Frequently Asked Questions
FAQS About the Court Process
Question 1. Are depositions conducted in every case?
Answer: No. In misdemeanor cases the judge has to grant permission for depositions to be taken of witnesses.
Question 2. Do I have to be present at Arraignment or Pre-trial?
Answer: No. Normally a written plea of not guilty is filed at arraignment not requiring your presence. A waiver of appearance can be filed for pre-trial conference. Contact our office to find out more information.
Question 3. What is discovery?
Answer: All evidence that the State plans to use, including testimony of witnesses.
Question 4. Can I be present at the depositions?
Answer: No. A defendant is not allowed to be present unless the parties stipulate or the court has ordered the physical presence of the defendant on a showing for good cause.
Question 5. What are depositions?
Answer: Depositions provide the Defense or the State, the opportunity to ask questions of potential witnesses.
F.A.Q. – Drug Offenses
Question 1. I was arrested for drug possession and I was not in a vehicle, is my license still subject to being suspended?
Answer: Yes. If you are adjudicated guilty the DMV will suspend your license for up to 2 years, whether a vehicle is involved or not.
Question 2. I was never read my Miranda warning will my case be dismissed?
Answer: No. An officer is required to read Miranda warnings at the time you are detained or arrested. If the officer asks questions that elicit incriminating statements and did not read your Miranda warning then the statement would be suppressed and the State would be prohibited from using the statement against you. If there is no other evidence then the case may be dismissed. There are certain questions that do not require Miranda warnings.
There are two types of Traffic Tickets:
|Criminal:A criminal citation requires a mandatory court appearance and a conviction could result in a jail sentence. Some examples are: DUI, DWLS/R, or reckless driving.||Civil Infraction:A civil infraction usually does not require a court appearance and there is no possibility of jail upon conviction. Some civil infractions do require a mandatory appearance.|
CIVIL INFRACTIONS REQUIRING A MANDATORY APPEARANCE INCLUDE:
- Failure to stop for a school bus.
- Having unsecured cargo which causes serious bodily injury to another.
- Any traffic infraction which results in serious bodily injury or death as the result of a crash.
- Speeding over 30 mph over speed limit.
TRAFFIC TICKET OPTIONS
If you pay the citation you are admitting guilt and points will be assessed on your license.
(See point schedule)
|UNLAWFUL SPEED 15 MPH OR LESS OVER LAWFUL OR POSTED SPEED||3 POINTS|
|UNLAWFUL SPEED 16 MPH OR MORE OVER LAWFUL OR POSTED SPEED||4 POINTS|
|LEAVING SCENE OF AN ACCIDENT WITH PROPERTY DAMAGE MORE THAN $50||6 POINTS|
|UNLAWFUL SPEED RESULTING IN AN ACCIDENT||6 POINTS|
|RECKLESS DRIVING||4 POINTS|
|ANY MOVING VIOLATION RESULTING IN AN ACCIDENT||4 POINTS|
|ALL OTHER MOVING VIOLATIONS
|OPEN CONTAINER AS AN OPERATOR||3 POINTS|
Unpaid tickets can result in license suspension. In Florida driving while your license is suspended or revoked can result in criminal charges. Driving on a suspended or revoked license is an escalating offense. A third DWLS/R can be charged as a third degree felony punishable up to 5 years prison or .
If you received a traffic citation you have three options:
1. Pay the citation within 30 days.
2. Attend Traffic School.
3. Plead not guilty to contest the citation.
PAYING THE CITATION
Paying the citation results in points being assessed on your driving record.
If you received:
12 points within 12 months the DMV can suspend your license for up to 30 days.
18 points within 18 months suspension can be up to 90 days.
24 points within 36 months suspension can be up to 1 year.
If an individual accumulates 15 convictions for moving traffic offenses for which points may be assessed within a five year period the DMV will deem that person to be a habitual traffic offender (HTO) and suspend their driving privilege for five years. Anyone caught driving while designated HTO commits a third degree felony which is punishable up to five years in prison.
You must provide proof of completion within 60 days.Driving School may not be the best option for you because: 1. You can only attend elective traffic school five times in a 10 year period; 2. You can only attend traffic school once within a twelve month period. 3. Some states may not accept traffic school as a means to withholding points. 4. CDL drivers can not elect traffic school as a mean to withholding points. 5. Mandatory court appearance.Traffic School Benefits
1. Class available at home or online.
2. No points.
3. Protecting Insurance rates.For your convenience we have provided a link our home page to the American Safety
Council’s website for traffic school that is an approved school by the Department of Highway Safety and Motor Vehicles.
