How to Survive Your Criminal Case in Florida
(part 3 of a 9 part series)
By: Carlton “Duke” Fagan, Esq.
101 Century 21 Drive
Jacksonville, Florida 32216
(904) 733-1234 – Telephone
The Charging Decision
No matter what you may have heard or been told, even by the police, the police CANNOT charge you with a crime. They have the power to arrest you on probable cause for committing a crime but only a State Attorney or a Grand Jury has the power to charge you with a crime. In a few cases, a defendant has been formally charged with a crime by the State Attorney or a Grand Jury prior to being arrested but in the great majority of cases, no formal charges have been filed before a defendant has been arrested.
Generally, during the first two weeks after your arrest, the State Attorney will be reviewing your case file to decide which crime or crimes to charge you with. This is a very important time period in your case as this decision by the State Attorney will determine the seriousness of the crimes and the number of crimes you must defend yourself against in court. The State Attorney has total and absolute power in this decision. He does NOT have to charge you with the crime or crimes for which there was probable cause to arrest you! He can decide to charge you with those crimes or with a more serious crime or with a less serious crime or not to charge you at all. Your lawyer should make every effort to investigate your case early and present evidence to the State Attorney to persuade him to charge you with lesser crimes or not to charge you at all.
A favorable charging decision has a very significant impact on your case as the lower the number of crimes you are charged with and the less severe the crimes you are charged with, the lower the potential penalties you face. Sometimes a favorable charging decision results in your case being dropped! Accordingly, the time between your arrest and a final charging decision is a critical phase of your case. Ask your lawyer if the facts and circumstances of your case present an opportunity for him to influence the charging decision in your case and if so, what is his plan for persuading the State Attorney to make a charging decision more favorable to you.
Unless you are charged with a crime by the filing of an “Information” by the State Attorney or by an “Indictment” from a Grand Jury, you must be released from jail upon the passing of 21 days from your arrest. This time period can be extended up to 40 days upon a showing of good cause to the court by the State Attorney. Unfortunately, you will not be automatically released from jail upon the passing of 21 days if you have not been charged by Information or Indictment. Your lawyer must file and successfully argue a Motion for Discharge before the court to gain your release. If you have been in jail for more than 21 days and you still have not been charged by an Information or Indictment, call your lawyer to find out your status. If you have been formally charged, ask your lawyer to send you a copy of the Information or Indictment that was filed against you.