I Am Being Arrested. What Should I Do?

1. Follow the officer’s legal commands. The officer can arrest you if he has reason to believe that you have broken the law, regardless of whether you did or not. If you resist the officer feeling that you have done nothing wrong, you risk being injured during the arrest and/or being charged with misdemeanor resisting arrest without violence or felony resisting arrest with violence.
2. Do not talk to the officer about any details of the arrest circumstances. Don’t admit or deny anything. You are not required to give more than your name, rank and serial number. Your name, your address and a review of your driver’s license are really all you have to disclose. It should be noted that there are two principal ways that people get convicted in criminal cases: first, the witness statements and evidence, and second, what the defendant admits to Law Enforcement Officers.

How Can I Help My Lawyer Help Me?

After you’ve been arrested, you need to take the following steps to preserve information about your case:

1. Document who witnessed what happened. Get their name, address, phone number and any other contact information.
2. Write a paragraph under each witness’s name of what that witness knows.
3. Include a sentence at the end of each paragraph of how, and if you, the defendant, know the witness.
4. Indicate if you gave any verbal or unwritten statement to the Police.
5. On the next sheet of your summary, describe if and how any of the potential witnesses know each other. The bias of each potential witness should be considered.
6. Describe your prior arrest history and the final result of each arrest.
7. What are you trying to accomplish in your case, given the facts of the case?

Felony Vs. Misdemeanor Cases In Florida

1. MISDEMEANORS: These cases are handled by the county judge in county court. A first degree misdemeanor has a maximum penalty of 11 months and 29 days with a combination of jail and/or probation plus fines and costs. A second degree misdemeanor has a maximum penalty of 60 days jail and 6 months’ probation. There are no guidelines for the county court to follow in sentencing except where a mandatory sentence is prescribed by statute.
2. FELONIES: These cases are the most serious and are heard by the circuit court judge in circuit court. A third degree felony has a possible sentence of 5 years prison and a $5,000 fine. A second degree felony has a possible sentence of 15 years in prison and a $10,000 fine. A first degree felony has a possible sentence of 25 years in prison and a large fine depending on the offense. The circuit court must sign off on a guideline scoresheet at the time of sentencing each defendant. (Scoresheet pursuant to F.R.Cr.P 3.992(a), manual at http://wwwldc.state.fl.us/pub/sen_epcmlindex.html.)

Evidence

The evidence the State might use to try and prove guilt can usually be divided into four types.

1. SCIENTIFIC EVIDENCE: DNA, fingerprint, g.c.m.s. (gas chromatograph mass spectrometer), videotape, blood, breathalyzer, video, photos, digital and emails. This evidence, if gathered, preserved and analyzed properly, can be difficult to overcome.
2. DOCUMENTARY EVIDENCE: Informational/records, written/digital documents, financial records, bank records, tax return information, loan applications, bank deposits/withdrawals, deeds, promissory notes, mortgage notes and public record information.
3. WITNESSES: Individuals who know something about the case. They saw or heard or have knowledge of events by talking to others who were on the scene. Experts with specialized knowledge who are allowed to give their opinion based on scientific conclusions about evidence or facts in the case. Officers investigating the case may be called to testify.
4. DEFENDANTS’ STATEMENTS: Confessions, admissions, custodial statements, media posts, emails, defendant statements to others and written documents created by the defendant. This evidence is also hard to overcome if collected properly. An officer may not promise favorable treatment to secure an incriminating statement from a defendant. Such a statement is inadmissible in court if the lawyer makes a timely objection. See Simon, A Slave v. the State of Florida, Florida Supreme Court (7/25/1853). It should be noted that failure of defense counsel to make a timely objection will waive appellate review of the matter in most cases except jurisdiction issues.

What Can You Do After Being Arrested To Help Your Situation?

