How to Survive Your Criminal Case in Florida (part 7 of a 9 part series)

By: Carlton “Duke” Fagan, Esq. 701 Market Street Suite 115 St. Augustine, Florida, 32095 (480) 767-0400, telephone rjcfirm@gmail.com www.DukeFagan.com Most of us who have been driving for a while have had the distasteful experience of receiving a traffic citation. Hopefully, you learned from that experience, developed safe driving habits, and never received another one. But should it happen again, this article is written to inform you of your options. First, you must respond to the citation within 30 days of receiving it. Failure to do so could result in your arrest. Most traffic citations are civil infractions, as opposed to criminal infractions. You cannot be jailed for a civil infraction; however, should you fail to respond to the traffic citation within 30 days, it will be automatically set for a court hearing. If you fail to show up in court, the judge may, and usually will, hold you in contempt of court for failure to appear. Contempt of court for failure to appear is a criminal infraction for which you may be jailed. The standard procedure when someone fails to appear for their court date is for the court to issue a “capias” (an order for the sheriff to arrest you and hold you in jail until another court date is scheduled for you to appear). This will result in the sheriff showing up at your door, your work, your family’s home, or wherever else you may be found, arresting you, and taking you to jail. You will stay in jail until you bond out or until your next court date (usually several weeks in the future). DO NOT FAIL TO TIMELY RESPOND TO A TRAFFIC CITATION! So what are your options for a response? Your first option for a response is to contact a lawyer. You can call our office at (480) 767-0400. Whether or not your citation requires a court appearance, a knowledgeable and experienced lawyer can best advise you as to how to handle your citation based upon your driving record and the circumstances under which you were issued the citation. A lawyer can represent you in court either at a trial to contest your guilt for the infraction or to try and mitigate the penalty you may ultimately receive. A knowledgeable and experienced lawyer may also find a way to get your citation dismissed. This is the best of all possible results, as no record of the incident will appear on your driving history in Florida. Most of the time, a lawyer can obtain a “withhold of adjudication of guilt,” which means that no penalty points will be assessed against your driving record. If your lawyer obtains a “withhold” for you, you will still have to pay the fine (your lawyer might be able to get the fine reduced), and you will have to pay a fee to your lawyer. If Duke Fagan represents you, you will not have to go to court, and, in the great majority of cases, you will not have to attend Traffic School. If you decide to handle your traffic citation without a lawyer, you have three options. Option One: If the citation does not require a court appearance (see the three checkboxes located on the lower left corner, just above the signature line for the driver, on the bottom of a Uniform Florida Traffic Citation), you can pay the fine by following the instructions that came with the citation. As long as the money reaches the Clerk of Court in the county where the citation was issued within 30 days of the day you received the citation and in the form (usually a cashier’s check or money order) required by the Clerk of Court, you will have fulfilled your legal obligations for that particular citation. While this seems like the easiest thing to do, it has consequences that can be very severe, depending on your driving history. Timely payment of a traffic citation without a court appearance results in your automatic adjudication of guilt for the citation. This will automatically add penalty points to your driving record. Points have two bad consequences. Bad Consequence Number One: If you accumulate enough of them within a set period of time, for example, 12 points within 12 months, your driver license will be suspended for at least 30 days. IT IS A CRIME IN FLORIDA, WHICH SUBJECTS YOU TO IMMEDIATE ARREST, TO DRIVE WHILE YOUR LICENSE IS SUSPENDED. Bad Consequence Number Two: Your auto insurance company will most likely increase your rates if you receive points on your driving record. Insurance companies are private entities that make their own decisions as to rates, but your driving history is a major factor in those decisions. Generally speaking, points against your driver's license equal a rate increase. Option two for a response if the citation does not require a mandatory court appearance is to elect to attend traffic school. You must make this election timely. Failure to do so will result in the same consequences for you as failure to respond. Instructions to make the election to attend traffic school are usually bundled with the citation. If you cannot find the instructions, or if you are not sure how to make the election, you should call the Clerk of Court for the county in which the citizenship was issued to find out how to elect to attend traffic school. If you elect to attend traffic school, you must make the election timely, attend and complete traffic school timely, make sure your Certificate of Completion reaches the Clerk of Court timely, and pay the fine on time. Yes, you still have to pay the fine if you elect to attend traffic school. Successfully completing traffic school in a timely manner, along with paying the fine in a timely manner, will result in no penalty points being placed on your driving record. Thus, you will avoid Bad Consequence Number One and Bad Consequence Number Two (see above). However, in Florida, you can only elect to attend Traffic School once every 12 months, up to a maximum of five times in a lifetime. Option Three for a response is to timely contact the Clerk of Court in the county where the citation was issued and request a court date. At the hearing, you will be representing yourself. If you do so, you must appear on the date assigned. Failure to do so will most likely result in a capias being issued for your arrest for “failure to appear.”. If your traffic citation requires a court appearance, you must contact the clerk of court in the county where the citation was issued and set a court date within 30 days of the date the citation was issued. You may still choose to represent yourself, but it is strongly recommended that you call a lawyer. You can call our office to discuss your citation over the phone at no charge. My office is knowledgeable and experienced in all types of traffic citations in Florida. If you receive a traffic citation, call us immediately. There will be no charge to talk to us on the phone about your traffic citation. Our telephone number is (480) 767-0400.

