200 Butler St., Suite 207 West Palm Beach, FL 33407

FAQ – Felony and Misdemeanor

Felony Matters / Misdemeanor Matters

The simplest way to distinguish a felony from a misdemeanor is the level and degree of penalties that may be imposed.  A misdemeanor is an offense that may be punishable by up to one year in jail, while a felony offense may be punishable by several years in prison.  There are fines and court costs associated with both, commensurate with the level and degree of severity of the charge.

The effects of a felony conviction are permanent and for the most part irreversible.  The potential consequences of either a felony or misdemeanor charge can touch every facet of your life; personal, home, business, family and community.

A felony conviction may prevent you from qualifying for numerous state and federal employment opportunities or meeting the criteria for a lease or a loan; it may result in the loss of an academic scholarship or the ability to rent a home or apartment.  In the state of Florida, a felony conviction will result in the loss of your right to vote, hold public office, serve as a juror, own or possess a firearm or carry a concealed weapon.

Of course, beyond the loss of opportunity is the emotional and social cost.  Within the community and at the personal and family level, the consequences of a felony or misdemeanor conviction can be far reaching and, in some cases, difficult to recover from.

The need for a well thought out, well executed plan is obvious.  The need for legal representation with an eye towards how these matters can potentially impact all areas of your life is clear.  The need for someone to guide you, defend you and advocate for you without compromise is overwhelming.

Some of the Felony and Misdemeanor Matters We Have Defended

  • Battery
  • Felony Battery
  • Aggravated Battery with a Deadly Weapon
  • Battery on a Law Enforcement Officer
  • Battery on a Health Care Provider
  • Domestic Battery
  • Sexual Battery
  • Assault
  • Aggravated Assault with a Deadly Weapon
  • Petit Theft
  • Grand Theft
  • Robbery
  • Strong Arm Robbery
  • Robbery by Sudden Snatching
  • Trespass
  • Burglary
  • Burglary of a Dwelling, Burglary of a Occupied Dwelling, Burglary of a Structure, Burglary of a Conveyance
  • Criminal Mischief
  • Unlawful Sexual Conduct with a Minor Over the Age of 12: Lewd and Lascivious Conduct
  • Possession of Marijuana under 20 Grams
  • Felony Possession of Marijuana
  • Possession of Drug Paraphernalia
  • Possession of Cocaine
  • Possession of Heroin
  • Unlawful Possession of Prescription Drugs, Xanax, Oxycontin, Oxycodone
  • Possession of Alcohol by a Minor
  • Driving Under the Influence
  • Driving Under the Influence Causing Serious Bodily Injury and / or Property Damage
  • Driving Without a License, Driving with a Suspended License
  • Racing on the Highway
  • Reckless Driving
  • Careless Driving
  • Leaving the Scene of an Accident
  • Organized Scheme to Defraud
  • Insurance Fraud
  • Child Abuse
  • Aggravated Child Abuse
  • Drug Trafficking
  • Possession with Intent to Sell and Distribute
  • Possession with Intent to Sell or Distribute Within 1000 feet of a Church or School

When someone is placed a person under arrest they are transported to a jail facility for booking and processing. In some instances, the person may be able to post the standard bond amount for the offense charged and be released. However, if the person is unable to post the required bond amount, or was arrested for a domestic violence charge, a violation of probation, or a “non-bondable” offense, under Florida law they will remain in jail and within 24 hours they will be brought before a judge or magistrate for a hearing called a First Appearance.

The purpose of the First Appearance is for a judge to advise the defendant of the charge(s); determine whether the police had probable cause to make the arrest and deprive a citizen of their civil rights; address the issue of counsel, and, if applicable, set conditions of pre-trial release from jail. At the hearing, the judge sets conditions of release to ensure the defendant’s presence at future court hearings and to protect the community. The conditions are based on the charges, the defendant’s ties to the community, prior criminal history, and other relevant facts. It may be important for the defendant to have his family, friends or employer speak on his behalf. The same issues are addressed before the Court at a Bond Hearing, the main difference being that the Bond Hearing is typically conducted before the judge that will have ultimate jurisdiction over the case.

