Your first court date is called the arraignment, at which the Court will accept a plea of guilty, not guilty, or no contest. A plea of guilty admits commission of the crime. A plea of no contest, like a plea of guilty, indicates to the Court that you do not wish to contest the charges against you. A plea of not guilty denies the accusations and demands that the matter be set for a trial at which the government carries the burden of proving its case against you. Should you decide to enter a plea of Guilty or No Contest at the arraignment, the Court will make you aware of the very important Constitutional Rights which you are giving up in doing so. In all criminal cases, the State has the obligation to prove your guilt beyond a reasonable doubt. You do not have to prove your innocence. Entry of a plea other than Not Guilty, relieves the State of their burden to prove your guilt. Entry of a plea of guilty or no contest sacrifices the very important rights you have to explain your side of the story regarding criminal charges filed against you. Once your plea has been entered, the Court is free to impose a sentence at its own discretion.

Hiring an attorney prior to the arraignment will eliminate your need to appear at the arraignment. Your attorney can file a Written Plea of Not Guilty, Notice of Appearance as your attorney and Waiver of your Appearance at the arraignment.

The offense of assault, a second degree misdemeanor, is often times confused with battery.  An assault is defined by Florida Law as putting another in fear by word or act of impending violence.  Thus, one can be charged with either assault or battery or both together. If an assault is committed against a law enforcement officer, with a deadly weapon, or with the intent to commit a felony, the crime is that of Aggravated Assault, a felony.  Certain minimum mandatory punishments may apply.

The crime of Battery may be defined as either a misdemeanor or a felony, depending upon the special circumstances surrounding your arrest. A so-called "simple battery" as defined by Florida Law is an actual and intentional touching of another person against their will which may result in injury. A simple battery is a misdemeanor of the first degree, meaning that it is punishable by up to one year in the County Jail, or one year probation, and up to $1,000.00 fine. If you have previously been convicted of battery two or more times before, or great bodily harm results from the battery, you may be charged with the crime of "felony battery". As a felony, the Court may sentence you up to five years in prison, or five years probation, and up to a $5,000.00 fine. You may also be required to pay the victim's medical bills and lost wages resulting directly or indirectly from the battery. Certain aggravating circumstances surrounding the battery may increase the degree of the offense to felony aggravated battery and therefore enhance the penalties you may face. These aggravating circumstances include battery on a pregnant woman, battery on a law enforcement officer, battery on a senior citizen, battery resulting in permanent disability or disfigurement, or battery with a deadly weapon or an automobile.  Upon conviction under these situations, the charge could subject you to minimum mandatory sentencing.

After being arrested, you have a right to be taken before a judge, who will advise you of your charges and your bail amount, if any. Your bail may be set by the Court in an amount to ensure that you will return for all court appearances and to ensure that you are not a danger to commit any new crimes while released pending the resolution of your case. In setting the amount of bail, the Court may consider the seriousness of the crime with which you have been charged, any prior criminal record that you have, your community ties, and financial resources. Should the bail amount be too large to permit you or a friend or relative to post bail, your attorney may be able to ask the Court on your behalf to reduce the amount of the bail if it appears excessive and may ask for other terms and conditions of your release, including, but not limited to, release on your own recognizance (your promise to return), pretrial release (which will require you to check in with the Court on a weekly basis), or home confinement (restricting your freedom to home and work until your case is resolved). If you cannot afford to post bail in cash, a bondsman can post a bail bond for you, generally upon payment of 10% of the bond (non-refundable) together with collateral to be held by the bondsman and returned to you upon successful completion of your criminal case.

Florida Law has created a special classification for batteries which are committed by family members against one another. This special classification creates additional mandatory penalties which may be imposed by the Court upon conviction. In the case of "domestic violence battery", law enforcement will oftentimes arrest an individual and charge them with domestic violence notwithstanding the victim's desire that the prosecution not go forward. This may be in large part because of law enforcement's belief that a victim of domestic violence may be incapable or unwilling to press charges for fear of retaliation. Consequently, an important part of the handling of a domestic violence case requires that the victim's desires regarding prosecution be made well known to the State. In cases of domestic violence, the Judge may (and generally will) impose restrictions upon a person charged before permitting their release from jail. These may include, but are not limited to, no return to the family home, no direct or indirect contact with the family members, and/or the imposition of home confinement and electronic monitoring by the Department of Corrections.

