Criminal Law – Frequently Asked Questions

Looking for answers? This might be the place to find them. Take a look below and if you don’t see your question answered already, you can contact us directly.

What should I do if the police question me about a crime?

There are no hard, fast rules. However, here are some general rules of thumb:

Nobody wants to get arrested. Even if you are completely innocent, getting arrested often means time in jail and the expense of a lawyer and perhaps a bail bondsman. The natural tendency is to answer all of the police officers’ questions to avoid aggravating the police officers. However, this is a situation in which “following your instincts” can be the worst thing you can do! Talking or writing to the police without a lawyer present can be very dangerous.

Generally speaking, there are two sorts of crimes: (A) Crimes you have no connection with whatsoever; (B) Crimes which you or someone you know has some connection with.

    (A) Crimes which you have no connection with

Obviously, you are at greater risk of getting arrested and prosecuted for a crime that involves you or some person, place or thing you yourself have some connection with. By contrast, however, if you witness from afar someone you don’t know being robbed by someone else you don’t know, in a place you have no ownership or control of, with a weapon or thing you have no connection with, there would appear to be little risk of you yourself getting arrested. Indeed, many would say that such a situation creates a moral duty to report the crime to the police.

However, if a police officer goes beyond asking you a few questions about what you saw and instead begins interrogating you at length with a great many questions, you would be wise to end such questioning immediately and politely inform the officer that he or she is making you uncomfortable and you will not answer any further questions without your attorney present.

(B) Crimes which you or someone you know has some connection with

Under Florida law, a person who does something –however small– which helps another complete a crime can be just as guilty as he would be if he committed the full crime him or herself. Such an act of “helping” someone else commit a crime is known as being a “principal” to the crime. This law is spelled out in Florida Statutes Section 777.011. It is difficult to imagine a situation in which someone who commits a crime or who helps someone else commit a crime (even unintentionally) would benefit from talking to the police without a lawyer.

On the contrary, and as a general rule, someone who commits a crime or does something which somehow helps someone else commit a crime should not talk to the police without first talking to a lawyer of their own. A criminal lawyer can assist the innocent and the guilty alike in a variety of ways, including making sure they’re not unfairly “overcharged” or “made an example of.” A lawyer may be able to get the case dismissed (“dropped”) entirely. A lawyer has the power to negotiate a “plea bargain” (also known as getting you a “deal” or “ a break”), even if you’re guilty. If you are completely innocent, a lawyer can help prevent you from being wrongfully “framed” (convicted) for crimes you are innocent of.

However, if you talk or write to the police without a lawyer present, you make your lawyer’s job more difficult. A lawyer can legally require the State to go all the way through a trial and meet its burden of proving guilt beyond a reasonable doubt, regardless of guilt or innocence, and even without you yourself having to testify in court.

Suppose the robber in the above example happens to be someone you know, or the robbery occurred in your vehicle or on your property, or with a tool or weapon owned by you. Such things create a very real risk that the robber will try to spread some of the blame onto you –even if you are completely innocent– in an effort to get a “break” for him or herself. In such a situation, you would be wise to say no more to the police than to politely identify yourself and tell them that you choose not answer questions or otherwise discuss the matter until after you have talked to your lawyer.

What should I do if I’m arrested?

First and foremost: Try not to be rude or impolite to the police officers. Prosecuting attorneys (“State Attorneys”) do consider the officers’ feelings in deciding who gets prosecuted, who doesn’t get prosecuted and who gets a “break.” Irritating police officers makes things more difficult.

Secondly, you should respond to the police officer’s request for your name and identification. They are entitled to such information and will eventually get it anyway.

If you’re arrested, you will probably be searched for weapons and taken to jail (§ 901.21 and § 901.211, Fla. Stat.). If questioned, you will be advised of your rights under the United States Constitution. This is commonly referred to as “reading you your Miranda rights.” You’ve probably seen it on television. However, the moment you request an attorney, all questioning is supposed to stop.

When you choose not to answer the police officers’ questions, you must politely inform the officer or officers that you choose to stand on your right to remain silent and you want no further questions asked.

Other Legal Rights: You have additional, important constitutional rights. For example, no one can force you to answer questions or say things which might subject you to criminal prosecution.