ENTER A PLEA OF NOT GUILTY AND CONTEST THE TICKET
You may enter a plea of not guilty and contest the ticket yourself or retain an attorney. Give us a call. We provide FREE consultations. We know how important your license and driving record are to you. Let us discuss your options and defenses. The best decision you can make is an informed one.
YOUR BENEFITS WHEN YOU RETAIN US
1. No office visit required.
2. No Court appearance.
3. Experienced legal help.
4. Protecting your insurance rates.
Driver’s License Suspension
A license suspension can be a devastating experience. Your driver’s license can be suspended for several reasons including failure to pay traffic tickets, excessive points on your license, failure to display proof of insurance, unpaid child support and others.
Florida Juvenile Cases
Adolescents are prone to make a variety of mistakes. Unfortunately, these mistakes may be illegal in nature, which can lead to severe legal punishments. Regardless of their age, a criminal record can negatively impact a minor’s future employment and educational opportunities.
Juvenile crimes are illegal activities that are committed by people who are below the legal age of 18. Criminal activity among adolescents is continually on the rise. In an effort to limit juvenile crime, law enforcement has become stricter on juvenile crime. Common Florida Juvenile Crimes include, but are not limited to:
- Driving under the influence (DUI)
- Underage drinking
- Traffic Violations (speeding and reckless driving)
- Drug crimes (possession, selling, or distribution of narcotics)
- Violent crimes (such as battery)
- Property crimes such as theft, vandalism
Juvenile Crime Consequences
When a parent is contacted by law enforcement because their child is being charged with a juvenile crime, their whole world is turned upside down. Often parents are unsure what to do and they may not always know how to act in their child’s best interest. Juveniles that are charged with crimes face legal consequences which can include:
- Monetary fines
- Time in juvenile correctional facilities
- Community service
- Terms of probation
- Removal from their parents’ home
While legal consequences for adults are for punishment purposes, juvenile crime consequences are geared toward the treatment and rehabilitation of the minor.
Just like adults, minors have individual rights and they can protect and defend themselves against their criminal charges. Juveniles have the right to remain silent when questioned by law enforcement, the right to cross examine witnesses who are testifying against them, and the right to an attorney.
If your child is being charged with a juvenile crime, the best thing you can do for them is retain an experienced criminal defense attorney. By retaining the services of a skilled Florida attorney, you are ensuring that your child will receive the legal representation, advice, and information they need to defend themselves against their charges.
FIRST APPEARANCE – WHAT TO EXPECT
The purpose of a first appearance hearing is for a judge to tell you why you were taken into custody. Typical reasons for being arrested are new charges, violation of home detention or probation, failure to appear for court, or a pick up order from another county or state. The judge will look at the paperwork to see if it is proper. If you have new charges, he will look at the police report to see if probable cause exists. Probable cause means that if someone believes the facts stated in the police report, they would believe a crime has been committed. The judge does not decide whether you are guilty or innocent at First Appearance. An assistant public defender will be automatically appointed for this hearing only. He or she will give you any advice that is necessary for the first appearance proceeding.
WILL I BE RELEASED?
The answer depends on your score on the risk assessment instrument. The Department of Juvenile Justice (DJJ) prepares a scoresheet. If you score 12 points or more, DJJ usually recommends 21 days in detention. Listed below are typical outcomes.
- If you failed to appear for court in Bay County, you will be given a new court date. You may be released or held for 21 days in secure detention.
- For a probation or home detention violation, you may receive 5 to 21 days in detention.
- If you received new charges and score 12 or more points, you will probably receive 21 days in secure detention. If you scored less than 12 points, you may receive 21 days on home detention. However, the judge has the right to add to your score based on your history and the seriousness of the charges.
- You may be held for up to 48 hours on a domestic violence charge, regardless of your score.
- If you are wanted in another county or state, you will probably be held until that state or county can pick you up, usually no more than 21 days without further hearing.
WHAT HAPPENS NEXT?
If you have new charges in Bay County, you AND your parent or guardian will receive a summons to come to court for your arraignment within two to four weeks.If your charges are from another county or state, the procedure may vary.
ADVICE TO PARENTS
Please answer all questions asked by the judge honestly, but be careful about volunteering too much information. You could hurt your child’s case.
Juveniles just like adults have the right to remain silent because anything you say can be held against you. Do not talk to anyone about the facts of your case except your attorney.
Juveniles just like adults have the right to defend themselves against criminal charges.
- Right to an attorney
- Right to call witnesses
- Right to cross examine witnesses
- Right to file motions
- Right to trial
A juvenile trial is different than a trial for adults. A juvenile trial is a non-jury trial where only the judge determines if the state has proven the case beyond a reasonable doubt. An adult or juvenile being tried as an adult is entitled to a trial by jury.
