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How to Start, Draft, and File a Petition for a Writ of Certiorari - Leppard Law
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How to Start, Draft, and File a Petition for a Writ of Certiorari
How to Start, Draft, and File a Petition for a Writ of Certiorari 1920 1080 Leppard Law - Top Rated Orlando DUI Lawyers & DUI Attorneys in Orlando

HOW TO BEGIN

If you want to appeal, you will have 30 days after the Hearing Officer’s final order is issued to file a certiorari petition. Fla. R. App. P. 9.100(c), 9.190(b)(3). This deadline is jurisdictional and heavily enforced.

The deadline applies even if the Department is late in giving you the final order or other documents you would need to complete the petition. In that case, you still need to file the petition within the 30-day deadline, even if only a barebones one, and you can ask for leave to amend the petition and appendix in the near future (which should be granted with little trouble).

Once you know you’re appealing, you need to gather the following:

The Hearing Officer’s final order.

The audio recording of the hearing. (Contact the Hearing Officer for the recording. If the hearing was held on multiple days, get the recordings for each day).

Any documents presented at the hearing. (Hopefully you already have these in the form of the Department’s discovery, along with any evidence you may have introduced for your client.)

If you can’t get everything for some reason, you may exclude it from the appendix if it isn’t relevant (except for the final order), as the appellate rules only require you to include what is necessary to resolve the issues presented. See Fla. R. App. P. 9.220. For example, we usually don’t include the client’s driving record because the Department doesn’t provide it to us and it’s irrelevant—but if it becomes relevant, then of course you should obtain and include it.

This next step is important: Get the hearing audio officially transcribed as soon as possible. The transcript is usually essential, and it can take as long as a couple weeks to be completed, and then you have to incorporate it into the petition—all before the 30-day deadline. For transcription, we generally use Marge Raeder Court Reporting at margeraedercourtreporting@gmail.com.

PREPARING THE APPENDIX

The appendix is required and governed by Florida Rule of Appellate Procedure 9.220. You will file the appendix with the certiorari petition. Do the following to create an appendix that complies with the rule:

Make an appendix cover, which includes a caption (court heading), an index of the appendix’s contents, and a certificate of service. This cover will be the beginning of the appendix itself.

Compile the Hearing Officer’s final order, the documents introduced at the hearing, the hearing transcript, and any other documents you choose to include into a single PDF. The documents must be arranged in accordance with how your index orders them. Also, make sure that every page is 11 x 8.5 inches, or the eFiling Portal won’t accept it.

Insert the appendix cover at the beginning of the PDF. Then have the pages numbered. Make sure that “the page numbers displayed by the PDF reader exactly match the pagination of the index,” as Rule 9.220(c)(2) puts it.

Note that you may choose to start drafting the petition before the appendix is completed (owing to the strict deadline), but you won’t be able to finalize the petition until the appendix is completed because your factual and procedural assertions must cite the appendix and be accurate.

WRITING THE PETITION

Petitions invoking the original jurisdiction of appellate courts (including certiorari petitions) are technically different from appeals and are governed by different rules. Florida Rules of Appellate Procedure 9.100(g) and (l) govern these petitions. Here are their requirements:

Both the main text and the footnotes of the petition must be in either Arial 14-point font or Bookman Old Style 14-point font.

The text (except for the headings) must be double-spaced.

The petition must include a caption (court heading) and describe 1) the basis for the court’s jurisdiction, 2) a statement of facts, 3) the nature of the relief sought, and 4) supporting argument and legal citations. While not technically required, you should also include a table of contents, a table of citations, and perhaps a summary of argument as in regular appellate briefs. See Fla. R. App. P. 9.210.

You now have to choose which court you’re filing the petition in (considering it will be reflected in the caption and jurisdictional statement). The petition can be heard by the circuit court in either the county wherein the client resides or the county where the hearing was held. § 322.2615(13), Fla. Stat. E.g., if the client was stopped and arrested in Lake County, the client lives in Polk County, and the hearing was held in Orange County, you must file in either Polk or Orange County.

Once you’ve written everything except for the table of contents and table of citations, you will need to place a certificate of compliance immediately after the certificate of service. Florida Rule of Appellate Procedure 9.100(l) requires this certificate, which must certify that the petition complies with the font requirements of the rule by being double-spaced and in Arial 14-point font or Bookman Old Style 14-point font. Once this certificate is included and you’re done revising the petition, you’re ready to finalize the table of contents and table of citations.

Here are some last things to note while writing the petition:

You are technically not making an appeal, but filing a petition to invoke the original jurisdiction of the court to issue a writ of certiorari.

The client was not the “defendant” at the hearing, but the “licensee” or the “driver” (choose one and stick with it).

Since this is a petition and not an appeal, your client and the Department are not the “appellant” and the “appellee”; instead, they are the “petitioner” and the “respondent.”

HOW TO FILE THE PETITION (WITH PICTURES)

These are the instructions for filing in Orange County, but it could differ in other counties.
In the eFiling portal, navigate to the E-Filing Map and click “Case Initiation,” select the county you’re filing in, and click on “File Now.”

