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People's Law Guide

 

Broward Immigration Lawyer

Maggie Arias - Pozo Goldstein LLP
Website

08/09/11

As if being arrested and accused of a crime isn’t enough of an anxiety-producer, once you’re in the criminal justice arena as a “defendant,” you can often feel completely lost as to the procedures and on-goings of the criminal court system. The following paragraphs seek to inform the reader of the procedures that occur immediately following an arrest for a felony criminal offense.

Police may conduct a search of the person arrested and the area within the immediate control of the arrestee without a warrant. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)(police may search interior of automobile, including all open and closed containers inside vehicle, incident to a valid arrest). If there is no probable cause to the arrest, the subsequent search is also invalid.

The State of Florida affords any person who has been arrested and is still in custody (meaning, a person who has not yet paid or posted a bond/bail amount), a first appearance before a judge within 24 hours of his or her arrest. The first appearance proceeding may take place at the courthouse or at the jail. Fla.R.Crim.P. 3.130. What is first appearance before a judge? The purpose of first appearance is to formally advise the accused person of the charges alleged by the police and to provide the accused with a copy of the complaint or arrest affidavit. It also serves to allow an opportunity for the judge to review the arrest affidavit and make a determination as to whether there is probable cause to continue detaining the accused. First appearance also affords the accused an opportunity to appeal to the judge to set a bond or to request that the judge change the conditions of any pre-trial release. Finally, if a person who is detained does not have an attorney, and if the person qualifies under the rules and is determined to be indigent (financially challenged), he or she may be appointed an assistant public defender.

Most anyone who is arrested has but one concern: “please get me out of jail!” Luckily, the criminal justice system does have mechanisms to ensure that those who qualify, may be given a lower bond, a form of pre-trial release such as house arrest, or even straight pre-trial release such that the accused person would not have to pay any monetary bond. Because an accused is presumed to be innocent, both the U.S. and Florida Constitutions guarantee the right to pre-trial release on reasonable conditions. See Amend. VIII, U.S. Const.; Art. I. Sec.14, Fla. Const. The only exception is when a person is charged with a capital offense or an offense punishable by life imprisonment, and the proof of guilt is evidence or the presumption is great. Fla. R. Crim. P. 3.131(a) In Florida, both the statutes and the Rules of Procedure create a presumption in favor of nonmonetary release. Section 903., Fla. Stat.; Fla. R. Crim. P. 3.131.

The factors considered by the Court at first appearance in determining pre-trial release conditions are governed by Florida Rule of Criminal Procedure 3.131(b) (also see Norris v. State, 737 So.2d 1240 (Fla. 5th DCA 1999). As often happens in first appearance, it is impossible to present a coherent argument for reasonable bond or a convincing argument to support a form of pre-trial release in the “assembly-line atmosphere” of bond hearing. THIS IS WHERE IT IS IMPERATIVE TO HAVE COMPETENT LEGAL COUNSEL REPRESENTING AN INDIVIDUAL AT THE EARLIEST STAGES FOLLOWING A CRIMINAL ARREST. However, if for some reason, an attorney could not be hired at the time of first appearance, Rule 3.131(d) allows the trial judge assigned to the case, to hold a second hearing to modify or set conditions of release and to readdress bond issues, should this become necessary. The Court will consider the following factors in determining whether to adjust a bond, grant pre-trial release, or grant some other form of modified bond:

  1. The nature and circumstances of the offense charged and the possible penalty;
  2. The weight of the evidence;
  3. The defendant’s family ties;
  4. Length of residence in the community;
  5. Employment history;
  6. Financial resources;
  7. Mental condition;
  8. “past and present conduct,” including prior convictions, previous flight, or failure to appear in court;
  9. Probability of danger to the community;
  10. Source of funds used to post bail;
  11. Whether the defendant is already on release with another charge pending or on probation, parole or other form of release from a sentence; and
  12. “any other facts the court considers relevant.”

There are many attorneys in Miami-Dade county who can represent a number of clients for a number of criminal offenses. Here at Pozo Goldstein & Gomez, LLP., our competent team of criminal trial lawyers, made up of former County Court Judge Ada Pozo and former Public Defender Maggie Arias, provide professional, dependable, and impeccable legal representation. We strive to humanize our clients and provide our clients and their families with a voice. In a system known for its tendency to rush through procedures and discount the hardship and stigma associated with the accusation of a criminal offense, the law firm of Pozo Goldstein & Gomez, LLP. will provide you with the most zealous representation. You can count on us!

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