Juveniles are any unmarried person under the age of 18. A child under the age of 18 being treated as an adult and adult sanctions may be imposed if the child is over the age of 14. There are certain requirements for transferring a juvenile to adult court. Please contact our office.
Juveniles can face all the same offenses as adults.
Some offenses may apply only to juveniles, such as Possession of Alcohol or Tobacco by a Minor which are criminal offenses and the juvenile can face:
- A mandatory license suspension for a minimum of six months with a maximum of one year.
- Subsequent violation my result in a license suspension for up to two years.
Juvenile offenses are serious and may have a negative impact on a child’s future. The Adult system is structured under the Criminal Punishment Code where unfortunately treatment is not the focus. The Adult system focuses on punishment.
However, the Florida Juvenile System is more focused on treatment and rehabilitation.
Treatment programs are classified as follows:
- Minimum risk non-residential
- Low risk residential
- Moderate risk residential
- High risk residential
Maximum risk residential
So contact an attorney at Dowgul & Hatcher, so we may help you.
Arrest – If arrested Florida requires that you be brought before a judge within 24 hours for First Appearance.
First Appearance – is where the judge determines if there was probable cause for your arrest.
If the judge determines there was probable cause the judge will then set a bond.
The judge may:
- Release you on your own recognizance.
- Order Pre-trial Release: certain conditions are imposed and monitored by the Pre-trial Release Program while the case is pending. If you receive Pre-trial Release you must check in with the program office upon your release from jail. Failure to do so can result in a warrant being issued for your arrest. You would then be held without bond until your case is resolved. In Bay County the Pre-trial Release Program is located across the street from the courthouse.
- Monetary Bond: (a) Cash Bond – entire bond amount posted by individual that is returnable at completion of the case. (b) Surety Bond – contacting a bail bond agency who usually requires 10% of the bond amount to be paid to them (this amount is the bondsman’s fee and is not returned). The bondman’s may also require some form of collateral (ex. car title).
- A judge can hold an individual without bond in certain circumstances. (ex. serious crimes, violation of probation, arrest on new charges while out on bond, sex offender status).
Arraignment – After first appearance the court will set another court date. That court date is an arraignment date.
What happens at an arraignment? The state makes a determination if they plan to proceed forward with the charges. The State may: (a) Dismiss charges; (b) Increase the charges; (c) File more charges or (d) File reduced charges.
The State in circuit court is required to file a formal information informing the defendant of the facts constituting the charged offense(s). If the State chooses to file formal charges then a plea of guilty or not guilty is required. If a plea of guilty is entered then the case is over and a sentence is imposed. If a plea of not guilty is entered then the case will be continued to another court docket usually referred to as a Pre-trial Conference or Case Management docket. The Pre-trial or Case Management is basically a status check on the progress of the case. The Court determines where the State and Defense are in the discovery process. After discovery is complete the case will be set for trial.
A bench warrant or capias can be issued in various situations when the Court is trying to get someone to come to court. In some instances you may have missed a court date, and as a result a Judge will probably issue a bench warrant. Depending on the type of case, your ties to the area, and your criminal history, a bench warrant amount can vary from several hundred dollars to several thousand dollars. If you have a pending case and you missed court, it is crucial that you call our office and schedule an appointment to speak with us. In some instances we may be able to get the bench warrant set aside and get the case set back on the docket. There are other times when you may need to turn yourself in to answer to the charges. In addition, a Judge will often suspend your license for failing to show up in court (called a D-6). That will often lead to a law enforcement officer justifiably pulling you over. That will lead to the discovery of the outstanding warrant. Each situation is very different and individualized attention is necessary for your individual case.
There are times that you may be facing an arrest capias. An arrest capias occurs in two different situations. In the first scenario, a law enforcement officer fills out a probable cause affidavit or police report that is then forwarded to the State Attorney’s Office. The assistant State Attorney then files an “information” or charging document that alleges that you violated a Florida Statute. In the second scenario, the law enforcement officer goes directly to the Judge and gets an order directing that you be arrested. That order is then entered by the clerk’s office in the county in which you are alleged to have committed the crime. Once that information is entered into the Statewide criminal justice system, any state law enforcement officer can arrest you if they come into contact with you. Call us to see if we can help get your case on the docket.
Assault or Battery
Assault or Battery are two separate and distinct crimes.
Assault – is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent and is punishable up to 60 days in jail.