You have the right to refuse to talk to the police or answer their questions without first having your attorney present beside you while you are being questioned (§ 901.24, Fla. Stat.).

You have a legal right to be informed of the crime or crimes you are being charged with.

You have the legal right to know the identity of the police officers who are dealing with you.

You have the legal right to communicate by telephone with your attorney, family, friends, or bail bondsman as soon as practicable after you are brought into the police station. However, the police have the right to finish “booking” you first.

Key points to remember if you’re arrested:

A. You have the constitutional right to have an attorney before and during police questioning.

B. If you do choose to talk to the police or answer their questions or sign their papers any information you provide or accidentally leave out will probably be pointed out to the jury and used against you in court.

C. Law enforcement officers are not supposed to use force or threats or offers of leniency (offers of a “break”) to induce you to talk or write. If you do choose to stand on your constitutional right to remain silent and not be questioned by the police, you must politely say to the police that you stand on your constitutional right to remain silent and that you choose to stop all police questioning. If you fail to say these things to the police, the law allows them to continue questioning you in hopes that you will eventually break down and start talking or writing. If you do find yourself under such repeated police pressure, just keep repeating that you stand on your right to remain silent and you want all questioning stopped.

What About Public Defenders?

There are many dedicated, caring and experienced public defenders in Florida. There are also many new and relatively inexperienced public defenders. You have no say in which public defender gets assigned to represent you. However, if hire your own lawyer, you decide who is going to represent you.

In the famous case of Gideon v. Wainwright, the United States Supreme Court ruled that the state governments must provide attorneys for criminal Defendants who are too poor to hire lawyers of their own.

Because people with lawyers generally do much better in court than people without lawyers, the Gideon v. Wainwright ruling has been very helpful to the poor.

However, Florida’s public defender system is set up to provide state-paid lawyers to “indigent” people, meaning people who truly lack the money needed to hire a lawyer of their own. Florida Statutes Section 27.52 is entitled “Determination of Indigent Status.” It requires those seeking a public defender to complete a detailed financial-information application. Among other things, Florida Statutes Section 27.52 states:

. . . An applicant, including an applicant who is a minor or an adult
tax-dependent person, is indigent if the applicant’s income is equal to or
below 200 percent of the then-current federal poverty guidelines prescribed
for the size of the household of the applicant by the United States
Department of Health and Human Services or if the person is receiving
Temporary Assistance for Needy Families-Cash Assistance, poverty-related
veterans’ benefits, or Supplemental Security Income (SSI).

. . . There is a presumption that the applicant is not indigent if the
applicant owns, or has equity in, any intangible or tangible personal
property or real property or the expectancy of an interest in any such
property having a net equity value of $2,500 or more, excluding the value
of the person’s homestead and one vehicle having a net value not exceeding
$5,000.

. . . Notwithstanding the information that the applicant provides, the clerk
may conduct a review of the property records for the county in which the
applicant resides and the motor vehicle title records of the state to
identify any property interests of the applicant under this paragraph. The
clerk may evaluate and consider the results of the review in making a
determination under this subsection. If the review is [fn1]conducted, the clerk
shall maintain the results of the review in a file with the application and
provide the file to the court if the applicant seeks review under
subsection (4) of the clerk’s determination of indigent status.

In other words, the notion that “you can always get a public defender” is not true for everyone.

If you do find yourself facing criminal charges without a lawyer, you can always ask the judge to appoint a public defender to represent you as you continue efforts to hire a lawyer of your own choosing.

Persons charged with crimes also need to be aware that public defenders tend to be very heavily burdened. In the Florida Supreme Court case of Public Defender, 11th Judicial Circuit v. State of Florida, 115 So.3d 261 (Florida Supreme Court, May 23, 2013) the Florida Supreme Court said the following:

“. . .we are struck by the breadth and depth of the evidence of how the excessive caseload has impacted the Public Defender’s representation of indigent defendants. For example, the number of criminal cases assigned to the Public Defender has increased
by 29% since 2004, while his trial budget was reduced by 12.6% through budget cuts and holdbacks over the fiscal years 2007-2008 and 2008-2009. . . . The non-capital felony caseload has been in the range of 400 cases per attorney for a number of years. Yet, even the highest case-load standard recommended by professional legal organizations is 200 to 300 less. At the time the motions were filed in these cases, there were 105 attorneys to represent clients in 45,055 new and reopened cases. . . Third-degree felony attorneys often have as many as fifty cases set for trial in one week because of the excessive caseload. Clients who are not in custody are essentially unrepresented for long periods between arraignment and trial. Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered at arraignment. Instead, the office engages in “triage” with the
clients who are in custody or who face the most serious charges getting
priority to the detriment of the other clients.