You should now be on the “Case Information” tab with some drop-downs to fill out:

How to Do Writs - Step 1 Example

For Division, select “Circuit Civil”

For Case Type, select “Specialized Other”

For Sub Type, select “Certiorari”

Don’t select anything for Total Number of Defendants or Summons to be issued

For Proceeding Type of Case, select “Circuit Civil – Not Applicable”

For Complex Business Indicator, select “No”

For Remedies Sought, check “Non-monetary, declaratory or injunctive relief”

For Number of Causes of Action, Enter “1”

For Class Action, select “No”

For Related Cases Filed, usually select “No” (unless you’re trying to consolidate the petition with others)

For Jury Trial Demanded, select “No”

Now proceed to the Case Parties tab:

How to Do Writs - Step 2

When adding your client as a party, select “Plaintiff” for the Role and mark off both checkboxes for Primary Party and Filed On Behalf of, then enter the client’s information.

When adding the Department as a party, select “Defendant” for the Role and mark off only the checkbox for Primary Party, then enter the Department’s information: Department of Highway Safety and Motor Vehicles, 2900 Apalachee Parkway, A-432, Tallahassee, FL 32399.

Proceed to the “Documents” tab, and you’ll see that a civil cover sheet has been autogenerated for you. This is where you submit the petition and appendix (and other documents if applicable, such as a motion to consolidate or a motion for attorney’s fees and costs).

Proceed to the “ServiceList” tab. Serve the Department at Office of General Counsel, Department of Highway Safety and Motor Vehicles, 2900 Apalachee Parkway, A-432, Tallahassee, FL 32399, at OGCFiling@flhsmv.gov.

After that, you just have to pay the $400 filing fee, review your submissions, and file.

WHAT HAPPENS ONCE THE INITIAL PETITION IS FILED

Unlike with regular appeals, filing a petition will not automatically set a briefing schedule. Instead, you must wait until the court determines whether the petition presents a “preliminary basis for relief”; if it does, the court will then issue an order to show cause, directing the Department to file a response and allowing you to file a reply. See Fla. R. App. P. 9.100(h).

The court will generally require the response to be filed within 30 days of the order to show cause and the reply to be filed within 30 days after the response is filed. Note that the petition, response, and reply correspond with the initial brief, answer brief, and reply brief in regular appeals.

Finally, you should file a request for oral argument to get the full attention of the court. The deadline to file such a request is 15 days after the deadline to file the reply. Fla. R. App. P. 9.320(b).

Important: The request for oral argument must be filed as a separate document. Fla. R. App. P. 9.320. If you try to request oral argument in your petition or reply, the request may be disregarded as invalid.

Criminal Process Chart
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Criminal Process Chart (Free Download)
Criminal Process Chart (Free Download) 1920 1080 Leppard Law - Top Rated Orlando DUI Lawyers & DUI Attorneys in Orlando

Here are the various processes involved in a criminal case, including the steps, whether or not to move forward with a motion to suppress, as well as what to expect at your plea hearing and your trial. Want to download a free copy of the official Criminal Process Chart PDF from Leppard Law: Florida DUI Lawyers & Criminal Defense Attorneys PLLC? No problem — click here!

Table of Contents

• Steps in a Florida Criminal Case

• Should I Move Forward with a Motion to Suppress?

• The Motion to Suppress Hearing

• What To Expect at Your Plea Hearing

• Trial

Steps In A Florida Criminal Case

ARREST / NOTICE TO APPEAR

This marks the beginning of your criminal case. If an officer has probable cause to believe you have committed a crime, he can make an arrest and file the case with the Clerk of Court.

Sometimes an officer may give you a Notice to Appear in lieu of an arrest, which informs you that you are being charged with a crime and sets a court date.

Arraignment (Usually Waived)

At arraignment, your charges are formally read to you and you must enter a plea of guilty, not guilty, or no contest. We will usually waive arraignment and simply file a written plea of not guilty.

This means that your arraignment is cancelled and you don’t need to attend.

DISCOVERY

At the beginning of your case we will file a notice of appearance and demand for discovery (evidence known to the prosecutor), which the prosecutor is required by law to disclose. The prosecutor must also disclose any evidence that could help establish your innocence.

It can take up to several months to receive all the discovery from the prosecutor and often times extends over several pretrial conferences.

PRETRIAL CONFERENCES

Between the beginning of the case and its resolution are pretrial conferences, where your attorney, the prosecutor, and the judge will discuss your case status.

MOTIONS

As the case progresses, we will file motions to prepare your case and sometimes pressure the prosecutor to drop your case. A motion simply asks the judge to make a decision or take a certain action on your case.

Here are some examples of motions:

  • A motion to suppress will try to get evidence thrown out if it is the product of an illegal search, seizure, or confession.
  • A motion to dismiss tries to get the case dropped because you cannot be prosecuted: e.g., the prosecutor does not have enough evidence to prove you committed a crime, you were granted immunity, or double jeopardy applies.
  • A motion to compel asks the judge to order the prosecutor to turn over any outstanding discovery.