Civil Injunctions:
A person who feels that they are a victim of domestic violence, may obtain an injunction from the court upon a showing that he/she is in reasonable fear of imminent physical violence or threat of physical violence by another. Such an injunction is civil in nature and yet may have criminal implications. A Petitioner is the person who seeks the injunction. A Respondent is one against whom an injunction is sought. An injunction will generally be issued upon the showing to a civil judge that there is a great likelihood of continuing physical harm or threat of physical harm. The typical domestic violence injunction requires that the Respondent have no contact, directly or indirectly, with the Petitioner. Upon an allegations that the Respondent has violated the injunction, the Respondent may be charged criminally. As in all cases, the State would have the affirmative burden to prove beyond all reasonable doubt that both an injunction against domestic or repeat violence was in place against the Respondent and that the Respondent willfully violated the terms or conditions of the injunction. In extreme cases of direct violation of the injunction and/or a continuing pattern of violations, the State may charge the Respondent with the felony of Aggravated Stalking. Aggravated Stalking is a felony.

Possession - If you have been charged with the possession of a controlled substance under Florida Statutes, the State must prove not only that the substance was one of the enumerated substances controlled by Florida Law, but also that you were in possession of the substances at the time of your arrest. The State can prove possession in one of two ways.  First, the controlled substance may be in your actual possession having been found on  your person, in your hand, in your pocket, or in a purse or backpack attached to your body.  For obvious reasons, actual possession of controlled substances is a much easier for the State to prove. Alternatively, the State may attempt to prove your possession of a controlled substance which was in a vehicle in which you were a passenger, a house which you may have shared with others, or in a public location in your vicinity. Merely being close to suspected drugs is not sufficient to meet the State's obligation to prove constructive possession.

Penalties - Many drug offenses carry minimum mandatory criminal penalties.  Also, convictions of any enumerated drug offense may result in a suspension of your driving privilege for up to two (2) years. Penalties for various drug offenses may range from misdemeanor sentences for possession of a small amount (less than 20 grams) of marijuana or drug paraphernalia (pipes, bags, papers, razor blades, or soda cans) used in the consumption of drugs, to felony convictions for possession of large quantities of drugs, possession of prescription or otherwise regulated drugs or the sale/delivery of drugs.

The offense of Driving Under the Influence (DUI), like any other criminal charge, requires the State to prove your guilt beyond all reasonable doubt.  Ultimately, you are entitled to have the issue of whether you operated a motor vehicle while impaired by drugs or alcohol submitted to a jury for their consideration.  It is not necessary that you prove anything.  Rather, the burden rests with the State to prove that you were: Driving or in actual physical control of a motor vehicle on the roadways of the state of Florida; and that you were under the influence of alcohol or drugs; and your normal faculties (defined as the ability to walk, talk, judge distances, act in emergencies, or carry out the normal activities of every day life) were impaired.
 
The State can meet its burden of proving the offense of DUI in one of two ways. First, you may have submitted to an approved test of your blood alcohol level either through having blood drawn or submitting to an intoxilyzer (breath) test.  If the State can be establish that your blood alcohol level was above the legal limit (.08 percent) at the time that your were operating or in actual physical control of a vehicle, the State will have met its burden that you were operating a vehicle with an unlawful blood alcohol level (UBAL).  Although your blood alcohol level as measured by blood or breath may be above the legal limit (.08 percent), the admissibility of this test result or its significance may be challenged in court.  In some circumstances, the reliability of the State's evidence of blood alcohol may be suppressed.  In such cases, at the trial of your DUI, the jury would not be made aware of any test results showing your blood alcohol level. Other evidence collected from you at the scene may include observations made by the officer of your demeanor, physical condition, condition of your eyes, the odor of alcohol about you,  your ability to walk or stand, your reliance upon other objects for support, and/or your performance on standardized field sobriety tests.  In most jurisdictions, your submission to or refusal to submit to a breath test may be video taped at the breath testing facility or county jail.  A copy of the video tape of your performance must be produced by the State. Second, should the State be unable to, or elect not to, proceed under the theory of unlawful blood alcohol level (UBAL) discussed above, the State may also prove the case of DUI against you by proving that, notwithstanding the absence of evidence of blood alcohol level, that you operated a motor vehicle while under the influence of alcohol to the extent that your normal faculties were impaired.  At trial, under this impairment theory, the State may elect to produce evidence as to your physical condition, your demeanor at the roadside, performance on standardized field sobriety tests, and/or statements which you made at the time of your stop and arrest.