. . .this evidence is . . . a damning indictment of the poor quality of trial representation that is being afforded indigent defendants by the Public Defender in the Eleventh
Circuit. Additionally, the public defender’s lack of adequate resources or excessive caseload is likely to affect each client’s case differently in the pretrial context as the attorney “juggles” the cases against each other in “triage.”

This is not to say that public defenders are bad. On the contrary, there are many bright, experienced and dedicated individuals serving as public defenders. However, the simple truth is that many good public defenders are so heavily burdened that they are unable to do all that they would like to do for the individuals they represent.

What about simply pleading guilty to get out of jail now, without the expense of a lawyer?

A criminal conviction, even a misdemeanor criminal conviction, can seriously hurt you and limit your opportunities for the rest of your life.

A criminal conviction can seriously impair –or altogether end– your ability to get a job, to obtain a professional license, to become a U.S. Citizen, to gain acceptance into the armed forces or college. Florida Felony convictions cost you your right to vote, hold public office, or possess a firearm. Convictions for certain types of sex offenses can result in financially ruinous sex-offender probation, having to register as a Sex Offender, having to move to another location without children nearby, or even being locked up indefinitely in the prison-like Florida Civil Commitment Center. Felony convictions and certain types of misdemeanor convictions can be used against you in court to characterize you as a dishonest and untrustworthy person. This makes it difficult to win future court cases.

Depending on circumstances, a qualified criminal defense lawyer may be able to get you promptly released from jail and keep your record free of criminal convictions. Unfortunately, too many people “take the bait” and plead guilty in exchange for a quick release from jail only to learn later that they are now stuck with a criminal conviction that will “haunt” them and limit their opportunities for the rest of their lives. Hiring a qualified criminal defense lawyer may help you get out of jail quickly while protecting you from such terrible consequences.

How do people manage to hire lawyers?

Hiring a criminal defense lawyer is a bit like hiring a dentist or surgeon or an auto mechanic: People rarely anticipate or “plan” for such expenses. And yet, every day, people do manage to pay the money needed to hire a lawyer, just as people do manage to pay the money needed for dental work, surgery or car repairs. People charged with crimes commonly resort to savings, bank loans, credit cards, family, friends or even church for financial help in hiring a lawyer.

What do the words “felony,” “misdemeanor,” and “infraction” mean?

“Felonies” are the most serious “crimes.” Felonies are offenses punishable by more than one year in prison. “Misdemeanors” are also “crimes” but they are less serious crimes punishable by up to one year in jail rather than prison. While not as serious as “felonies,” misdemeanors are still “crimes” and certain misdemeanors can be used against you in future court cases to make you look like a liar. Therefore, depending on circumstances, a misdemeanor conviction could impair your ability to get a job or a promotion or a professional license or acceptance in college or win future court cases. “Infractions” are non-criminal violations of lesser laws, such as municipal parking regulations. While not as serious as “crimes,” infractions can cause significant legal difficulties, especially if you fail to respond and appear in court for them.

Many people are surprised to learn that some crimes which sound quite minor are actually felonies. For example, falsely applying for an I.D., fleeing a police car, unlawfully spraying a fire extinguisher and falsely reporting child abuse are all Florida felonies.

Is it possible to admit to a crime and yet not be “convicted” of it?

Yes. Believe it or not, there are situations in which this is true and legal in the state of Florida. There are a number of ways in which a Florida criminal case can be ended without a criminal “conviction.” However, your chances of obtaining such a non-conviction end to your own case are best if you are represented by a qualified criminal defense lawyer.

What about sealing or expunging a criminal record?