Aggravated Assault – involves an incident where an individual uses an object as a deadly weapon without intent to kill and is punishable up to 5 years in prison.
Battery – occurs when a person actually and intentionally touches or strikes another person against his or her will, or intentionally causes bodily harm to another person and is punishable up to 1 year in jail.
Felony Battery – is a battery that causes great bodily harm, permanent disability, or permanent disfigurement, and is a 3rd degree felony punishable up to 5 years in prison.
Aggravated Battery – is committed if:
- A person intentionally or knowingly causes great bodily harm, permanent disability or permanent disfigurement. Or
- Uses a deadly weapon. Or
- The alleged victim of battery is pregnant and the offender knew or should have known of the pregnancy.
Aggravated Battery is a 2nd degree felony punishable up to 15 years in prison.
In the State of Florida the State Attorney does not have to abide by the alleged victim’s wishes to dismiss a case. If the alleged victim does not want to prosecute the State may still try to proceed forward without a victim.
If an assault or battery is committed on the following classes of people the penalties are enhanced:
- Law enforcement officers
- Emergency Medical providers
- An individual over the age of 65.
- A pregnant woman.
- Disabled person.
If a firearm is used in the commission of an assault or battery there may be mandatory minimum prison sentences.
Florida is a 10/20/Life State.
- If a firearm is used in the commission of a crime there is a 10 year minimum mandatory sentence.
- If a firearm is discharged in the commission of a crime there is a 20 year minimum mandatory sentence.
- If a firearm is discharged and great bodily harm was inflicted a 25 year minimum mandatory up to a possible life in prison sentence.
Domestic Violence Injunction
Petitioner – is the one who seeks an injunction against another.
Respondent – is the one that the injunction is against.
If a judge has granted a petitioner’s request for an injunction. The injunction may be violated if:
- An individual refuses to vacate the dwelling that the parties share.
- Going to the petitioner’s residence, school, or place of employment.
- Committing an act of repeat violence.
- Threat by word or act to do violence to the petitioner.
- Telephoning or contacting petitioner by any means (email, letters) either directly or indirectly by a third party.
Stalking is when a person willfully, maliciously, and repeatedly follows, harasses or cyberstalks another person.
Stalking may be in the form of:
- Electronic Communication
- Or any other physical or verbal conduct that serves no legitimate purpose.
Stalking may be classified as aggravated and punishable as a 3rd degree felony, if:
- After a court ordered injunction is in effect a respondent stalks the petitioner.
- The alleged stalking was committed against a minor under 16 years of age.
- The alleged stalking threat places the person in reasonable fear of death or bodily injury.
The alleged stalking threat places the person in reasonable fear of death or bodily injury.
Marijuana, Cocaine, Methamphetamine, Ecstasy, and prescription pills are all substances that can lead to criminal charges. Drug offenses may be a felony or misdemeanor depending on the amount or type of drug. Whether you are charged with possessing it, attempting to possess it, possessing with intent to distribute, distribution, or trafficking determines the type of sanction you might be facing.
We handle all types of drug cases:
- Possession with Intent to Sell or Distribute
Possession of a controlled substance may be a misdemeanor or felony. In Florida, a controlled substance is any substance named or described in Schedule I, II, III, IV, or V of §893.03, Florida Statutes.
If you are adjudicated guilty there is a mandatory two (2) year driver’s license suspension.
1. Marijuana possession less than 20 grams is 1st degree misdemeanor, punishable by up to one (1) year in the county jail.
2. Possession of drug paraphernalia is also a 1st degree misdemeanor. Drug paraphernalia means all equipment, products, and materials, of any kind which are used, intended for use, or designated for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, transporting, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.
Some examples: scales, sifters, blenders, bowls, spoons, balloons, capsules, envelopes, containers, bags, syringes, needles, pipes, bongs and roach clips.
3. Possession of limited quantities of Schedule V substances. Examples: codeine, dihydrocodeine, ethylmorphine, diphenoxylate, opium.
Possession of controlled substances listed in Schedule I, II, III, IV. Some examples: Methamphetamine (Meth), cocaine, crack, heroin, LSD, hydrocodone, oxycodone, marijuana more than 20 grams, GHB, GBL.
Mere possession of certain substances may be classified as a 1st degree felony, punishable by up to thirty (30) years, a 2nd degree felony punishable up to fifteen (15) years, and a 3rd degree felony punishable up to five years.