Challenges to the State's evidence of your impairment may take the form of pretrial motions.  Before deciding whether to enter a plea or proceed to trial, your attorney can review the State's case, including witness statements, charging affidavits, audio and video tapes, and physical evidence, in an effort to determine whether any of your constitutional rights have been violated in collecting evidence against you.  Your attorney may then ask the Court to consider whether evidence collected against you in violation of your rights should be suppressed or kept from the jury hearing your case.

In some instances, should evidence crucial to the State's case against you be suppressed, your case may be dismissed by the Court or dropped by the prosecutor.  Short of that, pretrial motions may decrease the strength of the State's case and improve your likelihood of winning at trial or reaching a favorable negotiated plea.

Florida Statute requires that, upon conviction for a first DUI, the Court shall impose the following minimum sentence: Adjudication of guilt (conviction); One year supervised probation; $250.00 fine plus court costs; 50 hours of community service; Attendance and completion of the DUI Counter-Attack School; Attendance and completion of the Victim Awareness Program; Six (6) months to one (1) year driver's license revocation; and Impoundment of your vehicle.

DUI is one of several enhancable offenses under the laws of the state of Florida.  This means that a second or subsequent conviction of DUI, the Court must impose other mandatory minimum sentences including jail sentences, multiple year driver's license revocations, increased fines, and attendance and completion of advanced DUI schools and alcohol counseling. Despite the minimum mandatory sentencing requirements, the judge in your particular case is free to impose greater punishments based upon aggravating circumstances including, but not limited to, presence of a child in the vehicle, commission of any additional traffic violations at the time of the charge of DUI, damage to property, injury to persons, lack of cooperation with law enforcement, and/or elevated blood alcohol levels. In place of proceeding to trial, many DUI charges are resolved through plea negotiations.  In cases where the State may have difficulty obtaining a conviction of the offense of DUI, the State may agree to amend your charge of DUI to that of Willful and Wanton Reckless Driving.  Under the charge of Reckless Driving, there are no minimum mandatory sentencing requirements. Prior to going to court on your DUI, it is of the utmost importance that you discuss the resolution of your DUI charge with a qualified attorney with experience in the handling of alcohol related driving cases.

by John T. Floyd

in Law / Criminal Law (submitted 2010-04-02)

Florida v. Powell and Maryland v. Shatzer: Why Criminal Suspects Should Never Talk to the Police Without an Attorney

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

In December 2008 police officer Timothy Abernethy was chasing a suspect through a Houston apartment complex when the suspect, M. J. Landor, reportedly fired several shots at the officer. According to official reports, one of the bullets knock the 11-year police veteran to the ground at which time Landor approached him and shot him in the head. A massive police manhunt was undertaken to apprehend Landor, a parole violator, who was captured several hours later. Landor reportedly gave the police a detailed confession to the crime during several hours of police questioning.

Landor's capital murder trial got underway recently with the Harris County District Attorney's Office seeking the death penalty. Laine Lindsey, Landor's attorney, filed a motion to suppress the videotaped confession his client gave to the police. Evidence presented at the hearing, and reported in the Houston Chronicle, revealed that the police questioned Landor for approximately four hours before they actually began to videotape the suspect's statement. Landor told the court he falsely confessed to shooting Abernethy because he was afraid the police were going to kill him. Assistant District Attorney Maria McAnulty dismissed Landor's testimony as being untruthful, telling the court the videotape clearly shows the suspect was advised of right to remain silent.