1. GET LEGAL REPRESENTATION: Why is it so important to act quickly?
   1. LOST EVIDENCE: Witnesses, evidence and videotape – all will be lost if not located, reviewed and preserved.
   2. PROSECUTOR’S REVIEW: If an attorney immediately approaches the prosecutor, even before the prosecutor has all the evidence to review the case, the prosecutor will often agree to not review the case and come up with a plea offer prior to reviewing evidence the defense counsel may want to informally present.
   3. DEFENDANT’S BEST FOOT FORWARD: A defendant needs to be humanized; prosecutors are human. Evidence of any medical complications to the defendant’s life can be presented. Needed surgeries, pain levels, age issues and mental health can all be considered. Positive accomplishments by the defendant, character letters, proof of full-time employment, a copy of a good driving history and academic/career achievements all may be presented.
   4. PARTICIPATE IN DETERMINING PLEA: Defense counsel may present appropriate suggestions to resolve the case. A defense attorney may offer a reasonable suggestion the prosecutor will agree to.
2. KEEP QUIET ABOUT YOUR CASE: Anything you say to another person could result in the other person being subpoenaed to court to testify under penalty of contempt with jail for refusal. Anything you say to your attorney or their staff is confidential.
3. DON’T MAKE THINGS WORSE: Don’t contact the victim or violate the terms of your bond.
4. STAY OFF FACEBOOK AND DON’T TEXT: Your communications can be used against you.

Resolving Your Case/Options

If you are arrested, your case maybe be resolved in one of the following ways (from the defendant’s best result to the defendant’s worse result):

1. ARRESTED, INFORMATION: Not filed by the State Attorney.
2. ARRESTED, INFORMATION: Filed, but state attorney dismisses.
3. PRETRIAL DIVERSION/PRETRIAL INTERVENTION: Case removed from docket, short period of diversion, case dismissed, no probation.
4. UNSUPERVISED COURT PROBATION: On probation but don’t have to report.
5. REGULAR PROBATION: Report once a month, restrictions on travel, random urine analysis (UA). (Note: If adjudication is withheld, you are eligible to have your record sealed at the successful conclusion of probation; if you are adjudicated guilty, you are not.)
6. COMMUNITY CONTROL/HOUSE ARREST: Report once a week; stay at home unless authorized to be elsewhere.
7. JAIL: Up to 11 months and 29 days possible for each misdemeanor or as a portion of a felony sentence.
8. PRISON:
   1. 3rd Degree Felony up to 5 years in prison
   2. 2nd Degree Felony up to 15 years in prison
   3. 1st Degree Felony up to 25 years in prison

(Currently, inmates in the Department of Corrections (DOC) Florida State Prison are serving 85% of their sentence, assuming good behavior. In 1986 when Mr. Thomas began practicing law in this area inmates were serving 15% of their DOC sentences.)

* Note, community control and DOC Florida State Prison sentences are not imposed in county court misdemeanor cases; only in felony cases are those sentences possible.

On What Does The Prosecution Base Its Plea Offer To You?

There are 3 principal factors that determine what plea offer the state might make:

1. THE FLORIDA SENTENCING GUIDELINE SCORESHEET: The scoresheet is a mathematical calculation whose total points help to determine your sentence. The higher the points, the worse your sentence will be. If you score over 42 points, you presumptively will be receiving a prison sentence. The scoresheet has 4 principal parts: new charge, other current charge(s), victim injury and prior record. A victim who is hurt or a defendant with a bad prior record raises the scoresheet significantly. A blank scoresheet is attached hereto (PDF 1).
2. VICTIM’S INPUT: In cases where a victim is involved, that victim’s input will be strongly considered by the prosecutor. The prosecutor may continue to prosecute even if the victim or the victim’s parents don’t want to go forward. Defendants must be careful not to violate provisions of their bond by not contacting a victim while on bond.
3. SERIOUSNESS OF CRIME: This is the view the prosecution’s office takes of the offense.
4. THE DEFENDANTS UNIQUE CIRCUMSTANCES: Information that may be shown to the prosecutor indicating a defendant is working, paying a mortgage, raising children and acting as a good member of society can also be invaluable.