By: Carlton “Duke” Fagan, Esq. 101 Century 21 Drive Suite203 Jacksonville, Florida, 32216 (480) 767-0400, telephone rjcfirm@gmail.com www.DukeFagan.com The Bill of Rights The Preamble to the Bill of Rights The Congress of the United States began and was held in the City of New York on Wednesday, March 4, at one thousand seven hundred and eighty-nine. The conventions of a number of the states, at the time of their adoption of the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added. And as extending the ground of public confidence in the government will best ensure the beneficent ends of its institution,. RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz. ARTICLES, in addition to, and amendment of the Constitution of the United States of America, proposed by Congress and ratified by the legislatures of several states, pursuant to the fifth article of the original Constitution. Note: The first ten amendments were ratified on December 15, 1791, and form what is known as the “Bill of Rights.” Amendment I Congress shall make no law respecting the establishment of religion, prohibiting the free exercise thereof, abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances. Amendment II A well-regulated militia, being necessary to the security of a free state, shall not infringe on the right of the people to keep and bear arms. Amendment III No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrant shall be issued but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States than according to the rules of the common law. Amendment VIII Excessive bail shall not be required, nor shall excessive fines be imposed, nor shall cruel and unusual punishments be inflicted. Amendment IX The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Amendment X The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States, respectively, or to the people.

By: Carlton “Duke” Fagan, Esq. 101 Century 21 Drive Suite203 Jacksonville, Florida, 32216 (480) 767-0400, telephone rjcfirm@gmail.com www.DukeFagan.com About Choosing a Lawyer When you are facing criminal charges, it is you against the State of Florida. The State of Florida has tremendous power and almost unlimited resources, which it can and will bring to bear to convict you. Under our Constitution, the state may take your liberty and your property after convicting you of a crime. Upon conviction of first-degree murder, the state may take your life. Your lawyer and your precious constitutional rights, which were bought and paid for by the blood of your ancestors, are all that stand between you and the loss of your freedom, your property, and perhaps even your life. When choosing a lawyer, choose someone in whom you have confidence, someone you want to be standing beside you in a fight, someone you would trust with your freedom. We suggest you talk face-to-face with the lawyer you are considering to represent you. Mr. Fagan offers jail visit consultations for a small fee that will count towards your total fee should you decide to retain him to represent you. Have a friend or family member call our office at (480) 767-0400 to arrange a jail visit consultation. How to Retain Us to Represent You The quickest way to retain us to represent you is for you to have a friend or family member call us. You can also write to us. Our telephone number and address are at the bottom of this page. We respond to all letters from inmates. We welcome inquiries from persons who are facing criminal charges and from their family members. Courtesy Case Law Service If you are interested in reading a particular case and know the case name and citation, we will provide it to you free of charge upon your written request, as long as you do not already have an attorney. We will mail you one copy of any Florida District Court of Appeal, Florida Supreme Court, United States Supreme Court case, Florida statute, or federal criminal statute. Your written request must include your jail or DOC identification number, your full name, your complete mailing address, and the following statement over your signature: “I hereby swear or affirm that I have not retained an attorney for my case.” If you already have an attorney for your case, please contact him or her to request a copy of any case law or statute. Please note that we do not interfere with previously established attorney-client relationships. Your request must also include the case name and case citation, as we cannot engage in legal research for you free of charge.