PLEA DEAL

There will always be ongoing negotiations for a plea deal that is acceptable to you, right up until trial begins. But if the prosecutor’s offer is unacceptable or you choose to fight your case, we will be prepared to go to trial on your behalf.

TRIAL

As an alternative to taking the plea deal, you also have the option of taking the case directly to trial where a prosecutor has to prove you are guilty.

PLEA DEAL

There will always be ongoing negotiations for a plea deal that is acceptable to you, right up until trial begins. But if the prosecutor’s offer is unacceptable or you choose to fight your case, we will be prepared to go to trial on your behalf.

OR…

TRIAL

As an alternative to taking the plea deal, you also have the option of taking the case directly to trial where a prosecutor has to prove you are guilty.

Should I Move forward with a Motion to Suppress?

RISKS & REWARDS TO CONSIDER

If the motion to suppress is granted, you can have your entire case dismissed or receive a better plea offer. Even if all of the prosecutor’s evidence isn’t thrown out, the prosecutor may offer a better plea deal after the motion is heard. But it cuts both ways: If the court denies the motion, the prosecutor could also revoke the plea offer or add more sanctions.

The Motion to Suppress Hearing

WHAT YOU NEED TO KNOW

The point of the motion to suppress is to throw out any evidence that was obtained as a result of a violation of your constitutional rights. At the hearing, we and the prosecutor will present evidence and argue whether the officers violated your rights. The judge will then issue an order throwing out all, some, or none of the evidence.

WHAT IS THE HEARING ABOUT?

A motion to suppress tries to have evidence thrown out that police obtained in violation of your constitutional rights. For example, the motion may challenge evidence or statements you made that are the product of an illegal traffic stop or illegal questioning.

The point of a hearing on a motion to suppress is not to see whether you are guilty, but to determine whether the police violated your constitutional rights—the focus is on what the officers did, not what you did. The judge will then decide whether the prosecutor will be allowed to show the evidence to the jury.

EVIDENCE IS PRESENTED

At the beginning of the hearing, we and the prosecutor will present evidence to the judge. The evidence will usually come from questioning witnesses and playing any video footage the officers took on the scene.

ARGUMENT

Once all of the evidence has been received, we will then argue what the facts are based on the evidence and why the facts show that your constitutional rights were violated.

RULING

The final step is for the judge to decide whether to grant the motion to suppress and throw out the evidence. The judge may either issue a ruling immediately at the hearing or “reserve” ruling to think more about the facts and law. Additionally, the judge’s ruling could be either oral or written.

The ultimate ruling can take one of several different forms:

  • The judge may grant the motion to suppress in its entirety and throw all of the evidence out.
  • If the judge finds that only some of the evidence was obtained as a result of a violation of your rights, then the judge may throw out that evidence but let the other evidence stand.
  • The judge may deny the motion to suppress entirely. If this is the case, then the prosecutor is allowed to introduce the evidence at your trial.

EVIDENCE IS PRESENTED

At the beginning of the hearing, we and the prosecutor will present evidence to the judge. The evidence will usually come from questioning witnesses and playing any video footage the officers took on the scene.

ARGUMENT

Once all of the evidence has been received, we will then argue what the facts are based on the evidence and why the facts show that your constitutional rights were violated.

RULING

The final step is for the judge to decide whether to grant the motion to suppress and throw out the evidence. The judge may either issue a ruling immediately at the hearing or “reserve” ruling to think more about the facts and law. Additionally, the judge’s ruling could be either oral or written.

The ultimate ruling can take one of several different forms:

  • The judge may grant the motion to suppress in its entirety and throw all of the evidence out.
  • If the judge finds that only some of the evidence was obtained as a result of a violation of your rights, then the judge may throw out that evidence but let the other evidence stand.
  • The judge may deny the motion to suppress entirely. If this is the case, then the prosecutor is allowed to introduce the evidence at your trial.

What To Expect At Your Plea Hearing

BEFORE THE PLEA

  • When you show up to court for your plea hearing, be sure to dress nicely to make a good impression on the judge.
  • Once we’re in court, we usually have to wait in line while the judge goes through a list of cases.
  • Once your case is called up, you and your attorney will walk up and tell the judge that you are pleaing and what the agreed-upon conditions are.

THE PLEA HEARING

The judge will then ask a series of questions to make sure you understand the consequences of your plea. You can see a list of questions the judge may ask in the next section below.

QUESTIONS THE JUDGE MAY ASK

  • Do you understand the minimum and maximum penalties of your charges?
  • Has anyone forced you or promised you anything (other than the plea offer) to get you to enter this plea?
  • Are you under the influence of alcohol, drugs, or medication?
  • Are you satisfied with your representation by your lawyer?
  • Do you understand that you are giving up certain rights by entering this plea, including the right to remain silent, the right to confront your accusers, the right to present witnesses on your behalf, and the right to a trial by a jury of your peers?

