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 times. 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.
WHAT IS A DISCOVERY STATE?
When you have a discovery state, you really don’t need preliminary hearing to gather evidence in the form of testimony. In states that are not discovery states, quite routinely criminal defense lawyers will challenge probable cause and invoke preliminary hearings, which require the state 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. The other scenario where you have a preliminary hearing is simply this.
Preliminary Hearing Situation
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 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.
What Are The Benefits Of Plea Bargaining From A Defense Standpoint?
There are more benefits to the prosecutor when it comes to plea bargaining because Florida criminal law is rigged. No one wants to hear that—they want to hear a lot of positive upbeat talk about truth, justice, and the American way. Yet at the present time, we all know that law is applied political power. When you have authoritarian legislators determined to tell people how to live their lives, what to do, and when to do it, you have a system that is set up so that it’s rigged in favor of the state. To begin with, I think the state has more benefits in plea bargaining because there are many scenarios where they will simply say if your client doesn’t like the plea offer, then they can take it to trial or take their chances with the jury. What that translates into is that your standard third degree felony has so much pain associated with it, someone can be in the position of looking at a sentence for 12 months in the Department of Corrections as a first offender. If they lose, they can get up to 5 years.
However, there are benefits for a defendant when it comes to plea bargaining, provided that the legal team knows what they are doing and has sufficient experience in plea bargaining using their creativity, knowledge of the law, and skill at the highest level. For example, if it’s possible to arrange a negotiated dismissal without conditions or as few conditions as possible, that’s a whole lot better than accepting a sentence of probation, which may be the first offer that a prosecutor makes. One of the things you will never see is plea bargaining at arraignment, which in some counties, they call plea day. Arraignment is the proceeding that occurs after a person is released from jail, if they make bond when they have been arrested. Sometimes, people think that first court date is a trial, but the real purpose of it is for the State Attorney to have had enough time to review the case file and to create a charging document called the Information of Indictment.
At that court date, the State Attorney will announce the charge. If it’s a misdemeanor case, the judge will accept pleas of no contest or guilty, and set the people on the spot. This is where the prosecutor has the most leverage, and the defendant has no benefit of plea bargaining at all. Generally speaking, the least favorable deals are offered at arraignment court. In other words, when somebody decides to go to court and represent him or herself, and try to talk to the prosecutor or throw him or herself on the mercy of the court, they have the highest risk possible, because they don’t have skilled legal counsel to help them. A brand new Assistant State Attorney has at least three years of law school under their belt, so if it comes down to it, they know without a doubt that they have more skill, even if it’s their first day on the job, should an unrepresented defendant decide to go to trial. The same is true with plea bargaining. They have more skill based on their training than a defendant does.
The prosecutor that a defendant would be talking to has talked to hundreds, if not thousands, of defendants, and knows how to sell an unfavorable sentence like it’s the greatest thing since the invention of sliced bread. With skilled legal counsel, and especially when you’re using a legal team, different techniques can be used to influence the prosecutor’s beliefs regarding the strength of the case, whether or not the time invested will be worth the result obtained, and numerous other factors. When it comes to a skilled legal team being involved, they are going to have a better handle on what types of creative, alternative and other suggestions can be made, rather than what the prosecutor may be inclined to offer. Finally, there is the reality that the plea offer given to a skilled defense attorney, even if it’s a first offer, subject to revision later, is going to be far better than one given to an unrepresented person on the courthouse steps at arraignment.
Therefore, one of the wisest things someone can do if they want a plea bargain is, just as no one would operate on their own heart after a heart attack, or on their own brain after a stroke, no one should perform legal surgery on their life. They should instead get the best possible board certified specialist to lead their defense team and to lead the negotiations because that’s where you’re going to have the highest degree of likelihood of success. With proper knowledge of how the system works and a great deal of experience in negotiating cases, they can make a big difference in the outcome, and impact a criminal defendant’s life for the entirety of the rest of it.
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.
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