Tag: miami criminal lawyer

There are several ways that a person can be held without a bond in Florida state courts. In this article I will walk you through them.

Re-Arrested While On Pre-trial Release

The first and most common way that people end up in custody without a bond is because they are re-arrested on a new criminal offense while on pre-trial release for a criminal offense.  When this happens the person will be held at the bond hearing on the new charge for them to go in front of the original judge who will then revoke their bond on the original case.  A judge always has discretion to reconsider setting a bond after revoking a person’s bond and a lawyer can file a motion to have the judge re-evaluate all the circumstances and issue a new bond.

Non-Bondable Offense

A person can also be held without a bond if they are arrested for what we call “non-bondable offenses.”  These are offenses that carry a maximum penalty of life in prison or death.  If a person is arrested on a non-bondable offense he or she will be held without a bond until a hearing is held.  This hearing is called an Arthur hearing.  At the Arthur hearing the prosecutor will need to prove that the person is guilty of the charged offense by a standard called “proof evident, presumption great.”  It is a standard that is higher than proof beyond a reasonable doubt.  If the prosecutor cannot meet that burden at the hearing the judge has to set a reasonable bond.  Even if the prosecutor can meet that standard, however, the judge still has the discretion to set a bond.  This is why it is important that your lawyer request an Arthur hearing on your behalf.

Probation Violation

A person can also be held without a bond while pending a probation violation hearing.  A probationer who is accused of violating his or her probation is not entitled to a bond pending the violation hearing.  A lawyer, however, can still file a motion with the court asking the court to consider some form of release pending the violation.  Although these motions are rarely granted, it might trigger the court to become involved towards facilitating a resolution to the violation with the prosecution and may result in the probationer being reinstated sooner than the hearing date.

If you or a loved one are facing the possibility of being held without a bond for a criminal offense give us a call or enter your information on the form in this page for a free consultation.  We would love to help.

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So you or a family member got arrested. What should you do? How do you get out of jail? What’s the next thing that’s going happen? What are the most important things that you should do?

I’m going to answer all of those questions and more. But first, here’s a list of the criminal justice process in chronological order:

  1. Arrest
  2. First Appearance/Bond Hearing
  3. Arraignment
  4. Sounding/Plea Date
  5. Trial

What Should You Do?

The most important action you can take for your case is to hire an experienced criminal defense attorney. Obviously, I recommend my firm, Cornish, Hernandez, & Gonzalez PLLC. But whatever attorney you choose should be knowledgeable, experienced, and aggressive enough to take your case to trial. After all, you already got arrested, so the prosecution has already started on the offensive. You want to be able to respond decisively.

A lawyer unwilling to go to trial is like an attack dog with no teeth. A toothless attack dog isn’t much of a threat. Likewise, no prosecutor or judge will consider a toothless attorney a threat.

ARREST

An arrest is the event that typically begins a criminal case and sets the wheels of the criminal justice system in motion.

The police officer believes you committed a crime. So he wraps a pair of handcuffs around your wrists and takes you to jail. You sit in jail until you can get out (that could be 12 hours or 12 months).  So, what are the most important things that you or your family members can do for you?

  1. The most important thing to do is GET OUT OF JAIL!

If you’re arrested, you have to stay in jail until a judge decides to release you or until you pay your bond. From the moment you’re arrested, there’s a set amount of money that you have to pay to get out of jail (unless you’re charged with a non-bondable offense – then there’s no amount of money you can pay to get out of jail, at first). The amount you have to pay is decided by the crimes you’re charged with. Your family or friends can find out the amount of your bond by calling the jail you’re in and asking or calling a bail bondsman.

It’s best to pay that amount as soon as possible because the judge at the First Appearance Hearing has the power to raise the amount you have to pay to get out of jail (that judge can lower the amount as well, but it’s better not to take an unnecessary risk). In order to pay the bond, it’s best to contact a bondsman; they typically charge you only 10% of the total bond amount. A quick Internet search for Miami Bondsman will reveal a host of options.

  1. The second most important thing is to GET A LAWYER!

Whether you got arrested, or are pending arrest, immediately hiring an experienced criminal defense lawyer is critical for you and your case. He or she can assess the strengths and weaknesses of your case, gather helpful evidence that is quickly destroyed (like store surveillance), help you get out of jail, and generally maneuver the system with the ease born of experience. Also, it’s a sad fact that many judges and prosecutors don’t take an accused person as seriously as they would his lawyer. If you want a judge to take your argument or position seriously, you need a lawyer who knows what he’s doing to represent you.