By: Carlton “Duke” Fagan, Esq. 101 Century 21 Drive Suite203 Jacksonville, Florida 32216 (480) 767-0400 – Telephone rjcfirm@gmail.com www.DukeFagan.com Pre-Trial Hearings After arraignment, pre-trial hearings and motion hearings are the next court events in your case. In Florida, the Rules of Criminal Procedure allow the court to set pre-trial hearings as necessary so as to be updated on the progress of the case, set hearing dates for motions that have been filed by your lawyer or by the state, and finally, set a date for jury selection and trial. The number of pre-trial hearings in your case will depend on the nature of your case and the progress of the discovery process.” Discovery and Investigation of Your Case Florida law is unique from almost all other states in that it provides for a process of formal “discovery” between the state and the defendant. Formal discovery is the exchange of information about the case between the state and the defendant that is provided for in the Florida Rules of Criminal Procedure. Participation in formal discovery does not waive lawyer/client privilege or the Fifth Amendment rights of a defendant. One of the benefits of formal discovery is that it gives the defendant the right to take depositions in a felony case. A deposition is a formal proceeding where a lawyer brings in a witness, usually by subpoena, to sit down in front of a court reporter and answer questions under oath. A skilled lawyer can gain valuable information from deposition testimony that may help his client. It is very important that your lawyer be skilled in planning, preparing for, and taking depositions. Absent some very exceptional circumstances, he will only get one opportunity to depose each witness. The formal discovery process also provides your lawyer with an opportunity to obtain documents and test results and to inspect, photograph, and test tangible objects such as clothing, weapons, and other personal items. Effective use of formal discovery is critical to the outcome of your case. Informal discovery is the investigation of the case that is performed by the defense lawyer on behalf of the defendant outside of the methods provided for by the Florida Rules of Criminal Procedure. This investigation is of the utmost importance to your defense because, in most cases, your lawyer cannot obtain all the information he needs to defend you from the formal discovery process alone. In fact, it is so important that the United States Supreme Court, in a case named Strickland v. Washington, held that “in other words, counsel has a duty to make reasonable investigations or a reasonable decision that makes particular investigations unnecessary.”  In our experience, we often find key pieces of evidence as a result of our own investigation. The success of your defense often depends on the results of your lawyer’s investigation; accordingly, it is vital that your lawyer be creative and skilled in this area of practice. Be sure to ask your lawyer to copy you on all information he receives through the formal discovery process, as this information is already known to the state. You may want to save for face-to-face discussion only the results your lawyer obtains from his own investigation.

By: Carlton “Duke” Fagan, Esq. 101 Century 21 Drive Suite203 Jacksonville, Florida, 32216 (480) 767-0400, telephone rjcfirm@gmail.com www.DukeFagan.com “But they didn't read me my rights!”  When someone says this, they are usually referring to what is known as their “Miranda Rights." These rights came from the United States Supreme Court case, Miranda v. Arizona. Because of television, most people have a pretty good idea of what their Miranda rights are. Here is the way the Supreme Court stated them in Miranda: At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. Accordingly, we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice. In order to fully apprise a person interrogated of the extent of his rights under this system, it is necessary to warn him not only that he has the right to consult with an attorney but also that if he is indigent, a lawyer will be appointed to represent him. The reading of these rights by the police does not have to be word-for-word, as they are written above. Any recitation of them that is substantially similar and clearly informs the person in custody of these rights will do. Again, due to television, most people mistakenly believe that the police must read them their rights if they are arrested. This is not true. There is no requirement for the police to read a person's rights when they are taken into custody. However, if the police fail to read the Miranda Rights to someone who is in custody and fail to obtain a waiver of those rights, then any statement by the arrestee is not admissible against the arrestee in court. Remember, Miranda only applies when someone is in the custody of law enforcement. Any statement made by someone who is not in custody is admissible against them in court. The moral of the story is: Do not talk to the police without your lawyer present. If you are questioned by the police, you should politely tell them that you want to talk to your lawyer. No matter what they offer to do for you or threaten to do to you, politely (even if they are not polite to you), tell them only your name, address, date of birth, and that you want to talk to a lawyer. Say nothing else. This is your constitutional right. Never feel awkward about asserting it. Would you feel awkward about asserting your right to vote, to go to church wherever you choose, to speak freely, to vote, to own property, or to own a gun? Your right to remain silent is just as important and precious a constitutional right as any of these. Do not hesitate to insist on it. Our forefathers demanded it, and the patriots who came before us purchased our rights with their lives. Never give them up.