Under Florida law a Notice to Appear acts the same as an arrest. The difference is the police officer on the scene makes a determination to release someone without booking them in; instead, the police officer requires the defendant sign for a court date within thirty days that compels a mandatory court appearance. If the defendant fails to appear the judge in turn will issue a Capias or bench warrant, which is returnable to that judge only. In some instances a defendant will not be arrested or receive a Notice to Appear, instead, they will receive or be served with a Summons which will compel a mandatory court appearance. Failure on the part of the defendant to appear may result in the judge issuing a Capias or bench warrant in that case as well.

There is no question that Public Defenders are excellent lawyers. There is also no question that Public Defenders operate under tremendous stress and have incredible case loads. Quite often there is very little, if any, time or opportunity for individual attention. Public Defender services are reserved for defendant’s who qualify for the appointment of the Public Defender because they have been declared indigent and are relying on the State to help them.

There is an old saying, “He who represents himself has a fool for a lawyer”. The interests of the State are represented by a lawyer through the Office of the State Attorney. You need a lawyer to advocate on your behalf and represent your interests as well. The prosecutor will not be advising you of the potential pitfalls and consequences that may exist in a resolution proposed by the State to work out your case. Moreover, the prosecutor will certainly not be assisting you should your case result in a trial. Additionally, the judge cannot help or advise you either.

Arraignment is a hearing at which the prosecutor announces whether the State is filing formal charges. If the State files charges, the judge explains to the defendant the nature of the charges and asks him or her to enter a formal plea; either guilty or not guilty. In some cases, the prosecutor may offer to divert the case from the criminal court process into a pre-trial diversion program. If the client pleads not guilty, the case is scheduled for trial.

A plea of No Contest is effectively a guilty plea that sounds better. A No Contest plea has the same effect as a guilty plea, it results in the defendant agreeing with the charge(s) and accepting the facts as alleged.

Battery; Felony Battery; Aggravated Battery with a Deadly Weapon; Battery on a Law Enforcement Officer; Battery on a Health Care Provider; Domestic Battery; Sexual Battery; Assault; Aggravated Assault with a Deadly Weapon; Petit Theft; Grand Theft; Robbery; Strong Arm Robbery; Robbery by Sudden Snatching; Trespass; Burglary; Burglary of a Dwelling, Burglary of a Occupied Dwelling, Burglary of a Structure, Burglary of a Conveyance; Criminal Mischief; Unlawful Sexual Conduct with a Minor Over the Age of 12: Lewd and Lascivious Conduct; Possession of Marijuana under 20 Grams; Felony Possession of Marijuana; Possession of Drug Paraphernalia; Possession of Cocaine; Possession of Heroin; Unlawful Possession of Prescription Drugs, Xanax, Oxycontin, Oxycodone; Possession of Alcohol by a Minor; Driving Under the Influence; Driving Under the Influence Causing Serious Bodily Injury and / or Property Damage; Driving Without a License, Driving with a Suspended License; Racing on the Highway; Reckless Driving; Careless Driving; Leaving the Scene of an Accident; Organized Scheme to Defraud; Insurance Fraud; Child Abuse; Aggravated Child Abuse; Drug Trafficking; Possession with Intent to Sell and Distribute; Possession with Intent to Sell or Distribute Within a 1000 feet of a Church or School.

The Office of the State Attorney has sole discretion to file formal criminal charges. The State may file charges even if witnesses or the alleged victim(s) do not want to testify against the defendant or do not wish to proceed with the case.

In felony prosecutions and for most misdemeanor cases the charging document most commonly used is called the Information. The Information is the formal complaint filed against a defendant in a criminal matter, much like the Complaint that is filed in a civil matter. The State is the “moving party”, they are bringing the action to court and therefore the State has the burden of proof.

