Frequently Asked Questions
Criminal Law
- What is a Misdemeaner?
- What is a Felony?
- How do I Post Bail?
- How do I receive a Bond Hearing?
- Can my criminal arrest record be sealed?
- What is Record Expungement?
- What is a Criminal Appeal?
What is a Misdemeaner?
A misdemeaner offense is a crime punishable by no more than one year in a local county jail or one year probation or a $1,000.00 fine. Misdemeanor offenses are handled by the county court and are usually considered less serious crimes than felony offenses.
Some examples of common misdemeanors are disorderly conduct, disorderly intoxication, battery, prostitution and petty theft.
While being convicted of a misdemeanor will not result in the loss of any of your civil rights, there is the possibility of jail. First offenders only occasionally go to jail for the commission of a misdemeanor. However, it is very common that first offenders will be formally adjudicated or convicted of the crime.
Many people who are facing misdemeanor offenses are the type of people who rarely get in trouble and for whom the thought of being arrested and having a criminal record is both embarrassing and disturbing. It is sometimes possible to have your arrest record wiped clean at a later date through either the sealing or expunging of your record. However, you must qualify for this later action and the manner in which your case is handled may affect your eligibility for future erasure of your record. You may wish to review the section on this page relating to sealing of your record or expunging of your record.
While you may feel that going before a County Judge on a misdemeanor will only result in a small fine or a slap on your wrist, you do need to keep in mind that a criminal record is a criminal record and there is a possibility that your life will be impacted by probation, community service or even jail time. As such, it is a wise move to discuss the matter with an experienced attorney.
What is a Felony?
A felony crime is one which is punishable by the possibility of imprisonment greater than one year or is punishable by death. Of course, the death penalty is reserved for only certain murder cases and so for most people a felony crime is one where the possibility of imprisonment in the Department of Corrections exists.
Some examples of common felonies are grand theft, burglary, robbery, kidnapping and drug offenses. If you are convicted of a felony, you lose many of your civil rights. You will not be eligible to vote and you will not be eligible to run for public office. There are many jobs that require licensing by the State of Florida and you may not be eligible for those licenses if you are a convicted felon. Even some jobs that do not require a license require certain bonding or insurance coverage before you can obtain the job. Some insurance companies may refuse to bond convicted felons and therefore, even though you are not barred by law from certain jobs, you may find it difficult or impossible to obtain the job because of insurance or other requirements.
Felony cases are the most complicated and serious under our law. It is extremely difficult for an untrained, inexperienced person to represent themselves in felony court. The government saves its most experienced and best prosecutors to handle felony cases and, if you act as your own lawyer, you will be going against these prosecutors in court.
How do I post bail?
If you or a relative are being held in a county facility after being arrested for a crime, you must find out if a bond has been set. In most counties a bond is pre-set depending upon the nature of the offense according to a schedule approved by local judges. The judges do have the power in individual cases to increase or decrease the scheduled bond amount.
Once you find out what the bond amount is you need to decide whether you have enough funds to pay the bond in full and even if you do have the funds whether you would choose to do so or would rather use a bondsman. If you post a cash bond, it will be necessary for you to bring the exact amount of the cash to the county facility. The county facility will give you a receipt which indicates the date you must return for court. The county facility will release you. Upon successful completion of the case you will receive the money back. You will not receive any interest on the money. You must understand that should you be convicted or plead guilty or no contest to the offense, the court has the authority to have part or all of the cash bond applied to any fines and court costs imposed by the judge. However, your return of the money is not dependent on whether you are found guilty or not guilty but is dependent on whether you return to court as scheduled and as required.
If you do not have sufficient funds or if you choose not to post a cash bond, then it may be helpful to contact a bail-bondsman. A bondsman is an independent business person who will post a bond to secure your release or the release of your relative from the county jail in return for a fee. The fee is usually 10% in state court cases. The bondsman may require additional collateral for the remainder of the bond. The bondsman will then secure your release and the bondsman will notify you of your court dates. You will be responsible to that bondsman to appear in court. Even if you are found not guilty, you will not have the bond premium refunded by the bondsman as the bondsman will keep that money as his or her fee for the service provided. Most bondsmen have 24-hour telephone numbers and are available to meet with you at any time. Please remember that bail-bondsmen are independent business people, and it is possible that by shopping around you may get more favorable terms.
How do I receive a Bond Hearing?
If you or a relative are in a county facility and cannot be released because your offense is a "no-bond" offense, it is necessary to have a judge determine whether a bond should be set and, if so, how much the bond should be. Unfortunately, this will result in a certain delay in which the arrested person will be confined. Depending upon the nature of the offense and whether it is for violation of probation or violation of community control, a bond hearing must be scheduled in front of the appropriate judge. For people who are arrested for the first time on either a felony or misdemeanor where the state has not yet formally brought charges, the appropriate judge is the county judge to rule on the bond issues. If, however, the person has been arrested for a felony offense and the state has filed formal charges prior to the county judges ruling on a bond matter, the appropriate court becomes the circuit court. If the person arrested is arrested for a violation of probation or community control then the matter should be scheduled in front of the judge who placed that person on probation or community control.