Lindsey pressed the court to suppress the confession because the police, three of whom were in the interrogation room and a larger group standing outside the room, questioned Landor for more than four hours before turning on the recorder and videotaping just 20 minutes of the interrogation. During the 20-minute taped session, Landor said the shooting of Abernethy was a "freak accident;" that he fell while being chased by the officer and the gun went off at which time he kept shooting. McAnulty called several police officers who testified about what Landor reportedly told them when the interrogation session was not being taped; specifically, that Landor admitted he walked over and shot Abernethy in the head as he lay wounded on the ground.

Given the discrepancies between what Landor told the police during the 20-minute videotaped session and what he reportedly told the police during the four-hour non-taped session, Lindsey had every reason to press for the suppression of the all statements made by his client. Not unexpectedly, however, State District Judge Michael McSpadden denied the defense attorney's suppression motion.

The Chronicle report pointed out that McAnulty informed the court that Landor could be heard on the videotape waiving his right to remain silent. The Chronicle report did not indicate whether Landor had been advised of his right to counsel. We will assume he was so advised since the police advised him of his right to remain silent. But that assumption is made with the observation that the right to silence must be accompanied by three additional rights: 2) anything a suspect says can be used against him in a court of law; 3) that he has a right to the presence of an attorney; and 4) that if he cannot afford an attorney, one will be appointed to him prior to any questioning if he so desires. These rights attach to a suspect prior to questioning once he is placed in a custodial setting under Miranda v. Arizona. 1/ These prophylactic measures were put in place by the U.S. Supreme Court to ensure that criminal suspects are not compelled to give evidence against themselves in violation of the Fifth Amendment to the United States Constitution-an amendment made applicable to the States through the Fourteenth Amendment. 2/

The Supreme Court in Miranda pointed out that there are "inherently compelling pressures" in a custodial interrogation like the one Landor was subjected to. The Court added that the "unfamiliar" and "police-dominated atmosphere" associated with such custodial interrogations invariably triggers psychological pressures (such as four hours of intense grueling by three officers as in Landor's case) "which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," 3/

Miranda has been one of the most controversial decisions ever rendered by the Supreme Court. Law enforcement hate it, prosecutors have consistently tried to overrule it, and the High Court itself has in recent years taken every legal opportunity to undermine it. That is precisely what the Court did this session in two cases: Florida v. Powell and Maryland v. Shatzer. 4/ Both of these cases involve situations where the State's highest courts found a Miranda violation and the Supreme Court elected to overturn those decisions. Significantly, the opinions of the Supreme Court were delivered by its most conservative and liberal justices: Justice Scalia in the Shatzer case and Justice Ginsburg in the Powell case.

Of the two cases, Powell is the most damaging to the Landor's claim of a Miranda violation. Kevin Dwayne Powell was arrested in Tampa, Florida in August 2004 in connection with a robbery investigation. The suspect was taken to the local police headquarters where he was read the standard Miranda rights form: right to silence and right to "talk to a lawyer before answering any of our questions." Powell signed the waiver form and agreed to talk to the officers. He thereafter told the officers the handgun found in his girlfriend's apartment was his, and as a convicted felon, he knew it was a crime to possess it. He was charged and subsequently convicted of illegal possession of a firearm by a convicted felon. 5/

The trial court denied Powell's attempt to have the statements made to the police suppressed under Miranda. Relying upon a line of Miranda-related decisions, its own decisions, and the Florida Constitution, the Florida Supreme Court overruled the trial court and reversed Powell's conviction. 6/ The Florida high court based its reversal on the fact that a suspect has a right to be "clearly informed" of his to an attorney's presence "during questioning." 7/ The Court concluded the advice given to Powell about his right to an attorney had been misleading and added "a right that has never been expressed cannot be reiterated." 8/

The State appealed to the U.S. Supreme Court and the court granted certiorari review. 9/ Powell argued the High Court lacked jurisdiction in the case because the Florida Supreme Court had relied not only upon Miranda but had also upon the Florida Constitution to find a Miranda violation. The Court brushed aside this argument, saying the Florida Supreme Court had not made it "clear" that Miranda was only being used "for the purpose of guidance" or that its decision was grounded in the Florida Constitution. 10/ The Court added that while the Florida Supreme Court is free to attach additional Miranda-like protections under the Florida Constitution, it must do so "clearly and expressly." 11/