You don’t have to worry about the judge asking questions about the case, as that almost never happens. The judge is more concerned with making sure you understand what you are pleaing to.

AFTER THE PLEA

Once the judge accepts your plea, we will wait for paperwork. If you are put on probation, you will have to take your paperwork to the probation office to check in, which usually must be done on the same day as the plea. We will go over this and any other consequences of your plea in detail after the plea hearing.

Trial

JURY SELECTION

The first step of trial is choosing who will serve on the jury. During jury selection, we question potential jurors and try to remove jurors who would be bad for your case.

OPENING STATEMENTS

Trial will begin once your jury is selected, starting with opening statements. This gives us a chance to explain to the jury what we think the evidence will show.

RULING

Once opening statements are completed, the prosecutor will be the first to present evidence by questioning witnesses and showing pictures or videos that were taken in your case.

DEFENSE CASE-IN-CHIEF

Once the prosecutor has finished presenting evidence, we can present evidence for your side. This isn’t required, and sometimes it’s beneficial not to put on a case—for example, when the prosecutor’s evidence fails to prove that you are guilty.

MOTIONS

Once each side’s evidence is presented, we can make certain motions to the judge, which asks the judge to take a certain action on the case. We will typically make a motion for a judgment of acquittal, which argues that even if the jury believes all of the prosecutor’s evidence, it still doesn’t prove that you committed the charged crimes. We might also make a motion for mistrial if you didn’t get a fair trial.

CLOSING ARGUMENT

If the judge decides to send the case to the jury, each side will make closing arguments. This allows us and the prosecutor to summarize the evidence and argue whether it proves that you are guilty.

VERDICT

The judge will then tell the jury the process for reaching a verdict, and the jury will finally be sent to a separate room to deliberate and decide whether the State has proved that you committed the charged crime.

Download A Free Copy

Want a digital copy of our Criminal Process Chart? Click below to download everything as a PDF.

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Questions to ask your potential lawyer
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Questions To Ask Your Potential Lawyer
Questions To Ask Your Potential Lawyer 1920 1080 Leppard Law - Top Rated Orlando DUI Lawyers & DUI Attorneys in Orlando

Deciding on a lawyer can be an extremely difficult and oftentimes daunting task. How do you know what to ask, and who will best fit your legal needs? Before you decide on a lawyer to handle your case, you want to have a list of questions to discuss during your free or low-cost consultation.

Below are nine questions to ask your potential attorney before making your choice.

1. What is your education, work experience and practice areas?

2. How long have you practiced law in the State of Florida?

3. Have you won any awards or other industry recognition?

4. Have you ever been sanctioned for, or accused of, attorney misconduct?5. Can you provide me with reviews and references from former clients and other attorneys familiar with your work?

6. What is your plan for my case?7. How long do you estimate this case will take?

8. What is my role and responsibilities?

9. What are the fees and expenses?

Call (407) 476-4111 for a free consultation to determine if you are a good fit for our firm.

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How to Handle Your No Contact Order and Your Domestic Violence Charge
How to Handle Your No Contact Order and Your Domestic Violence Charge 150 150 Leppard Law - Top Rated Orlando DUI Lawyers & DUI Attorneys in Orlando

 When there is a no contact order placed against you, it is an extremely difficult time. Here are some frequently asked questions and helpful answers for you. If you are ever unsure about anything, contact your attorney and ask for his/her advice.

There is a no contact order in place against me, what does that mean?

A “no contact order” means you are prohibited from having any contact with the alleged victim, directly, indirectly. You cannot see or visit the alleged victim, you cannot call, you cannot write or e-mail the alleged victim. You cannot drive by their residence. Contact through a third party can also be a violation of the court’s order. Even if you attend the same church, temple, mosque, school, or other function that the alleged victim is attending, you should not go to that event. No contact means no contact.

What happens if I violate the order?

You will be arrested and have a higher bond set, or possibly have no bond. You may also have additional charges brought against you for violation of a domestic Violence order or injunction.

How will anybody know if I violate the order?

There are many ways the court can determine if you have violated a no contact order. Eyewitness testimony, phone records, social media and voice mail can provide evidence that you have violated an order. Letters and e-mails can also be shown as evidence. The burden of proof can be considered relatively low.

What if the alleged victim doesn’t want to press charges?

The State of Florida makes a decision to proceed with the charges or not. The alleged victim can contact the State Attorney’s or an attorney to file a Declination of Prosecution, which is the first step in resolving the case in your favor. The order will still be in place and will not be removed until the case is over or the court modifies it. Any modification of this condition requires a motion before the court and must be filed by your attorney.

Will I violate the no contact order if the alleged victim invites or initiates contact?

Yes. If the order states that there is to be no contact and you communicate back with the alleged victim, you will be in violation of that order.

Will I violate the order if we continue to live together?

Yes. If the order states that you must maintain separate residences or must not have contact with the alleged victim, then you are in violation of the order if you continue to live together.  Even if the alleged victim invites you to come home, you will violate the order. Only the judge can change or dismiss an order.

What if I own the house where we both live? Do I have to move out of my own house?