Setting a bond hearing is relatively complicated for people unfamiliar with court proceedings. It is many times difficult to obtain a public defender for that purpose and many people awaiting a public defender to set a bond hearing must wait longer than if they were to retain a private attorney. In order to schedule a bond hearing, it is necessary to coordinate with the clerk of the court, the judge, the judge's assistant, and the prosecution. You will find it helpful to obtain a competent attorney to guide you through the bond hearing process.
Can my criminal arrest record be sealed?
Under Florida law, an individual arrested in the State of Florida may be eligible to have their criminal arrest record sealed. You should also be advised that in certain situations the record can be directly expunged. Expunging a record involves the erasure of the records while sealing a record results in the records being sealed and out of view for a period of time. Please review the section on expunging your record to see if you're eligible for that procedure.
If however, you are not eligible for expungement directly, or, if you prefer to have your record only sealed, it will be necessary that you determine if you are qualified. You are only entitled to have your record sealed or expunged once in your lifetime. Therefore, under existing law, if you have ever had a sealed or expunged record in the past you are no longer eligible. Likewise, you must not have been convicted or adjudicated of the offense you are seeking to have sealed. Because the qualifications for sealing your record are quite complicated, it is very helpful to discuss the matter with an attorney first.
Having your record sealed may result in saving a substantial amount of embarrassment and possibly help you obtain a job. Also, under certain situations, you can truthfully deny the existence of your arrest even though the arrest did take place. Please keep in mind however, there are exceptions to your right to deny the existence of your arrest and you do not want to get in trouble by denying the arrest in a situation where the law does not provide for such relief.
What is Record Expungement?
In the State of Florida, if you are arrested, the law allows you under limited circumstances to have your record expunged. You may be entitled to have your record only sealed and therefore it is suggested you review to the section on sealing your record as well.
When your record in expunged it is literally erased. When it is sealed it is sealed and kept from public view. It is harder to get your record expunged than it is to be sealed and many people are not eligible to have their record expunged. Therefore, it is recommended that you discuss with an attorney whether you are eligible.
If you have ever had a record sealed or expunged in the past you are no longer eligible because you are only allowed under existing law to seal or expunge your record one time. If you have ever been convicted of a criminal offense or, if you have been convicted or adjudicated of the offense in question, you are not eligible.
You must petition the appropriate court to expunge your record. The judge has the authority or discretion to either grant or deny your request.
By expunging your record you may save substantial embarrassment in the future and it may even help you get a job. it is also possible in certain circumstances to truthfully deny that you were ever arrested even though the arrest did take place. But the right to deny the arrest is limited to certain situations and so it is always helpful to review those with an attorney prior to denying your arrest. As indicated above, it is intended for you to listen to the section on sealing your record as well as this section in order to determine which process is best for you. However, because the area is complicated, it is recommended that you discuss this matter with a competent attorney.
What is a Criminal Appeal?
Among the constitutional rights we all enjoy is the right to an appeal. An appeal is a review by a higher court to make sure that the judge handling your case did his or her job properly. If the Appellate Court believes that a mistake was made, the Appellate Court has the authority to correct the mistake by ordering a new trial or dismissal of the charges, or by taking whatever steps are necessary to ensure fair treatment in the trial court.
If your case is being heard in the County Court, the appeal will be to a Circuit Judge or panel of Circuit Judges in your community. If your case was originally heard in the Circuit Court, an appeal will be to a panel of three judges at the District Court of Appeals.
If you cannot afford to pay for the cost of the appeal, and you otherwise qualify under Florida law, the judge can order the government to pay the costs associated with the preparation of the appeal, including the appellate filing fee. If you wish to have an attorney represent you on the appeal, and you cannot afford an attorney and otherwise qualify under Florida law, you can have an appellate public defender appointed to represent you on the case. Of course, you have the right to choose your own private attorney to handle the appeal. That attorney can be the same attorney who handled your case in the trial court or you can hire a new attorney to handle the appeal.
It is the responsibility of your trial attorney, whether it is a public defender or a privately retained attorney, to file the appropriate paperwork to perfect the appeal. Therefore, should you desire to have an appeal it is very important that you contact your attorney as soon as possible to inform that attorney of your desire to appeal.
Many times the area of appellate law becomes very complex. It is suggested that if you had a trial attorney, you immediately contact your trial attorney to discuss the options for appeals. If you did not have an attorney representing you before the trial court, it will be helpful to contact an attorney to discuss criminal appeals without delay.