Another method a person can be charged with a crime is by Indictment. An Indictment is a formal document issued by a Grand Jury. The Grand Jury is typically reserved for matters charging a felony punishable by death or life in prison. The Grand Jury can also be utilized in complex criminal investigations such as fraud and corruption cases.

The State has 30 days from the date of arrest to file the charging documents. If the charging document is not filed by the twenty-first day, and the defendant is in custody and has failed to make bail, the defendant can ask the judge either to release him on his promise to appear (own recognizance) or request to hold an Adversary Preliminary Hearing, which requires the State to produce evidence showing probable cause for the charges. If the defendant is not released and the prosecution has not filed a charging document by the 30th day, the court will order that the defendant be released on his own recognizance on the 33rd day, unless the State files charges by that date. The State can request to have the defendant remain incarcerated until the 40th day and the judge will grant the request if good cause is shown. No individual shall remain in custody for more that 40 days if no charging document has been filed. It should be noted that the Adversary Preliminary Hearing is seldom used or pursued locally.

Wrong! As stated previously, the State has sole discretion to file formal criminal charges. The State may file charges even if witnesses or the alleged victim(s) do not want to testify against the defendant or do not wish to proceed with the case. The State considers the alleged victim(s) and witnesses as simply witnesses, not parties. The only party that can decide to bring a case as well as choose to drop a case is the State.

The State has the Burden of Proof in a criminal case. Based on our laws, the accused is presumed innocent until proven guilty. The standard of proof in a criminal case is Beyond and to the Exclusion of All Reasonable Doubt. Under American law it is the highest standard of proof; much higher than that of a civil matter. Simply put, it is the most difficult and therefore the most serious because an individual’s freedom is potentially at stake.

Trial is frequently described as the “fact finding” phase of a case where the guilt or innocence of the accused is determined by a “fact finder”, either a judge or a jury. In this firm, the “fact finding” phase of a case begins the first day a new case is opened. From day one, every case is looked at and prepared as if it is going to Trial. The only true and successful way to approach these matters is to treat them as if they are going to Trial. The best resolutions are always achieved in these matters when Trial becomes the “fact determining” phase because we have worked to narrow the issues and the facts that the “fact finder” will ultimately weigh and consider.

In a jury trial the judge rules on the legal issues and the jury determines the factual issues. In a Bench trial the judge is the “finder of fact” and determines both the factual issues and the legal issues.

When a defendant enters a guilty plea he or she gives up a number of significant rights and, depending on the charge, agrees to a number of serious consequences. Among these rights are the right to trial, right to cross examine witnesses and confront his accuser, right to compel the attendance and testimony of witnesses and the right to remain silent.

In this firm, a guilty plea is the result of a negotiated settlement with the State that reflects the issues and facts that were investigated, discovered and litigated throughout the time the case has been pending and the course and scope of our representation. A plea is always negotiated with our client’s rights and his best interests as our primary focus.

Yes, depending on the charge, there exist some potential alternatives for individuals that have never been in trouble before. Typically, first offender and diversion programs have strict criteria and fall within the discretion of the State to offer the program.

In this firm we always explore the possibility of formal and when possible, “informal” diversion alternatives for our clients.

The short answer is maybe.

Sealing a criminal record involves making an individual’s criminal history inaccessible to the general public. However, city, county, state and federal government agencies, including the police and military, will have access to and be able to review your criminal history records whether or not those records are sealed.

Expunging a record involves the court ordered physical destruction of a criminal history record or a portion of that record. It is much more difficult than the popular perception to have a record expunged or sealed. There are a number of criteria and exceptions that may apply.

In our firm we approach every case with the understanding that our client’s are concerned about their record. We strive to leave our clients in the best position possible and with as many options available to them as possible when it comes to their record and criminal history.