The Supreme Court then turned its attention to the third Miranda warning protection: the right to consult and have an attorney present during an interrogation. The Court pointed out it had never adopted a "precise formulation" or the exact words necessary to convey this right to suspects. 12/ The Court then concluded the advice the Tampa police had given to Powell was sufficient to reasonably convey to the suspect that he had a "right to have an attorney present, not only at the onset of the interrogation, but at all times." 13/

The Shatzer case involved a situation where an inmate, Michael Blaine Shatzer, was serving time in a Maryland penal facility for a sex offense. In August 2003 the Hagerstown Police Department received information that Shatzer had sexually molested his three-year-old son prior to his incarceration. A police detective visited Shatzer at the prison to question him about the allegation concerning his son. After being apprised of his Miranda rights, Shatzer refused to talk to the detective without an attorney being present. The police closed the case. Three years later additional information was developed linking Shatzer to the sexual abuse of his son. Another detective was sent to the prison to question him about the case. This time after being read his Miranda rights Shatzer signed a waiver and agreed to speak with the detective. After about thirty minutes of questioning, Shatzer implicated himself in sexual impropriety with his son. A second interview was conducted with Shatzer during which he further incriminated himself by telling the police he didn't force his son into the sexual impropriety. Shatzer was charged and convicted of sexual child abuse of his son. 14/

The U.S. Supreme Court nearly three decades ago held in Edwards v. Arizona that absent a "break in custody," the Miranda rights remain intact throughout the custodial interrogation process. 15/ Shatzer moved to suppress his 2006 statements under Edwards, arguing that his return to the general prison population did not constitute a break in the custodial interrogation process. The Maryland Court of Appeals agreed, saying "the passage of time alone is insufficient to [end] the protections afforded by Edwards," and that Shatzer's release back into general population between the 2003 and 2006 interrogations did not constitute a break in custody within any of the Edwards exceptions. 16/

The State of Maryland appealed to the Supreme Court, prompting the Court to decide exactly what constitutes a "break in custody" within the purview of Edwards. 17/ The Court confronted the issue with the following questions: "If Shatzer's return to the general prison population qualified as a break in custody ... there is no doubt that it lasted long enough (2 ½ years) to meet that durational [Edwards] requirement. But what about a break that has lasted only one year? Or only one week? It is impractical to leave the answer to that question for clarification in future case-by-case adjudication; law enforcement officers need to know, with certainty and beforehand, when renewed interrogation is lawful." 18/

The Court then set a 14-day period as the precise "break in custody" requirement within the Edwards custodial interrogation framework. In effect, a suspect held in actual custody on a criminal charge who invokes his right to silence and counsel is protected for 14 days. Any statements the suspect gives to the police after that 14-day period is not protected by the four Miranda rights should he elect to give the police a confession. 19/

The Landor case exemplifies the problems so frequently faced by defense attorneys retained or appointed after a defendant has been interrogated by the police. Landor was intensely question by at least three detectives for four hours during which time, accordingly to the police, he made incriminating statements that he walked over and shot Abernethy in the head as he lay wounded and helpless on the ground. However, in the 20-minute videotaped session Landor can be seen answering questions in a halting manner, crying, and telling the detectives the shooting was a "freak accident." The inevitable question glares at any defense attorney: why would a suspect tell the police he shot the officer in cold blood as he lay on the ground during an un-taped four-hour interrogation session and then tell them it was a "freak accident" during a 20-minute videotaped interrogation session?

Because of the restrictive implications of the recent Powell decision, this question may never be factually resolved in the Landor case. Given the assumption that Landor was advised of his right to have an attorney present during the interrogation process, Powell would allow for the admission of any statements the defendant subsequently gave to the police-taped or not.

