Frequently Asked Questions


 

Criminal Law

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What is the difference between a misdemeanor and a felony?

A misdemeanor is less severe than a felony. A first-degree misdemeanor is punishable by up to 1 year in jail, a third-degree felony is punishable by up to 5 years in prison. Misdemeanors can be second or first degree and felonies can be third, second- or first-degree felonies and can be punishable by life or capital offenses.

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What is a score sheet?

The state of Florida keeps track of your criminal history by a number system and tallies that up on what is called a score sheet. Score sheets are applicable only in felony court and when you have accumulated a total of 44 or more points on your score sheet you are facing mandatory prison time unless you are given a downward departure. Certain charges, depending on the level and severity, can themselves score you more than 44 points.

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I was arrested and was not read my Miranda warnings. Were my rights violated?

Being arrested in itself does not require that Miranda warnings be given. For example, if law enforcement never questioned you and/or you never made any statements, then no rights were violated. The police must read the Miranda warnings before they interrogate someone suspected of a crime. You are never required to speak to law enforcement, and it is always best to not make any statements, either voluntary or in response to an interrogation. If law enforcement does not read Miranda warnings to someone, this is a violation of a person’s 6th Amendment rights requiring the statements made to be excluded at trial.

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Do the police always need a warrant to conduct a search?

No, there are several exceptions that allow the police to conduct a search without a warrant. These may include valid consent by an occupant of the property, evidence that is in plain view, an exigent circumstance, or searches incident to an arrest.

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Law enforcement conducted a search of my residence with a warrant. Was the warrant issued valid?

A search warrant needs to be executed by a Judge after the Judge reviews the warrant and determines there is probable cause for the issuance of the warrant. The warrant should state the premises that the search should be conducted on, the reasons for the search and what law enforcement suspect that they will find. If any of the above requirements are not met, you may be able to attack the warrant.

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I did not give my consent to law enforcement to search my property and they did anyways. Was the search illegal?

If law enforcement is alleging that consent was given, the consent must be freely and voluntary given.

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What is a motion to suppress?

A motion to suppress is filed by a defendant when the defendant believes his or her constitutional rights have been violated. If the government violates a person’s rights and subsequently discovers evidence, then that evidence cannot be used against the defendant because it was obtained illegally. A motion to suppress is requesting that a Judge bar use of any illegally obtained evidence at trial. Without this evidence the hope is that the State will be unable to pursue the charges against the defendant or that it will be more difficult to pursue charges against the defendant if the Motion to Suppress is granted.

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Can I be charged with a crime without being arrested?

A police officer sometimes will issue a notice to appear in a misdemeanor case. This does not mean that the charge is any less serious. Law enforcement has the right to forgo an arrest on certain charges in certain circumstances. It is particularly important that you fully understand what you are charged with and the maximum sanctions that the charge can subject you to.

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What are standards of proof?

The standard of proof is the legal standard that must be met to prove a case against someone.  The standards of proof are as follows, and in order of the lowest standard to the highest standard:

  1. Reasonable suspicion
  2. Probable cause
  3. Preponderance of the evidence
  4. Clear and convincing evidence
  5. Beyond a reasonable doubt
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What is probable cause?

This is one of the lowest standards of proof and it is required prior to law enforcement arresting someone. Essentially it means based on the evidence that law enforcement has gathered, they believe the person probably committed the crime. The probable cause standard does not require proof beyond a reasonable doubt. It is more than a reasonable suspicion, but it is often considered to be less than the preponderance of the evidence standard in civil court. The preponderance of the evidence standard means that a fact is more likely than not to be true. Thus, probable cause is not as “probable” as it sounds.

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I cannot afford bond (bail). Am I able to reduce it?

If a defendant cannot afford bond, they could go into Court and ask the Judge for a bond reduction. A Judge will look at various factors to determine if a defendant is permitted to have their bond reduced. Some of the factors are ties to the community, criminal records, danger to the community and their history of failing to appear in Court.

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What are the different outcomes if I am charged with a crime?