Not necessarily. If you own the house or lease (meaning that your name is the only name on the deed or lease), you will need to ask your attorney to have the conditions of your release modified so you may safely and legally get the alleged victim out of your home or pick up your belongings. Make sure you ask your attorney or the judge for this special condition, but if you do not own the house or lease, you must not ask to have the alleged victim removed.

Is there a violation of the order if I am required to vacate the residence, but I move in with the alleged victim at another address?

Yes. You must not move in with him or her at another address.

What if the alleged victim continues to come and see me at my place of business or new home?

Politely refuse to see or speak with the alleged victim and immediately contact your attorney. Go to a separate room or part of the building and shut the door. Have a co-worker or friend politely tell the alleged victim that there is an order in place, that you can have no contact with the alleged victim, and to please leave the premises. You can also file a petition to have an injunction against the alleged victim. You can call the Domestic Relations Division of the Orange County Clerk’s Office at (407) 836-2054 to get more information on filing an injunction.

What if I want to see my children and the alleged victim is the one living with them?

You must go through the court system to get visitation of your children when there is a no contact order in place.

How can we get the order removed?

Once the case is resolved, all conditions of your release are no longer enforceable. You may request your attorney to file a motion with the court to modify the no contact order.

What if the court has ordered no-hostile contact?

No-hostile contact means you can see or visit the alleged victim, you can call, you can write or e-mail the alleged victim. You may also share the same residence. You cannot have any contact with the alleged victim that rises to the level of violence or hostile behavior. The alleged victim will largely get to decide what is and is not hostile contact.

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Definitions of Commonly Used Terms in Criminal Law
Definitions of Commonly Used Terms in Criminal Law 150 150 Leppard Law - Top Rated Orlando DUI Lawyers & DUI Attorneys in Orlando

