Frequently Asked Questions About Florida Criminal Defense
Many of those charged with a crime in Florida have little experience with the law, and they naturally have many questions. From information about how the local legal system works to the possible consequences of your charge, find answers to many common questions here.
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Am I eligible to expunge my record?
If you have no prior convictions (adjudicated guilty) and your case was dismissed (nolle prosequi) then you should be eligible to expunge your record of the criminal charges against you.
Am I eligible to seal my record?
If you have no prior convictions (adjudicated guilty) and you received a withhold of adjudication on this case and are finished with the sentence then you may be eligible to seal your record. There are a number of “disqualifying offenses” such as Arson, Aggravated Assault, Aggravated Battery, Child Abuse, Elder Abuse, Kidnapping, Manslaughter, Sexual Battery, Robbery, Carjacking, Burglary of a Dwelling, Stalking and Domestic Violence. Even if you receive a withhold of adjudication on these charges you still will not be able to seal your record.
Often times, I highly skilled criminal defense lawyer can negotiate to lesser charges that are not disqualifying offenses so your record can still be sealed.
I have been arrested several times but have never been convicted of a crime or pled guilty, can I have all the arrest records sealed or expunged?
No. With few exceptions, you can only seal or expunge once in a lifetime. Floridians are at a disadvantage in that Florida does not honor the concept of “innocent until proven guilty.” Even if a jury found you not guilty in every case, in Florida, you can only petition once to seal or expunge in your lifetime unless the court decides that an additional arrest is directly related to the original arrest.
Who qualifies for sealing or expungement?
A person who has NOT been adjudicated guilty (convicted) as an adult, and has not previously sealed or expunged may qualify, but there are many exceptions. There are also certain crimes that cannot legally be sealed from your record but can be expunged under the right circumstances.
What is the benefit of having my record sealed or expunged?
The moment you are arrested (or receive a Notice to Appear in Court) you have a criminal history that is maintained by the Florida Department of Law Enforcement. But when you have your record sealed or expunged, it is no longer a public record:
“A criminal history record ordered expunged (or sealed) that is retained by the department is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and not available to any person or entity except upon order of a court of competent jurisdiction**.”
**This subjects anyone that discloses it to liability. Liability is not automatic but the possibility is usually enough to have most private companies remove the information from their records as well.
What is the difference between sealing and expunging my criminal record?
When a record is sealed, the public will not have access to it through the government databases. That means most employers will not have access to the information. However, city, county, state and federal government and agencies, including the police and military, have a legal right to access criminal history records even if they are sealed. When a record is expunged, agencies that would have access to a sealed record will be able to know that criminal information has been expunged from the record, and would only have access to the record through a court order.
What is an expungement?
Expungement is a court-ordered process in which the legal record of an arrest or a criminal conviction is erased in the eyes of the law and should not appear on a background check.
What’s the difference between a public defender and a private attorney?
The biggest differences are time and resources.
A public defender is employed by the state. They are required to take every case assigned to them. What does that mean? They have a HUGE caseload. They might be assigned to upwards of 200 cases at a time. And the more cases they have, the less time they are going to spend on yours. They might miss a critical element just because they’re so bogged down with other cases. Also—a public defender gets paid the same amount no matter how many cases they get stuck with, or how many cases they win/lose. They don’t have the same incentive to help you. They don’t have a business based on referrals.
You want someone who has a long-term interest in your success, and unfortunately, public defenders don’t.
Public defenders also have fewer resources. Their means of helping you are limited by what the state gives them access to. They don’t have an array of superior resources available such as private investigators, the way a private attorney does.
The best legal defenses take time and research. That’s why you are better off going with a private criminal attorney –one who can devote as much time as is necessary to win your case, and who has the resources to get the job done right.
The police didn’t read me my Miranda Rights. What does that mean for my case?
After an arrest a lot of clients will come in telling me that the police didn’t read them their Miranda Rights, and want to know what whether that will help their case. The thing with Miranda Rights is that they don’t kick in right away.
The cops are required by law to read you your Miranda Rights before conducting a “custodial investigation.” What does that mean? It means that you have to be in a situation where: 1) You’re not free to leave, 2) You’re being asked questions by a government agent (a cop), and 3) The questions you’re being asked would get an incriminating response out of you. So if the cops arrest you without asking you any questions, technically they don’t have to read you your Miranda Rights.
Now, of course there are times when the cops don’t read your Miranda Rights when they’re supposed to, and that’s another reason why you need an attorney. An attorney will tell you when you’re rights have been violated based on the information you provide.
I got a call from a police officer wanting to talk about a situation, what do I do?
If the police are calling wanting to talk to you about a situation, you want to call a criminal lawyer right away. I get this question very often, and no matter how friendly the officer may sound on the phone I cannot stress enough that you DO NOT WANT TO SPEAK WITH THEM. Don’t call them back until you have an attorney.
Whatever they say will be used against you. And they will use tactics to get information out of you.
For example, let’s say the cops call you regarding a domestic violence charge and you say “Yeah, I was there but he/she is making it all up to get custody of the kids.” This does way more damage then you think.
Your first mistake is that you just admitted you were there. The prosecution is required to prove that you were at the scene of the crime in every single case and you just did their job for them.
Your second mistake is that you just limited your defense. Stand Your Ground and self-defense laws in Florida are very defendant-friendly, but based on what you said to the cop they are no longer applicable to your case.
It’s impossible to know you’re making these critical mistakes if you don’t know the ins and outs of the law. That’s why your absolute best bet in this situation is to call and attorney. A good criminal defense attorney will make sure the police don’t trick you into giving up important information that will hurt you. Also – anything your lawyer says to the cops CAN’T be used against you.
We can advocate on your behalf. In some cases I’ve been able to convince the officer to close out a case as unfounded without an arrest.
Can I represent myself?
You can represent yourself, but I wouldn’t recommend it. The legal system can be very complicated to navigate. There are all sorts of documents that need to be filed, and court and criminal procedures in place that you need to comply with. It’s not something you learn overnight, and you don’t want to let lack of knowledge, or failure to comply with a simple procedural rule hurt your case in any way. Good attorneys undergo years of training and experience. Through this experience we have acquired the tools and resources you need to best defend your case. Schedule a complimentary strategy session with my firm and we’ll go through your case with you to help you figure out the best way forward.
How do I choose the right criminal attorney?
There are two key factors to focus on: rating and reviews. Reading about the experiences of former clients will give you a good idea of who the attorney is, how well he treats his clients, and how he handles his cases. I recommend using Avvo.com, which is an excellent attorney directory. Google is also a great source for local reviews.
Once you’ve found a couple of highly rated attorneys in your area, definitely set up an initial consultation to discuss your case. During this consultation the lawyer should be focused on educating you about the process and coming up with a solid plan of attack for your defense.
*THERE SHOULDN’T BE ANYTHING HIDING BEHIND THE CURTAIN. THE BEST LAWYERS WILL LAY OUT THE FULL PLAN OF ATTACK RIGHT AWAY INSTEAD OF GIVING YOU A SLIVER OF INFO AND PRESSURING YOU INTO HIRING THEM ON THE SPOT.