The Landor, Powell and Shatzer cases all illustrate why criminal suspects should never talk to the police in any investigative setting, either custodial or otherwise, without an attorney being present. There are no "explaining" things to the police. The whole purpose of a law enforcement investigation is to secure incriminating evidence against someone-and when the police find it necessary to speak to anyone for any purpose, they are trying to discover incriminating evidence. The police control these interviews, and they do so in a manner designed to intimidate and prompt a suspect to incriminate himself. It may not be easier but it is certainly safer to keep your mouth shut than to try to explain things to the cops.

About the Author

John T. Floyd is one of Houston's top criminal defense lawyers with an unblemished reputation for providing faithful and dedicated representation to his clients. He has committed his entire professional career, as a criminal defense attorney, to providing the best possible criminal defense representation to clients not only in Houston but throughout the State of Texas and in federal courts nationwide.

Should you fail to complete the requirements of your probation or commit a new law violation while on probation, your probation officer may file with the Court a violation of probation report. Such a report may result in the judge issuing a warrant for violation of probation (VOP). A violation of probation acts as a new crime for which you can be arrested and held without bond.

Should circumstances arise following your sentencing which create a hardship or impossibility to complete the sentence, you may ask the court to modify your sentence, so long as this request is made to the court in writing within sixty days of entry of the sentence.

The crime of theft as defined by Florida Statutes is the taking or attempting to take the property of another with the intent to deprive the owner of the value of the property.  Since the definition of theft also includes the attempt to commit the theft, you may be charged with theft even though you were interrupted prior to the completion of the theft or you changed your mind before completing the theft.

Criminal Penalties
If the value of the item(s) taken is less than $150.00, the theft is a second degree misdemeanor punishable by up to six months probation, sixty days in jail, or a $500.00 fine. If the value of the property taken or attempted to be taken is between $150.00 and $300.00, the offense is a misdemeanor of the first degree punishable by up to one year in jail, one year probation, or a $1,000.00 fine. Theft of items valued at less than $300.00 is considered Petit Theft. Petit Theft is one of the several enumerated crimes under Florida Law which is enhancable. That is, upon successive convictions for petit theft, one can be charged with a third degree felony based upon the prior convictions. A third degree felony is punishable by up to five years in prison, five years of probation, or a $5,000.00 fine. If the value of the property taken or attempted to be taken is greater than $300.00, but less than $20,000.00, the charge would also be a third degree felony punishable as outlined above. Should the value of the items taken exceed $20,000.00, the charge would be a second degree felony punishable by up to fifteen years in prison, fifteen years probation, or a $15,000.00 fine.

Civil Penalties
In addition to the criminal charge, retailers and merchants will generally make a demand for civil restitution in a letter shortly after the arrest. This letter is generally a form which indicates that the recipient has been charged with the offense of retail theft and that pursuant to Florida Statute, he/she is obligated to pay $200.00 or three times the value of the property taken whichever is greater. In most cases upon being arrested for retail theft, the items attempted to be taken are recovered and the store is not damaged in any way. Nevertheless, many stores have learned that they may make additional money from people charged with theft by making this demand for payment. Even though the statute does permit the store the sue you for committing a civil theft, it is more likely than not that this letter constitutes nothing more than an idle threat and will not be followed by a civil suit.

The police often will stop drivers for violations of the law which are not as serious as criminal traffic offenses, but which may result in the driver being assessed points, paying fines and costs, being required to attend driving school and/or suspending driving privileges. Receipt of 12 points within 12 months or 18 points within 18 months will result in a lengthy license suspension. Examples of non-criminal traffic offenses include, but are not limited to, Unlawful Speed, Failure to Maintain a Single lane, Violation of Right of Way, Careless Driving, Expired Tag and Driving While License Suspended or Revoked Without Knowledge. Failure to correctly address these non criminal offenses may lead to increased insurance rates, loss of CDL and even a driver’s license suspension and if not resolved in a timely matter may result in criminal charges. Every driver charged with a traffic infraction may elect to attend school or pay the ticket with the points assessed, but is also entitled to a hearing if requested in writing within 30 days of the offense. At the hearing, the police officer who issued the citation and any other drivers involved must appear for the citation to be proven. The hiring of an attorney will increase the likelihood of prevailing at the hearing or minimizing the damage done to your driving record.