  1. The case is dismissed
  2. The charge is reduced to a lesser charge
  3. The defendant enters a plea to the case as charged
  4. The defendant enters into a diversionary program
  5. The defendant takes the case to trial
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What do I need to be concerned with when entering a plea to a charge?

Certain charges/dispositions can trigger the following repercussions:

  1. Prison or jail
  2. driver’s license suspensions
  3. Making subsequent charge enhancable
  4. probation
  5. classes/fines
  6. revocation of civil rights, including a right to carry firearms and vote

Talk to your lawyer and make sure you are aware of the full implications of any plea you are entering.

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Do I need a lawyer even if the prosecution offers a plea bargain that I think is a good deal?

Yes, Even if the prosecution offers a standard plea bargain for a certain type of crime, you should discuss your situation with a lawyer. Reports that the prosecution offers standard plea bargains may or may not be true, so you may want to benefit from an attorney’s knowledge of the system. Also, you may not be right in assuming that you are better off entering a plea. An attorney may be able to identify a defense of which you may not have been aware. Retaining a lawyer may convince the prosecution to give you a better plea deal. At the very least, the attorney can help you make sure that you meet any conditions or requirements imposed by the court.

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Is a public defender a real lawyer? Should I hire a private lawyer?

A public defender is a licensed attorney and holds the same license as a private lawyer. The constitution says that every person has the right to be represented in a criminal matter, so the public defender’s office is appointed to indigent defendants who cannot afford representation. Public Defenders are just like any group of lawyers, or any other profession for that matter: they range from poor attorneys to great ones. Public defenders have many cases and do not have the time to devote to their clients like private attorneys do. If you have the funds to hire a private criminal lawyer, you should do so.

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Should I tell my lawyer the truth, even if I may be guilty? Does that mean I should not take my case to trial?

“Guilty” is a determination made by a jury or Judge. That being said, if you actually did commit the crime that the State is accusing you of, and your lawyer asks you what happened, you should be honest with your lawyer and tell her all the relevant details surrounding your arrest. You may still have legal defenses, evidentiary issues, or burden of proof issues that could help a lead to a better outcome for your case. Further, even if you and your lawyer determine it is best to go to trial, all defendants have the right to go to trial whether or not they committed a crime. The constitution says that since the State is bringing the charges against a Defendant, the State has the burden of proof and the State MUST prove that the Defendant committed the crime beyond a reasonable doubt. This right It is a constitutional right that EVERY citizen has, not just a citizen that asserts their innocence.

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What happens if I violate my probation?

If you are on probation and you violate, there could be serious repercussions. Anytime you are charged with violation of probation (VOP) and the state proves this violation, you are subject to receive the maximum sentence for your charge minus any credit for time served. The standard of proof for a VOP is preponderance of the evidence which is much lower than the beyond a reasonable doubt standard that attaches to the initial criminal charge. A VOP must me material and willful. Your lawyer will help you craft any defenses that you have to your VOP and/or help argue any mitigating factors available to you.

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Can I get my record expunged or sealed?

Depending on the disposition of your case, you may be able to get your matter sealed or expunged. You cannot have any convictions on your record, any prior expungements or sealings and you can only expunge or seal your record one time. A lawyer can review your specific case and advise you if you are eligible to have your record sealed or expunged.

Family Law

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I have been served with a divorce or paternity papers or I would like to serve the other party with one. Do I need an attorney?

It ordinarily is a good idea to seek legal representation. A lawyer knows the applicable standard of law, most likely is familiar with your Judge and may even have worked with the opposing party’s attorney. Family attorneys use their experience and legal knowledge to formulate a strategy for your case advocate for you and your objectives. A person is permitted to represent themselves. However, hiring a lawyer is no different from hiring any other profession that requires skill and a license: a cosmetologist, electrician, or doctor. You could attempt to cut your own hair, rewire your house, or perform a medical procedure on yourself, but odds are that you complete the task poorly if at all and there could be devastating consequences. An experienced family law attorney is most often times the only shield standing between you and a challenging legal dispute and is the most formidable advocate to promote your interests

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What are the legal grounds for obtaining a divorce?

