, then you may be eligible to have your charges expunged.
If you pleaded to your charges, but ultimately received a withhold of adjudication, then you may be eligible to have your charges sealed, and then, ultimately expunged.
Seal and Expunge 101
If your Florida record is expunged, then the records from the court and most records maintained by law enforcement will by physically destroyed, although a copy of the file will remain with the Florida Department of Law Enforcement (FDLE).
If your Florida record is sealed, then it remains confidential and the public will not have access to the record through any government databases. However, certain government entities, including the police, have certain legal rights to access criminal records that are sealed under certain conditions.
If your Florida record is expunged, those same government entities that would have access to a sealed record would be told that a record was expunged, but would not have access to the contents of the record maintained by the Florida Department of Law Enforcement without a court order.
In either case, employers will not have access to the information through a background check.
The Charge You Plea to Will Determine if You Can Seal or Expunge
Your attorney must do a preliminary analysis of your potential resolution in any criminal case to determine if you will be eligible to subsequently have your charges sealed and/or expunged. Only after such an analysis can you determine whether the resolution is in your best interests or not. The Florida Statutes enumerate a lengthy list of disqualifying offenses.
For example, a DUI conviction cannot be sealed or expunged. However, a reckless driving charge with adjudication withheld can be expunged. Be sure that this is properly discussed with your attorney.
Right to Speedy Trial In A Criminal Case
Individuals accused of a crime in Florida are protected by both a constitutional and a statutory right to a speedy trial.
A Constitutional Right to a Speedy Trial
The constitutional right to a speedy trial is embedded in the 6th Amendment of the Constitution. If a delay caused by the prosecution has violated an accused’s right to a speedy trial, then the accused may be entitled to have his case dismissed upon motion by his criminal attorney. The totality of the circumstances of the following four factors must be weighed when determining if an accused’s Constitutional Right to a Speedy Trial was violated or not:
- The length of the delay, which can create a presumption of prejudice;
- Whether or not the reason for delay was negligent, deliberate, or justified;
- The defendant’s assertion of the right and effort to protect his right to a speedy trial, and
- Whether actual prejudice resulted from the delay.
A Statutory Right to a Speedy Trial
Florida has gone further to protect the accused from a potentially prejudicial delay. Florida provides a bright line test to determine if your rights have been violated; an accused must be brought to trial within 90 days of the charge for a misdemeanor, or 175 days for a felony.
If the accused is not brought to trial within the proper time limit, your criminal defense attorney will file a “notice of expiration” of a speedy trial, requiring a hearing on the matter within five days, and a trial date within 10 days. If the state is unable to comply, then your criminal attorney will file a motion to dismiss, or discharge, the case.
Florida also provides for the ability of the defendant, at any time, to demand a speedy trial if he is ready. Once the demand is filed, a trial must be held within 60 days; otherwise, the criminal defense lawyer will move to dismiss the case.
In many cases, your attorney will waive your right to a speedy trial so that he can have the time needed to build your defense. However, in some situations, your criminal lawyer will deem it appropriate to exercise your right to a speedy trial.