By: Carlton “Duke” Fagan, Esq. 101 Century 21 Drive Suite203 Jacksonville, Florida, 32216 (480) 767-0400, telephone rjcfirm@gmail.com www.DukeFagan.com Arraignment If the state attorney decides to charge you with a crime, your case will be set on the court’s calendar for “arrest." Arraignment is a formal proceeding where your charges, as filed by the state attorney, will be read to you in open court and a copy of the information or indictment will be provided to your attorney. At arraignment, you will be required to enter a plea to the charges. There are 3 pleas that may be entered in Florida: “Not Guilty," “Nolo Contendere” (Latin for “No Contest”), and "Guilty." YOU SHOULD CONSULT WITH AND CAREFULLY CONSIDER THE ADVICE OF YOUR LAWYER BEFORE ENTERING A PLEA. If you enter a plea of “Nolo Contendere” or "Guilty," you will be sentenced, or your case will be set for a sentencing hearing. After sentencing, you will begin to serve your sentence, which could be fines, court costs, time served, some form of probation or prison, or a combination of these penalties. If you enter a plea of “not guilty," your case will be set for a “pre-Trial Hearing” on the court’s calendar. After your arraignment, you should ask your lawyer to send you a copy of the information or indictment, along with copies of any other documents, such as motions or initial discovery, that were provided by the state at arraignment. In most cases, your next appearance in court will be at a pre-trial hearing, which is usually scheduled from 1 to 4 weeks after your arraignment. Your constitutional rights The first ten amendments to the United States Constitution contain many of the rights that directly affect you in a criminal case. These first ten amendments, known as the Bill of Rights, were so important that after the Constitution was drafted and sent to each of the 13 states for ratification, the founding fathers and leaders in those states refused to ratify it until these protections for citizens were added. The Fourth, Fifth, and Sixth Amendments provide specific protections for criminal defendants, such as the right to be free from warrantless searches and seizures, the right against self-incrimination (the right to remain silent), and the right to trial by jury. The Sixth Amendment specifically provides for the right to counsel. If you cannot afford a lawyer, the Office of the Public Defender will be appointed to represent you. If you believe your constitutional rights have been violated, tell your lawyer what happened to you and ask him what can be done about it. About the Public Defender The Sixth Amendment of the United States Constitution and Article 1, Section 16 of the Declaration of Rights of the Florida Constitution guarantee that someone who is accused of a crime in Florida has the right to counsel. A case that originated in Florida, Gideon v. Wainwright, extended that right to all criminal defendants regardless of their financial circumstances. To meet this mandate to provide lawyers to criminal defendants who could not afford to hire a lawyer, the Office of the Public Defender was created. There is a public defender’s office for each one of Florida’s 17 judicial circuits. We are very fortunate to have outstanding and excellent lawyers in the offices of the Public Defender in Florida. Some of Florida’s finest attorneys are public defenders. Unfortunately, Florida’s public defenders are grossly underfunded for the number of cases they are required to handle. These dedicated lawyers do the best they can, but they have very high case loads, so they must stretch very limited resources over a large number of cases. In fact, some of the public defenders in Florida have so many cases that they have had to ask the courts to stop appointing them to misdemeanor cases. This is a very unfortunate situation that is the result of underfunding by the legislature. It is not the fault of the public defender.  If you have a public defender, try to remember that he is doing the best he can with a very large caseload and a very limited budget.