Acquittal – A release, absolution, or discharge of an obligation or liability. Commonly in criminal law, this can happen when a jury finds a defendant not guilty of a criminal charge.
Adjudication – Giving or pronouncing a judgment or decree; the judgment given. This term is common used when a judge finds and adjudicates a defendant “Guilty.”
Adjudication Withheld – A court decision at any point after filing charges to continue court jurisdiction but stop short of conviction. The court will not reopen unless the person violates a condition of behavior.
Affidavit – A written declaration of facts, confirmed by oath of the party making it before a person with authority to administer the oath.
Affirmed – In the practice of appellate courts, the word means that the decision of the trial court is upheld.
Appeal – A proceeding brought to a higher court to review a lower court decision.
Arraignment – The hearing at which the accused is brought before the court to plead to the criminal charge in the indictment, affidavit, or citation. He/She may plead “guilty,” “not guilty,” or where permitted “nolo contendere.” (See Preliminary Hearing.)
Bond – A written agreement by which a person insures he/she will pay a certain sum of money if he does not perform certain duties properly. (See Cash Bond and Surety Bond.)
Capital crime – A crime punishable by death.
Cash Bond – A written agreement in which a defendant, or another person on the defendant’s behalf, ensures he/she will perform duties as outlined by the Court while awaiting trial by depositing bail money (cash) with an authorized official equal to the bail bond set by the Court.
Citation – A writ or order issued by a court or law enforcement agency commanding the person named therein to appear at the time and place named; the written reference to legal authorities, precedents, reported cases, etc., in briefs or other legal documents.
Concurrent sentences – Sentences for more than one crime that are to be served at the same time, rather than one after the other.
Consecutive sentences – Successive sentences, one beginning at the expiration of another, imposed against a person convicted of two or more violations.
Conviction – A judgment of guilt against a criminal defendant.
Court Appointed Counsel – Government lawyer who provides legal defense services to a person accused of a crime who cannot afford a private attorney. The defendant must be declared indigent and is responsible for paying an application fee and any reduced legal fees assessed by the Court. See also Public Defender.
Defendant – The person charged with a crime in a criminal prosecution.
Extradition – The surrender of an accused criminal by one state to the jurisdiction of another.
Felony – A serious criminal offense. Under Florida law, it is any offense punishable by
imprisonment for a term exceeding one year or death.
Grand Jury – A jury of inquiry whose duty it is to receive complaints and accusations in criminal matters and if appropriate issue a formal indictment.
Hearing Officer – (also known as a Magistrate) Judicial officer exercising some of the functions
of a judge.
Judgment – The official and authentic decision of a court of justice upon the rights and claims of parties to an action or suit submitted to the court for determination.
Jurisdiction – The power or authority of a court to hear and try a case; the geographic area in which a court has power or the types of cases it has power to hear.
Jury – A certain number of citizens selected according to law and sworn to try a question of fact or indict a person for a public offense.
Lien – An official claim against property for payment of a debt or an amount owed for services rendered.
Magistrate – (also known as a hearing officer) Judicial officer exercising some of the functions of a judge.
Misdemeanor – A criminal offense lesser than a felony and generally punishable by fine or by imprisonment other than in a penitentiary. Includes criminal traffic violations.
Motion – A request made to a court or judge which requests a ruling or order in favor of the applicant.
No True Bill – This phrase, endorsed by a grand jury on the written indictment submitted to it for its approval, means that the evidence was found insufficient to indict.
No Bill or Notice of No Information – Issued by the State Attorney when the charges against a defendant are dropped prior to formal charges being filed by the State.
Nolo Contendere (No Contest) – A plea made by a defendant to a criminal charge, meaning he/she will not contest the charge, allowing the judge to find him/her guilty. This is also known as a “plea of no contest.”
Nolle Prosequi – This Latin phrase means that the prosecution or State Attorney will no longer prosecute the criminal case. In some circumstances, the case can be again be brought up for prosecution.
Non-jury trial – Trial before the court but without a jury; also known as a “bench trial” –which is a reference to a judge’s “bench.”
Opinion – A judge’s written explanation of a decision of the court or of a majority of judges.
Order – A mandate, command, or direction authoritatively given. Direction of a court or judge
made in writing.
Ordinance – A rule established by authority; may be a municipal statute of a city council or a county statute of a county commission, regulating such matters as zoning, building, safety, matters of municipality, etc. An ordinance violation can be criminal or non-criminal. A violation could be punishable by a court appearance, a fine, and possibly by confinement in a county jail.
Plea – The written or verbal response by an accused defendant to each charge of the commission of a crime. The defendant’s answer to the charges made in the indictment or information.
Preliminary hearing – (also preliminary examination) A hearing by a judge to determine whether a person charged with a crime should be held for trial. (See Arraignment.)
Pretrial Conference – Conference among the opposing attorneys and the judge called at the discretion of the court to narrow the issues to be tried and to make a final effort to settle the case without a trial.
Pretrial Diversion – The process of removing some minor criminal, traffic, or juvenile cases from the full judicial process, on the condition that the accused undergo some sort of drug rehabilitation or make restitution for damages.
Probable cause – A reasonable belief that a crime has or is being committed; the typical basis for lawful searches, seizures, and arrests.
Probation – An alternative to imprisonment allowing a person found guilty of an offense to stay in the community, usually under conditions and under the supervision of a probation officer. A violation of probation can lead to its revocation and to imprisonment.
Prosecutor – A trial lawyer representing the government in a criminal case and the interests of the state in civil matters. In criminal cases, the prosecutor has the responsibility of deciding who and when to prosecute. They are also known as a State Attorney.
Public Defender – Government lawyer who provides legal defense services to a person accused of a crime who cannot afford a private attorney. The defendant must be declared indigent and is responsible for paying an application fee and any reduced legal fees assessed by the Court.
Recuse – The process by which a judge is disqualified from hearing a case, on his or her own motion or upon the objection of either party.
Regional Counsel – (also known as the Criminal Conflict and Civil Regional Counsel)
Government lawyer who provides legal defense services to a person accused of a crime who cannot afford a private attorney. The defendant must be declared indigent and is responsible for paying an application fee and any reduced legal fees assessed by the Court.
Released on own recognizance – (also known as ROR) Release of a person from custody without the payment of any bail or posting of bond, upon the promise to return to court.
Remand – To send a dispute back to the court where it was originally heard. Usually it is an appellate court that remands a case for proceedings in the trial court consistent with the appellate court’s ruling.
Restitution – Returning to the proper owner property or the monetary value of loss.
Reverse – An action of a higher court in setting aside or revoking a lower court decision.
Revoke – To cancel or nullify a legal document.
Sentence – The punishment ordered by a court for a defendant convicted of a crime.
Stay – A court order halting a judicial proceeding.
Subpoena – A command to appear at a certain time and place to give sworn testimony upon a certain matter.
Subpoena Duces Tecum – A court order commanding a witness to bring certain documents or records to court.
Summons – A document commonly used to commence a civil action or special proceeding; the means of acquiring jurisdiction over a party.
Surety Bond – A written guaranty which is purchased from a bonding company (bail bondsman) by the defendant or on his/her behalf, to guarantee some form of performance, including showing up in court.
Trial – A judicial examination of issues between parties to an action. The issues could be
presented solely to the judge for a ruling or also to a jury of the defendant’s peers. (See Jury.)
Vacate – To set aside.
Verdict – A conclusion, as to fact or law, which forms the basis for the court’s judgment.
Warrant – Most commonly, a court order authorizing law enforcement officers to make an arrest or conduct a search. An application seeking a warrant must be accompanied by an affidavit which establishes probable cause by detailing the facts upon which the request is based.
Writ – A judicial order directing a person to do something.

 

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Policing for Profit
Policing for Profit 150 150 Leppard Law - Top Rated Orlando DUI Lawyers & DUI Attorneys in Orlando

GOOD-Cops-Main

Civil forfeiture laws allow police to seize your property, sell it and use the money to fund agency budgets. This means your car, cash, real estate or other property can be taken from you even if you are not convicted or charged with a crime.

