Stephen G. Cobb - Florida Criminal Defense Lawyer

Client Education Series What Is The Difference In Procedure With Felony Court And Misdemeanor Cases


Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Now, we have covered court procedure as part of this client education series for misdemeanor cases and misdemeanor violation of probation cases. Much of what happens in misdemeanor cases is similar in felony cases except there are some very specific differences. For example, in misdemeanor cases, we can do a written plea in absentia, meaning that a case settles, perhaps the charge is reduced from, say, a DUI that is enhanced to a lower level DUI or it is substituted for a reckless driving charge, we can do all of that with paper and you do not have to go to court. The key difference with felony court, we cannot do that.

So, in felony court, you are going to have to go to court at least one time and sometimes more. Now, let’s talk a little bit more about felony court procedure. You still have the first appearance but the moment you say the word “Felony”, you are also adding into the judge’s bond consideration the fact that some felony charges are such that you do not have a right to a bond, or there are notice requirements or other things that affect the bond procedure. So, it is slightly different. Additionally, you are also going to have an arraignment in a felony case just like a misdemeanor case but unless it is a juvenile case, we can waive your appearance at arraignment because who wants to stand in front of 200+ people hearing the prosecutor bellow out what someone is charged with and then the judge is staring the person down going, “How do you plead?” I mean if co-counselor, I am there with you, you will hear us speak for five seconds, long enough to say “Not guilty, trial by jury”, that is it. And you might have sat around the courthouse for 2, 4, 6 hours in some jurisdictions. My secretary tells me stories where when she was with another firm that the lawyers would sit outside of the court waiting their turn all day and not even get to speak in court.

Talk about setting your time on fire, well we do not want to set your time on fire so in felony cases, we are probably going to do a waiver of arraignment so that you do not have to go to that court date. And in felony arraignment, bond issues are very, very, very rarely dealt with. So, keep that in mind because a lot of times, people have a belief in their head that, “I have court coming up, we will handle it then”. Nope, not always. Sometimes, we would be able to handle a bond matter at the arraignment in your case just to answer you do not want to hear, “Maybe”, “I don’t know” and that is because we need more information. We need to know what judge, what their policy is etc., what the issue is because that can make a difference even if the judge will hear bond issues. So, communicate with us. And if you have an issue that needs to be handled quickly, we will do everything we can to speed up the process.

After the arraignment, as we are getting fact pattern reports from you and we are doing our research and we are analyzing the case and talking to the prosecutor about their charging decisions and things of this nature because that is the standard stuff that happens behind the scenes that you do not see. As we are doing this, we may need additional motion hearings. And in felony cases, not all judges do this but there is pre-trial conference or calendar status management. It is going to take a moment to explain. Pre-trial can be done in court and judges who do pre-trial in court usually have the setup for taking a plea of no contest or guilty. Someone can settle their court in open court at pre-trial in some jurisdictions. For example, in Walton County, done all the time. So, that would be an example of where pre-trial is actually a docket day. Docket means the list of cases and docket day is the fish or cut bait day after pre-trial where it is the last time to change a plea from not guilty to no contest or guilty.

From there, you have the trial. A case either goes to a jury trial or very, very rarely a bench trial without a jury. Now, generally speaking, we set all cases for jury trial. However, if it is a mental health defense case involving not guilty by reason of insanity and it is very clear the defendant is legally insane, they have been evaluated by more than one specialist who has stated this person is insane, in that case, instead of going to a jury and presenting all this evidence and taking hours or days, we can literally conduct a trial in under a minute and you are probably thinking, “What?” It is very, very, very rarely done but I do a lot of mental health defense because of the brain imaging we do. And basically, in that scenario, what we give them a script, we give the judges script, I would have a script. What happens is the state will enter the police reports and we will not object. They will not call a single witness, they will rest their case, no argument.

Next, what we do is we enter the doctor’s reports. We do not put on any other evidence, make no argument, we rest our case. The judge finds the defendant not guilty by reason of insanity in this bench trial without a jury. The judge then has three choices. Choice number one, let the person go because they are not guilty by reason of insanity with no follow-up aftercare, mental health treatment or anything. How often do you think that happens? Not in my career one time and I do not think it is going to happen any time in the near future. The judge has two other choices. What are those? Choice number one, send the person to the state hospital so that they can create a treatment plan and release that person when they are able to take care of themselves and not a danger to themselves or other people. So, that is an option that the judge has.

The third one, the third option, the one we prefer is where a treatment plan has already been prepared, our client is out on bond, they are responding to treatment, they are not a danger to themselves, they are not a danger to other people and then what happens is the judge finds them not guilty by reason of insanity, does that third option and requires that they follow the treatment plan. And then, for a period of years, they will be under court supervision. If that person stops taking their medicine and does not comply, then that person will be put into secured custody to make sure that they receive the treatment so that they are not a danger to themselves or others. So, that is the basic procedure of felony court.

And when it comes to sentencing hearings, we still have sentencing hearings. For example, the state may agree to drop some charges but not others in exchange for a plea. They may want prison time, we think probation is appropriate with mental health treatment, we have done a brain imaging evaluation, so in that case, we have a sentencing hearing. Now, maybe the doctor will testify remotely and telephonically, like you saw me do court earlier. They will have to be sworn in by a court reporter in that jurisdiction, or if the parties cannot agree to telephonic testimony, then the doctor has to be physically present in court and then we will ask questions and we have to establish certain things legally. And then, at the end of that, the judge will make a decision. Not all sentencing hearings involve brain imaging. There are 11 different grounds, at the current time, for departure sentence under rule 3.992(b). Points are calculated under 3.992(a) and even if someone does nots core above the magic number of 44, above 44 points, the judge must impose prison unless there is a departure ground found.

Well, what if someone scores 38 points? Well, the judge does not have, by mandatory rule, to sentence them to prison unless there is a departure ground shown. Instead, what happens is the judge can sentence them to prison and the state may be asking for prison. In those cases where brain imaging is not appropriate, we will do other things to indicate that the judge should sentence the person to something other than prison. So, that is the basics of felony court procedure. There may be some wrinkles, additions, deletions or modifications in the case that you may have or someone you love may have. And along the way, we will keep you fully informed about the entire process.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Related Videos

Misdemeanor Court
Client Education
Client Education Series Introduction
Stephen G. Cobb, Esq.

Get your questions answered - call me for your free, 20 min phone consultation (850) 466-1522