By: Carlton “Duke” Fagan, Esq. 101 Century 21 Drive Suite 203 Jacksonville, Florida, 32216 (480) 767-0400, telephone rjcfirm@gmail.com www.DukeFagan.com The Charging Decision No matter what you may have heard or been told, even by the police, they cannot charge you with a crime. They have the power to arrest you on probable cause for committing a crime, but only a state attorney or a grand jury has the power to charge you with a crime. In a few cases, a defendant has been formally charged with a crime by the State Attorney or a Grand Jury prior to being arrested, but in the great majority of cases, no formal charges have been filed before a defendant has been arrested. Generally, during the first two weeks after your arrest, the state attorney will be reviewing your case file to decide which crime or crimes to charge you with. This is a very important time period in your case, as this decision by the state attorney will determine the seriousness of the crimes and the number of crimes you must defend yourself against in court. The state attorney has total and absolute power in this decision. He does not have to charge you with the crime or crimes for which there was probable cause to arrest you! He can decide to charge you with those crimes, with a more serious crime, with a less serious crime, or not to charge you at all. Your lawyer should make every effort to investigate your case early and present evidence to the state attorney to persuade him to charge you with lesser crimes or not to charge you at all. A favorable charging decision has a very significant impact on your case, as the lower the number of crimes you are charged with and the less severe the crimes you are charged with, the lower the potential penalties you face. Sometimes a favorable charging decision results in your case being dropped! Accordingly, the time between your arrest and a final charging decision is a critical phase of your case. Ask your lawyer if the facts and circumstances of your case present an opportunity for him to influence the charging decision in your case, and if so, what is his plan for persuading the state attorney to make a charging decision more favorable to you? Unless you are charged with a crime by the filing of "information” by the state attorney or by an “indictment” from a grand jury, you must be released from jail within 21 days of your arrest. This time period can be extended up to 40 days upon a showing of good cause to the court by the state attorney. Unfortunately, you will not be automatically released from jail upon the passing of 21 days if you have not been charged by information or an indictment. Your lawyer must file and successfully argue a motion for discharge before the court to gain your release. If you have been in jail for more than 21 days and you still have not been charged with an informational or criminal offense, call your lawyer to find out your status. If you have been formally charged, ask your lawyer to send you a copy of the information or indictment that was filed against you.

By: Carlton “Duke” Fagan, Esq. 101 Century 21 Drive Suite 203 Jacksonville, Florida, 32216 (480) 767-0400, telephone rjcfirm@gmail.com www.DukeFagan.com  Bond and Bail Bondsmen The primary purpose of a bail bond is to ensure that an arrested defendant will show up for his court appearances. Without the presence of the defendant, his case cannot proceed to a conclusion. A secondary purpose of bail bonds is to place certain restrictions on the defendant to assure the safety of the community. A reasonable bond is guaranteed to all arrested persons by the 8th and 14th Amendments to the United States Constitution and by Section 14 of the Declaration of Rights in the Florida Constitution. What is “reasonable” is open to wide judicial discretion. The state attorney will usually request the highest bond he thinks the judge will set. Judges tend to be very cautious and conservative when setting bonds. This is especially true in the Fourth Judicial Circuit (Duval, Clay, and Nassau counties), where we have some of the highest bonds in the state of Florida. Your lawyer is the only person who will be able to advocate on your behalf for a lower bond. When and where is the bond set? If you are arrested on a warrant, the judge who signed the warrant sets your bond and writes it on the face of the warrant. If you were arrested without a warrant, your bond will be set at First Appearance, a proceeding that will take place within 24 hours of your arrest. See the previous section on First Appearance above. Your first appearance is your first opportunity to get out of jail. It is very important that you have a lawyer at First Appearance to argue for the lowest possible bond. You have only a few hours after your arrest to contact a lawyer in time for him to make his first appearance to represent you. We regularly represent defendants at first appearance. Call a family member or friend and ask them to call us immediately at (480) 767-0400 to make arrangements to have us at First Appearance to represent you. Our telephones are answered 24 hours a day, seven days a week. If you presently have a bond that is too high for you to make, your lawyer can file and argue this motion, as it will be your last opportunity (absent new grounds) to lower your bond. If you are facing a bond that is beyond your financial ability to make, ask your lawyer what can be done to lower it. Once your bail amount is set, there are two ways to post it. A family member or friend can go down to the jail and give the Releasing Department the full amount in cash (exact amount only) plus a small service fee (usually $3.00). At the conclusion of the case, the full amount of the bond will be returned to the person who posted it. The other way to post a bond is to use a bail bondsman. How do bail bondsmen work? A bail bondsman will place the full amount of your bail for you for a fee of 10% of the bond amount. This fee is kept by the bondsman as payment for his services and is not refundable. For example, if your bail is $20,(480) 767-0400, the bail bondsmen will charge a fee of $2,(480) 767-0400 to place your bail and have you released from jail. Some bail bondsmen will work out payment terms for their 10% fee. Unlike what you may have seen on television, bail bondmen are not “bounty hunters." They are insurance agents. Bail bondsmen have contractual agreements with large insurance companies that guarantee the bond amount to the court. The bondsman pays a portion of his fee to the insurance company that guarantees your bond. “Skipping bond” by failing to make your court appearances is a serious offense. If you fail to appear, the court will issue a capias (warrant) for your immediate arrest. Additionally, the insurance company has “recovery agents” who search for and detain customers who fail to make court appearances.