FIRST APPEARANCE

The First Appearance is also known as a “Bond Hearing.” Every person in Florida who’s arrested and is still in jail is legally required to see a judge within 24 hours of his or her arrest. Fla. R. Crim. Pro. 3.130. At that hearing, the judge does two things:

  • Decide if there is Probable Cause and if there is,
  • Sets a bond, the amount of money a defendant has to pay to get out of jail.

Probable Cause

The judge may only hold you on bond if there is probable cause for your arrest. Essentially, the judge reads the arrest form that the police officer wrote and checks to see if there’s some proof for every element of the law he or she is accusing you of breaking. If the judge decides that there is no probable cause for any crime, she must release you. This will not change the fact that you got arrested, or get rid of your criminal case, but at least you’ll go home without having to pay a bond.

If the judge decides that there is probable cause for a crime, she must then set a bond.

Setting a Bond

The judge has the power to (1) raise the bond, (2) leave the bond the same amount that was issued to you when you got arrested, (3) lower the bond, or (4) release somebody for free can leave the standard bond as it is but she also has the power to lower the amount of bond, release people for free (rarely done), or increase the amount of their bond. Remember, every defendant

So, what are the most important things for you to do if you or your family member has a first appearance hearing coming up?

  1. GET A LAWYER!

I cannot stress this point enough, the most important thing to do for your criminal case is to get an experienced criminal defense lawyer. An experienced lawyer has the best chance to lower your bond and then facilitate your release as soon as possible. He also knows how to coordinate with the Department of Corrections if there are any release conditions (like GPS monitoring or House Arrest) that need to be arranged.

  1. HAVE FAMILY MEMBERS ATTEND THE FIRST APPEARANCE

Judges are people. People who handle hundreds of cases every day. To them, each defendant is nothing more than an arrest form. To them, you are not different than all the other people that got arrested. And it’s hard for a person to feel emotion for and want to help a piece of paper. The best way to shake judges out of that attitude is to have your family there to show the judge that the person in front of them is a human being who has people that love him. That alone, goes a long way to persuading judges to release you or your family member from jail.

TO BE CONTINUED…

There’s three more steps in the life of a criminal case: (1) Arraignment, (2) Sounding or Plea Date, and (3) Trial. I’ll explain those in the next blog post.

If you want to say anything about this blog post or ask any questions, let us know in the comments, by email, or through our Facebook page. If you want us to cover any specific topics, let us know in the comments or shoot us an email at info@chglawyers.com.

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In the last few weeks we’ve seen the violent “Unite the Right” rally in Charlottesville, a “free speech” rally in Boston, and similar rallies in San Francisco and Berkeley today. That’s got talking heads throwing around the phrases “First Amendment” and “free speech.”

This isn’t a political opinion piece; you can find those elsewhere. Instead, I want to talk about the limit of the 1st Amendment: when can you be thrown in jail and charged with a crime for nothing more than the words that come out of your mouth.

FREE SPEECH DOESN’T DISCRIMINATE

            The 1st Amendment gives people in America the right to say whatever is on their mind. You can shout from a mountaintop that you love puppies, flowers, and ice cream. That’s fine. You can stand on that same mountaintop in KKK robes and shout that all immigrants should be deported and that all people of color jailed. The law says both are okay.

Morally different, legally equivalent.

WHEN TALKING IS ILLEGAL

The 1st Amendment doesn’t protect all speech. There are situations where you can go to jail just for words spilling out of your mouth. In Florida, if the police arrest you just for talking, the crime you’re most likely to be charged with is Breach of Peace, aka Disorderly Conduct.[1] That law makes it illegal to “corrupt the public morals,” “outrage the sense of public decency,” or “affect the peace and quiet of persons.”

After decades of police arresting people for disorderly conduct, Florida courts have made it real hard to convict people of it based on words alone. Here’s a few ways someone can be convicted of disorderly conduct just for the hot air coming out of their mouth:

  1. Shouting “Fire!” in a crowded theater.

This is basic, don’t be a jerk … unless there’s actually a fire. Then you should definitely shout fire, call 911, and get away from the fire.

  1. Inciting a crowd to engage in an immediate breach of peace.

Basically, if you’re calling for a crowd to breach the peace or do violence, and you’re such a persuasive speaker that the crowd responds, that’ll be a breach of the peace.[2] That brings to mind scenes from recent campaign rallies.