I’m sure you are wondering how your property can be taken from you if you are not involved in any criminal activity. The answer to that is: Civil forfeiture is basically a way for the courts to try inanimate objects for their involvement with criminal activity. That is why civil forfeiture actions are in rem proceedings, which means “against or about a thing.”

Originally, civil forfeiture was created to drain resources from powerful criminal organizations, but today it has become a way of funding for law enforcement agencies and has also led to personal gain.  According to a 2003 article in the St. Petersburg Times, Tampa Bay police seized and kept cars for their own use. “The seized fleet consisted of some 42 cars, including a Lincoln Navigator, a Ford Expedition, and, Police Chief Bennie Holder’s favorite, a $38,000 Chevy Tahoe.”

In Florida, law enforcement must prove with clear and convincing evidence that the property being seized was related to criminal activity. Although this is a higher standard than most other states, it still puts property owners at a disadvantage. This is because unlike a criminal forfeiture case, in which the government has to prove someone is guilty “beyond a reasonable doubt,” the standards in a civil forfeiture case are much less rigorous. According to the Institute for Justice, “law enforcement in Florida still receives 85 percent of the funds generated from civil forfeiture.”

It is also a misconception that most people who have their property seized are wealthy. Some low-income families who do not have the resources to get their property back are also targeted by law enforcement. Regardless of socioeconomic status, it is not fair that likely innocent people are being stripped of their property without ever being convicted of a crime.

 

For more information, please read:

The Institute for Justice’s Initiative to End Policing for Profit

The Huffington Post article “Above the Law: New DPA Report Finds ‘Policing for Profit’ Gone Wild”

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Financial or White Collar Crimes
Financial or White Collar Crimes 150 150 Leppard Law - Top Rated Orlando DUI Lawyers & DUI Attorneys in Orlando

corporate crime

White collar crimes involve deceiving individuals, organizations or companies of their money. This type of crime is non-violent and usually occurs when a person in a position of trust abuses his/her power. Some examples of white collar crimes include, but are not limited to:

  • Fraud
  • Money laundering
  • Electronic or cyber crime
  • Bribery and corruption
  • Embezzlement
  • Blackmail
  • Forgery
  • Tax Evasion

Although these crimes do not cause physical harm, they may carry heavy consequences. In Florida, penalties can include:

  • Second Degree Misdemeanor: Up to 60 days in jail and/or fines not exceeding $500.
  • First Degree Misdemeanor: Jail sentence up to 1 year and/or fines not exceeding $1,000.
  • Third Degree Felony: Imprisonment up to 5 years and/or fines up to $5,000.
  • Second Degree Felony: Imprisonment up to 15 years and/or fines not exceeding $10,000.
  • First Degree Felony: Imprisonment for up 30 years or possible life imprisonment and/or fines not exceeding $10,000.

An aggravated white collar crime is defined under the Florida White Collar Crime Victim Protection Act as “engaging in at least two white collar crimes that have the same or similar victims, results, accomplices, intents, or methods of commission, or that are otherwise related by certain characteristics showing the offenses are not isolated from each other.” An aggravated white collar crime is a first degree felony.

It is important to hire a defense attorney if you are charged with or believe you are being investigated for committing a white collar crime. Common defenses include 1) Challenging or disproving the state’s case and 2) Entrapment, which is when law enforcement induced someone to commit a crime that he/she would not have committed otherwise.

For more information on the different types of white collar crimes, please visit: http://www.hg.org/article.asp?id=36300

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Drug Trafficking Mandatory Minimums
Drug Trafficking Mandatory Minimums 150 150 Leppard Law - Top Rated Orlando DUI Lawyers & DUI Attorneys in Orlando

When it comes to drug trafficking charges, a person does not have to actually sell a drug in order to break Florida’s drug trafficking laws. Different drugs carry a different minimum mandatory prison sentence based on the weight of the drug. For example, possession of 1 gram or more of LSD can result in a >1 but less than 5 gram Trafficking in LSD charge.

Minimum mandatory prison sentences do not usually receive “gain time,” or a reduction in prison time for inmates who display satisfactory behavior , educational attainment or participate in other incentive programs. Cases involving drug trafficking charges, however, are entitled to gain time. This is because the court in Mastay v. McDonough, Florida Department of Corrections, 928 So. 2d 512 (Fla. 1st DCA 2006), held that drug trafficking charges are eligible for gain time, just  not discretionary release.

Drug trafficking offenses are taken very seriously, with mandatory minimum sentences that range from 3 years to 25 years in prison. If you are arrested for trafficking, it is crucial to contact an experienced Orlando criminal defense attorney to represent and defend you in court.

The chart below shows the minimum mandatory sentences for trafficking in various drugs:

[table id=2 /]

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Possible Penalties and Defenses for Driving With a Suspended License
Possible Penalties and Defenses for Driving With a Suspended License 150 150 Leppard Law - Top Rated Orlando DUI Lawyers & DUI Attorneys in Orlando

In Florida, a driver’s license may be suspended for a variety of reasons, including, but not limited to:

  • Failure to pay a traffic fine.
  • Failure to pay child support.
  • Failure to maintain insurance.
  • Reckless driving.
  • Driving Under the Influence (DUI).
  • Accumulation of traffic points.