In Florida, certain drug charges result in enhanced penalties based on the quantity of the drugs seized by law enforcement. The penalties and amount of drugs required to qualify for these enhanced penalties vary depending on the type of drug. Some of the most common drug trafficking examples in the Fourteenth Judicial Circuit are:
Trafficking in Controlled Substance
F.S. 893.135 (3)(f) Any person who possesses 14 grams or more of methamphetamine, amphetamine, or a mixture of pseudoephedrine or ephedrine in conjunction with other chemicals and equipment used to manufacture methamphetamine commits a felony of the first degree punishable as described below
F.S. 893.135 (1)(b)
F.S. 893.135 (1)(a)
F.S. 893.135 (1)(c)
F.S. 893.135 (1)(c)
F.S. 893.135 (1)(h)
F.S. 893.135 (1)(k)
F.S. 893.135 (1)(I)
Florida doesn’t play around when it comes to the offense of drinking and driving. The punishment for a DUI is severe. As defined in Florida Statute 316.193, a DUI is operating a motor vehicle while impaired with any of the following: a blood alcohol level of .08 or higher, a chemical substance, or a controlled substance. The first DUI conviction carries stiff penalties; loss of license for one year, fines, community service hours and possible jail time. If you are convicted on a second DUI within five (5) years of the first conviction the penalties are more extreme including a mandatory 10 day jail sentence. If a third DUI occurs within ten (10) years of the two convictions there is a mandatory 30 day jail sentence along with other sanctions. A fourth DUI is a felony which is punishable up to five years in prison.
Every time you are arrested for a crime in the State of Florida, a negative mark appears on your criminal record. Even if you were not convicted after your arrest, your criminal record can be jeopardized. Having a criminal record can create problematic situations and limit your future opportunities. An arrest on your criminal record can make it difficult for you to:
- obtain job opportunities
- rent an apartment or home
- pursue a degree or professional certification
- receive bank loans
- receive student loans
These complications are life altering and can change the course of your future. Fortunately, there is a way in which you can “erase” arrests from your criminal record. You can remove arrests from your criminal record if your case was dismissed or the State of Florida drops your case.
What is Expungement?
The process of clearing an arrest from your criminal record is called expungement. When you expunge a criminal arrest from your record, you remove the arrest so that it is no longer a public record. This means that future employers and landlords cannot find out about your arrest through a background check. The mistakes you may have made in your past will stay there, allowing you to have a second chance and a limitless future. You may expunge misdemeanor, felony, and juvenile arrest records.
Basic Requirements for Expungement.
Once your case is closed, you can consider expunging your criminal record. Before you can petition for expungement in the state of Florida, you must meet four basic requirements.
1. You must not have had a record sealed or expunged before.
2. You must not be under any form of court supervision, such as probation.
3. You must not have received an adjudication of guilt.
4. You must not have been convicted of a misdemeanor or felony.
If you meet these basic requirements, you may be eligible for the expungement of your criminal record. Expungement is a relatively quick process. After you petition for expungement, it usually takes about 4-6 months for your arrest to be erased from your record if the State of Florida grants your request.
If you are considering expungement, it may be beneficial to speak with an experienced Florida attorney. We will evaluate your case to determine if you meet the basic requirements for expungement, help you with complicated paperwork, and ensure that your expungement petition is completed successfully.
Felony / Misdemeanor
Felony and Misdemeanor legal Cases
Crimes in Florida are generally classified into two classes, Felony and Misdemeanor. A felony offense is any crime which can result in incarceration for more than 365 days. Felony offenses are further divided into categories called degrees.
|Capital Felony||Maximum penalty is death.|
|Life Felony||Maximum penalty life in prison(in Florida a life sentence means just that.A defendant spends their entire life in prison.)|
|1st Degree Felony||Maximum penalty up to 30 years in prison|
|2nd Degree Felony||Maximum penalty up to 15 yeas in prison|
|3rd Degree Felony||Maximum penalty up to 5 years in prison|
A person charged with a felony in Florida, at the time of sentencing will have a criminal scoresheet prepared by the prosecution which determines the sentencing range the Judge can impose for the charged offense. Those scoresheets calculate factors designated by the Legislature as relevant to sentencing. Each offense is given a numerical value, as are other factors, such as victim injury and the Defendant’s prior record. If a Defendant’s scoresheet points equal 44 or more then the Judge is required to impose a prison sentence, unless there is a “mitigated departure.” A person sentenced to prison in Florida, must complete 85% of the sentence prior to being released, unless the offense has a minimum mandatory provision. Some offenses are designated as “min/man” offenses. This means that a person convicted of one of these crimes will be required to serve at least the min/mandatory amount of time in prison. Such offenses involve firearm charges, drug trafficking, and certain sex offenses.
Question 2. I have felony convictions in another state do these offenses count against me when calculating my score sheet?