  1. Using “Fighting Words”

Fighting words are things you say to somebody that would cause the average person to fight.[3] They have to be egregiously terrible words too because saying, “fuck you, pussy cracker”[4] to a police officer and calling a cop a “motherfucker”[5] aren’t considered fighting words.

            That means you can tell your favorite “your mama” joke without fear of getting arrested.

THE LAW OF THE STREET

Everything that I’ve written about so far is about the law as it’s written by the Florida Congress and interpreted by the Florida Courts. You should take notice that neither your Congresswoman nor Appellate Judges are likely to be hanging around when someone’s insulting a police officer. On the street, police officers have the power. So if you decide to start insulting police officers, remember that they can arrest you and let the lawyers sort it out.[6]

Being polite and respectful to police is in your own self-interest. Save your favorite “your mama” joke for your friends.

If you liked this article, have any comments, or have any questions, let us know in the comments. Also, if there are any topics that you want us to cover in a blog post, let us know in the comments, on Twitter, or by email.

[1] Florida Statute § 877.03

[2] That brings to mind scenes from certain recent campaign rallies.

[3] Clanton v. State, 357 So. 2d 455 (2d DCA 1978)

[4] C.P. v. State, 644 So.2d 600 (2nd DCA 1994)

[5] C.L.B. v. State, 689 So.2d 1171 (2nd DCA 1997)

[6] That’s what I get paid to do.

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It is unfortunately very easy to be arrested in Miami Dade County based on misdemeanor allegations of domestic violence.  All it takes for the police to take you away is for your significant other (or even ex-significant other) to say that you have hit them, pushed them, or threatened to do harm to them.

What is different about DV?

Unlike typical charges where a person who is arrested can simply bond out to a standard bond without having to wait in jail to see the judge, Florida law (Florida Statute 741.2901(3)) requires that a person arrested for a domestic violence charge be held in custody until brought before the court for a bail determination.  This means that you will spend up to two days in jail waiting to be brought before the judge to get a bond.  For misdemeanor domestic violence charges, the bond hearings take place at the Lawson E. Thomas Courthouse Center located at 175 NW 1st Ave, Miami Florida 33128.

You get before a Judge, then what?

Once you appear before the judge for bail determination the prosecutor will routinely argue that you should be held on a monetary bond and will object to any other form of pre-trial release.  Your lawyer can ask the judge to release you on a kind of release called “pre-trial services.”  If you’ve previously been accused of domestic violence, the judge will likely require you to post a money bond.  Money bonds can range from $1,500, which is the standard for a misdemeanor domestic violence battery, to anything in the $50,000+ range with house arrest.  The amount will depend on who the judge is, whether you’ve been previously accused of domestic violence, and what the allegations for which you were arrested are.

The Stay Away Order

During this hearing the judge will also issue a domestic violence stay away order. The stay away order prohibits the person arrested from having any kind of contact with the alleged victim in the case.  The order also prohibits the person arrested from coming within 500 feet of the alleged victim’s home, workplace, and car. A violation of this “stay away order” is a misdemeanor of the first degree in Florida and can get you up to 364 days in the county jail per charge. (Regardless of whether the underlying allegations are true).  The stay away order can also be used by the prosecution to make a misdemeanor stalking case into a felony case.

If the person who is accusing you of domestic violence is in court and wants to have contact with you he or she can ask the judge to have that order lifted.  These orders are usually never lifted during this hearing but most judges will reconsider lifting them a couple of weeks after the incident once the incident is not so recent.

Note: This is a very easy way for someone who lives in your house to evict you. It doesn’t matter if the person is paying rent, owns the house, etc, if the person goes to the cops and says you committed domestic violence against them they will get to stay in your home while you have to stay 500 feet or more away. No questions asked.  You can start eviction proceedings of your own once you get out of jail but that process, unlike falsely accusing somebody of committing DV, takes time.

Once this first appearance hearing is done you will get a new court date for arraignment.  At this hearing the prosecutor will announce whether the State is bringing formal charges against you.  If the prosecution files charges against you, your lawyer will receive discovery, and ask for a trial date.  Trial dates are usually set thirty to forty five days from arraignment.  Between arraignment and trial your lawyer should conduct discovery, investigate the case, and prepare the case for trial.

If you are currently facing a troubling domestic violence charge and would like some guidance navigating the system feel free to contact us.  We are available to assist you with getting through this unfortunate situation.

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