There are a number of driving related offenses that someone could get in trouble for, such as driving without insurance. One of the biggest problems is people driving without a valid license. A person who is caught driving with a suspended license may face serious consequences. A person driving under a suspended license with knowledge of the suspension can be charged with a criminal offense. Under Section 322.34, Florida Statutes, a first offense for driving with a suspended license (with knowledge of it being suspended, canceled or revoked) can result in 60 days jail and a fine of up to $500.00.

A person driving under a suspended license without knowledge of the suspension can receive a civil citation, where they must pay a fine.

Driving with a suspended license—either with or without knowledge—also counts as one of the “Three Strikes” toward being labeled a “Habitual Traffic Offender.” If an individual receives three convictions within five years for, among others charges: Driving with License Suspended (even if you are not arrested) Driving Under the Influence (DUI), Fleeing and Eluding that individual will be labeled a “Habitual Traffic Offender” and lose their license for five years. If charged with a subsequent Driving with License Suspended offense while a Habitual Traffic Offender, this offense is a Third Degree Felony punishable by up to 5 years in prison, 5 years probation and a $5,000 fine.

Contact an Orlando experienced criminal defense attorney for a free consultation if you have been accused of driving on a suspended, canceled, or revoked license. You may be able to contest the charge or minimize penalties.

Some possible defenses include:

  • Challenging the validity of the traffic stop.
  • The accused was not aware that his license was suspended (in which case, under Florida law, the charge must be reduced to a non-criminal traffic violation).
  • The accused’s Florida driver’s license had been reinstated or adequate reason existed to believe it had been reinstated.
Frequently Asked Questions After an Arrest
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Frequently Asked Questions After an Arrest
Frequently Asked Questions After an Arrest 1920 1080 Leppard Law - Top Rated Orlando DUI Lawyers & DUI Attorneys in Orlando

1. What rights do I have?

Whether you are an adult citizen or non-citizen, you have certain constitutional rights after you are arrested. Before the law enforcement officer questions you after an arrest, he or she should tell you that:

  • You have the right to remain silent.
  • Anything you say may be used against you.
  • You have a right to have a lawyer present while you are questioned.
  • If you cannot afford a lawyer, one will be appointed for you.

These are your Miranda rights, guaranteed by the U.S. Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court.

You also have a right to know the crime or crimes with which you have been charged and the identity of the police officers who are dealing with you.  Not every officer is forthcoming about this information, even though is your right by statute. You also have the right to communicate by telephone with your attorney, family, friends, or bondsperson as soon after you are brought into the police station as practicable. The police are allowed to complete their booking procedures before letting you use the telephone.

At this point, you should probably consider whether to use a local lawyer, especially if you were injured as part of the arrest and you feel as if the injury was unwarranted.

2. If my Miranda Rights weren’t read, does this mean my charges will be dropped?

This is one of the most common questions I receive in my law practice.  Many people think that simply because the police failed to read them their rights, that the case is going to be automatically be thrown out. This is not true. Typically, the only thing that would happen if the rights were not read is that anything that said in response to police questioning after an arrest could not be used against you in your case.

Very frequently, officers have gathered all the information that they need PRIOR to the arrest and will not question suspects after their arrest and, thus, Miranda never needs to be read.    When the police have questioned you without reading your rights and, for example, you made a statement, that statement would not be able to be used in the case against you.  In most situations, it is best to not answer questions without having an attorney present.  If you ask to speak with an attorney, an officer must immediately cease questioning you.

Another common situation is where a suspect voluntarily provides information to the police that is not in response to a question.  In this situation, Miranda would typically not apply.  Miranda is a complicated area of the law with lots of rules and exceptions.  It’s best to consult with an experienced defense attorney to determine if your Miranda rights were violated in your situation.

3. What happens at an Initial Appearance?

Within 48 hours of your arrest, a judge will hold a preliminary hearing to decide whether there is “probable cause for your arrest” or enough evidence to support the charge against you. If the judge finds that there is “probable cause” for the charges — enough evidence that a reasonable person could be convinced that you committed the crime – then the judge will set the terms of your release.  The terms of release normally include a monetary bond set by the judge at the initial appearance and can also include other restrictions like checking in with a Pre-Trial Release Officer, not using or possessing weapons or not having any contact with the alleged victims of the case.

4. What is bail and how is it set?

The amount of bail bond – money or other security deposited with the court to insure that you will appear.  When setting the terms of your release, the judge will consider the seriousness of the offense with which you are charged, any prior failures to appear in court (even for traffic tickets), any previous criminal record, your ties and connections to the community, as well as the probability that you’ll appear in court.  Florida law provides that for most cases bond should be set in at reasonable amount that is attainable by the defendant. In reality, oftentimes a judge may set bond at an amount too high for a defendant to afford.  A criminal defense attorney can file a motion with the court asking the judge to reduce the bond and/or modify the conditions of release (such as not having any contact with the victim).

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