Florida is a no-fault state and thus “irreconcilable differences,” is the only thing a party needs to allege to get a divorce. One party may request that the Court order the parties to counseling, but if the parties attend counseling and one spouse still wants a divorce, then they are legally permitted to get a divorce.

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Who determines how assets and debts are divided in a divorce?

Florida law distributes marital property and liabilities pursuant to “equitable distribution,” which means that generally the court will view each spouses interest in the marriage equally and that assets and debts will be split 50-50. There may be times that a court finds it just to inequitably divide assets or debts. Florida law contains instances where one party may be entitled to more than a 50% interest in marital assets and your lawyer can argue this if it is applicable to your case.

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How do courts determine who gets timesharing with children in a divorce?

Instead of the word “custody” Florida now uses the word “timesharing”. Timesharing describes how many overnights each parent has with the child(ren) based on a percentage [ie 50/50 timeshare would mean each parent has an equal number of overnights per year with the child(ren)]. Florida Statute Section 61.13 set forth the factors that a Court should evaluate in determining each parents’ timesharing with the child or children in common to the parents. If the parents cannot agree a parenting plan, then Courts will evaluate the statutory factors and determine timeshare based on the best interests of the child(ren).

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What is parental responsibility?

Parental responsibility governs the major decisions affecting the child, which can include school, health care, and religious training. Florida law states that both parents will share parental responsibility unless it is detrimental for a child for the parents to share. In the case of a detriment to a child, then one parent will have sole parental responsibility and make the major decisions for the child(ren)

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How is child support determined in a divorce or child support case?

Child support guidelines determine which parent owes child support and how much child support they will owe. The guidelines are based on the parents’ net income and take into consideration: health care costs for the child(ren), childcare costs for the child(ren), and number of overnights that each parent have the child(ren).

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I believe the other parent quit their job or is not working so they can avoid paying me child support. What can I do?

If a parent is intentionally not working or is working at less than he or she is capable of earning, the court can “impute income,” which means setting support based upon what the parent is capable of earning rather than actual earnings. This requires evidence that the parent is voluntarily unemployed or voluntarily underemployed, which your attorney can present to the Court so that child support guidelines can be run on an income different than what the parent is currently earning.

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What happens if a parent does not pay court-ordered child support?

The Court has the power to hold a party in contempt for violating a court order. The Court can impose a wide array of sanctions, including fines, attorney’s fees, issuing income withholding orders and even jail.

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Will I be required to pay alimony? Am I entitled to receive alimony?

Both questions require an analysis of both party’s financial situation, as a marital unit and with each person’s respective employment or lack thereof. The first questions that need to be answered in determining if alimony will be awarded to a party is 1) does the person requesting alimony have a need for alimony i.e. Does that party require financial assistance in order to pay their monthly bills? and 2) does the person that would be paying alimony have an ability to pay the alimony i.e. Do they have funds left over at the end of the month that could be allocated to pay the other party alimony? If both questions are answered yes, then an analysis of the statutory factors will determine how much alimony one party will pay to the other. This is a multi-faceted process and the arguments can be incredibly detailed. The initial questions may appear simple, but they are not. For example, one party may argue need because their bills are higher than their income, while the other party may argue there is no need and offer evidence that the requesting party’s bills are inflated.

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I have a final judgment on a case that has been closed. I want to change my court ordered child support, alimony, or timesharing. Is this possible?

The law permits a family law case to be reopened in order to modify a final judgment if there is a substantial change in circumstance. This has to be material, unforeseeable and permanent. In addition, as with all family law cases, if there are children involved, it has to be in the best interest of the child(ren). This is a high standard to meet, but it is possible and happens often. Further, if you are unable to modify the final judgment right away, circumstances may warrant judicial interference by way of a parenting coordinator, counseling, a guardian ad litem or other means. If there are legitimate concerns, especially with the care of the children, relief is most often available to you and if the concerns are serious, a lawyer can advise you of what to do and file an Emergency Motion if it is warranted.

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Do grandparents have visitation rights to their grandchildren?

Grandparents rights, other than those that have temporary (or permanent) custody of a child(ren) due to a dependency court or another family court order, are very limited.