You may or may not be legally entitled to “seal” or “expunge” a Florida criminal record. It depends on the charge, as well as your prior criminal record. Furthermore, certain conditions and exceptions apply. For example, sealing your record only restricts access by the general public. Federal, state, county and city agencies may still access your criminal history record. Expunction of your record totally removes your criminal record, however agencies will be able to know that the criminal record has been removed, and can obtain the record through a court order. There are other exceptions where you may not deny or fail to acknowledge a sealed or expunged criminal incident. In addition, sealing or expunging your record in Florida may have no impact on private companies or federal databases. Your record may still be available through private companies that purchase such information from the state and counties. Employers and the general public may still have access to these records through the private companies or through various Internet sources. While an individual may lawfully deny or fail to acknowledge the sealed or expunged criminal information, there are exceptions to the rule.

How about bringing a “police brutality” lawsuit to stop the State from prosecuting me?

This question is usually asked by persons are guilty and who have unlawfully resisted arrest. Bringing a baseless “police brutality” lawsuit (also known as an “excessive force” lawsuit) is unethical and is a “losing” tactic which can only make things worse for you. When you are charged with a crime, your first step should be getting a qualified criminal defense lawyer to defend you against the criminal charges. Then, once your criminal defense lawyer is on board, you can always schedule another appointment with a police-misconduct lawyer.

Will you work on a “contingent fee” basis like those personal-injury attorneys who get paid only if they win?

No.  Such “contingent fee” arrangements are illegal in criminal cases.

What about the “former prosecutors” or “former state attorneys” who claim that they can do better for me because they are “friends” with the judge or the prosecutor?

Run, don’t walk, from any lawyer who makes any such suggestion of such “relationship” or “good old boy” influence over a judge or prosecutor. First of all, the Florida Rules of Professional Conduct –particularly Rules 4-3.3 and 4-3.5– forbid such claims. Other rules which apply specifically to prosecutors and judges require them to withdraw from cases in which their judgment might be affected by such pressure or relationships or connections. Lastly, be aware that Florida prosecutors and judges are overwhelmingly dedicated, law-abiding professionals who do not allow themselves to be affected by such improper influences.

On the other hand, there is nothing wrong with an attorney truthfully advertising that he or she has the experience of being a former prosecutor or a former judicial staff attorney or a former judicial law clerk. Indeed, the Florida rules regulating attorney advertisements embrace the notion that people should consider an attorney’s experience is deciding which lawyer to hire.

For years, the Florida Bar required lawyers to include the following disclosure statement in their print-media ads:

“The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.”

(Former Rule 4-7.3, Florida Rules of Professional Conduct; italics added for emphasis)

Although Florida attorneys are no longer required to include this statement in their ads, they may include it if they want to. Source: Handbook on Lawyer Advertising and Solicitation, The Florida Bar, Tenth Edition, March 20, 2014 Revision, p. 37, citing In re Amendments . . . 971 So.2d 763 (Florida Supreme Court, 2007)

Even today, in certain types of lawyer advertisements, lawyers are required to include the advertising lawyer or law firm’s background, training and experience in their ads. See, Rule 4-7.18(b)(2)(C), Florida Rules of Professional Conduct.

For all of these reasons, it is good that lawyers describe their experience in their ads. Legal experience is a very important consideration –perhaps the most important consideration– in hiring a lawyer.

I just pled guilty on another lawyer’s advice and fear that I made a terrible mistake. Is there anything that can be done?

It may be possible to correct the problem if the correct legal action is taken quickly. Days or even hours can make a huge difference here. If you find yourself in this situation, you should schedule an immediate, “emergency” attorney consultation to discuss the matter.

Isn’t it true that I can always appeal if I don’t like the results of my case?

Attorney Christopher J. Anderson has handled –and continues to handle– many appeals. These include special appeals known as post-conviction motions and habeas corpus motions and certiorari petitions. However, be aware that the overwhelming majority of appeals end with a decision which upholds the lower-court results and leaves you stuck with your conviction and sentence.

Lawyers actually have more power and opportunities to correct bad rulings in the first court proceedings than they do later on, during an appeal. In fact, failing to object to a bad ruling in the first court usually forfeits your right to correct it on appeal. For this reason, it is a mistake to think of appeals as remedies for bad lawyering. You need good, qualified legal representation from the very beginning. However, appeals are occasionally necessary and beneficial. Attorney Christopher J. Anderson is also an experienced appellate lawyer.