If a charge is dismissed at the preliminary hearing, then it's the end of that particular charge, but a case may have multiple charges. I've had many cases where someone was charged with three counts or more yet, by the time first appearance was over, one or two of those counts were gone. The case kept going even though one or two of the charges were found by the judge to lack probable cause. In these cases, later on, the State Attorney elected not to try and even file criminal charges with the formal Information of Indictment.

In Florida, generally, when you are talking about preliminary hearing, there are two types. First, there is a contested adversarial probable cause hearing, and in the course of my career, I've only done one. Why? As long as the time limits are complied with, there is no right to an adversarial probable cause hearing in Florida, because Florida is a discovery state.

The second type of probable cause hearing happens every day across the state: a nonadversarial probable cause hearing where if the parties object, the judge will set or order counsel to set a contested adversarial probable cause hearing. Now, if all of the arguing in the world will not change the judge's mind, then the judge may dismiss anyway but this is so rare I hesitate to even bring it up.

What is a Discovery State?

When you have a discovery state, you really don't need preliminary hearings to gather evidence in the form of testimony: a defense lawyer simply files a Notice of Discovery.

In states that are not discovery states, criminal defense lawyers will challenge probable cause and invoke preliminary hearings because this is the only way to get pretrial discovery. These hearings provide evidence as the state is required to put on evidence and testimony in order to establish a probable cause. 

The defense lawyer goes into this hearing fully knowing that it is highly unlikely that they will win across the board, even if they manage to knock out a count or two. Nevertheless, in those jurisdictions, that type of strategy is very important for the gathering of evidence. In Florida, the use of adversarial probable cause hearing is virtually non-existent.

Preliminary Hearings are by Video Court

The first court date that someone will experience after they have been arrested for a criminal offense within the state of Florida is what we call First Appearance. It's normally done with the client at the jail. While at the jail, the defendant will see a judge on a screen. If they have the defense counsel, which I always recommend, defense counsel will not be visible on the screen, but they will be in the video courtroom. This is the first chance that the defense has to take a look at a probable cause statement, and if somebody has multiple charges that they were arrested for, that is a great time to do a very fast review. This is because you don't have much time to object to the judge finding probable cause on whatever legal grounds are present, to try and get that particular count or charge removed.

In Florida, those are the two basic types of preliminary hearings that you have. If all of the charges are dismissed or there is a finding of no probable cause for all of the charges at first appearance, then in most cases, that is going to be the end of the case, unless the State Attorney, in reviewing the case later, decides to directly file an information of indictment and add an additional charge. This is a very rare scenario, but it has happened.

Generally speaking, it is a good idea to have legal counsel appear at First Appearance because this is the first chance to ask for a bond. When we are contacted by people with investigations pending, we perform a bond interview. It isn't very long but it is very important. 

Bonds have two main components at First Appearance: the money amount of the bond and conditions of bond such as no contact provisions, anti-drug patches and electronic monitors