Unofficial Florida Criminal Law Definitions
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Common Terms Used in the Central Florida Criminal Justice System
The following definitions have been written by attorney Eric J. Dirga, Orlando Criminal Defense Attorney. These are definitions of common usage and not meant to replace the definitions found in dictionaries. These are meant to assist people that find themselves involved in the criminal justice system of Florida. These definitions are based on the experiences of the Orlando Criminal Attorney listed above. This page is continually being updated and revised.
Actual Physical Control of a Vehicle: This term is usually associated with DUIs or Habitual Traffic Offenders. Each of these offenses requires a person to be either driving a vehicle or in actual physical control of a vehicle. Actual physical control means a person is in or near the vehicle and has the ability to operate it. This usually requires the keys to be in the person's possession or readily available. This also means that a person can be charged with drunk driving or driving as a habitual traffic offender without actually driving the car.
Arraignment: After being arrested a person must be arraigned. This means they are brought before a judge and told what charges the State will be attempting to prove against them. This is to ensure that a person is aware of the charges and has the opportunity to defend him or herself. The accused can admit guilt at the arraignment, or enter a plea of not guilty. A plea of not guilty at this stage of the procedure is always a better decision from the stand point of a lawyer.
Arrest: An arrest is typically seen as the act of taking someone to jail but technically it includes the issuance of a summons to appear in court on a criminal matter.
Batterer's Intervention Program: A 26-week counseling program required to be attended by people found guilty of domestic violence or who have a permanent domestic violence injunction issued against them. This program is state licensed and must follow specific requirements.
Bond: Bond is often confused with the term "bail" and with the idea of a monetary amount that must be posted as collateral to be released after being accused and arrested. Actually, bail also refers to other forms of release including non-monetary forms of release.
Case Number: All cases filed with the Clerk of Courts receives a case number for tracking purposes. This includes criminal cases file by the Office of the State Attorney. In Florida there is a uniform case numbering system that indicates the county, the year, the type of case, a unique number, and other county specific designations. A typical case number would look like this, 48-2009-MM-000001-O-XXX.
Certificate of Eligibility
A certificate of eligibility has to do with sealing or expunging a criminal arrest record. It is a document issued by the Florida Department of Law Enforcement that indicates to the court that a person qualifies to have their criminal record sealed or expunged. Without this document a person cannot successfully petition the court to seal or expunge his or her criminal record.
Commercial Drivers License
A commercial drivers license, commonly called a CDL, can be one of several varieties. Each variety allows a person to drive vehicles of larger gross weight and configurations. A CDL holder is restricted in the available "options" if they receive a traffic ticket. For instance, a CDL holder is not eligible to take a driving school unless it is ordered by a judge or hearing officer. Additionally, a CDL can be revoked much easier than a regular drivers license (Class E). Click CDL License for more information regarding commercial drivers licenses.
A form of supervision imposed in lieu of a sentence. It is similar to probation with the added restriction of what is commonly known as house arrest. This form of supervision is extremely onerous and only a fraction of people placed on this actually complete it without violations. The law only allows the court to impose this form of supervision for a maximum of two years at a time.
This is similar to the Department of Corrections however it is at the county level. It is the agency that supervises misdemeanor probationers, conducts pretrial monitoring, and runs misdemeanor diversion programs (among other things).
Court costs in criminal cases are different from other cases. Because we are innocent until proven guilty, such costs are not accessed in criminal cases unless the court finds you guilty. Court costs cannot be waived by the court.
Department of Corrections
The Department of Corrections operates all the prisons (see below) in Florida and supervises all defendants placed on probation or community control. It also runs the felony diversion programs. This is a statewide agency. (http://www.dc.state.fl.us/)
This is where it can get confusing. This is typically a substitute for "pretrial conference." However, sometimes it's an additional court date after a pretrial conference and just before the trial period - a sort of last chance to resolve the case before trial. See Pretrial Conference, below.
"Domestic Violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one 'family or household member' by another 'family or household member.' See "Family or Household Member" below.
A finding of guilt for Domestic Violence will impact your right to bear arms. It is also a deportable offense.
A factual basis is tantamount to the probable cause listed in a law enforcement officer's arrest affidavit. In actuality, it is a listing of the facts the state is prepared to prove if the case had gone to trial. These facts must include evidence establishing all elements of the crime. Court's will ask the prosecutor for a factual basis before accepting a plea of guilty or no contest. It seems to me that if someone enters a plea of no contest and the prosecutor fails to establish every element of the crime in the factual basis the court should dismiss the case. However, that is never done unless the defense files a motion to dismiss.
Family or Household Member
"Family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
This is the legal definition found in the Florida Statutes. This definition seems to exclude roommates and boyfriend/girlfriend situations. However, see 'injunctions.'
A crime that is punishable by incarceration that can extend over 365 days in length. If adjudicated guilty of a felony you will also lose your civil rights such as the ability to vote, bear arms, and hold public office.
Third Degree Felony: Punishable by up to 5 years in prison and $5,000 fine. Not eligible for withhold of adjudication if two prior felony offenses.
Second Degree Felony: Punishable by up to 15 years in prison and $10,000 fine. Not eligible for withhold of adjudication except under special circumstances.
First Degree Felony: Punishable by up to 30 years in prison and $10,000 fine. Not eligible for withhold of adjudication.
Life Felony: Punishable by life in prison and $15,000 fine.
Capital Felony: Punishable by death.
"Firearm" means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a crime.
When a person is arrested the Florida Rule of Criminal Procedure 3.130 requires that the arrested person be brought before a judicial officer within 24 hours. Only the State Attorney's Office and the Public Defender's Office is notified. The Judge will inform the Defendant of the charge and certain Rights. At this time the judge will also determine the conditions of pretrial release.
Under section 776.08 a "Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
All felonies arrests that result in a finding of guilt must be sentenced according to the Criminal Punishment Code's guideline scoresheet. This is a mathematical formula loosely derived from the federal system. The main reason for such guideline sentencing is to make sentences more uniform across the state.
Also known as imprisonment. When you are sentenced you are ordered to spend a specific amount of time in jail or prison and you are thereby incarcerated.
Injunctions are more commonly known as "protective orders" or "restraining orders." These are court orders that restrict a person's access or freedom of movement near another person or a place frequented by a specified person. Violating an injunction can be a criminal offense.
Jail and prison are terms that are often used interchangeably, however there are differences. In Florida jails are county correctional institutions. They house inmates that have been arrested and have not, for whatever reason, bonded out before trial and house inmates that have already been sentenced to terms of incarceration that are less than a year in length.
A juvenile is any person under the age of 18 unless they have been given adult status by a court.
Juvenile Justice System
Juvenile offenders are treated quite differently from adult offenders. The focus for juveniles is rehabilitation while adults face punishment. Because of the different approaches, the juvenile justice system has its own procedure and rules tailored specifically for juvenile offenders.
This is a crime that is punishable by up to a year incarceration depending on the degree. A misdemeanor offense has no impact on your civil rights unless it is charged as domestic violence.
First Degree Misdemeanor: Punishable by up to 365 days in jail and $1,000 fine.
Second Degree Misdemeanor: Punishable by up to 60 days jail and $500 fine.
This is a Latin term that means the Office of the State Attorney, after charging you with an offense, has decided to terminate the prosecution. In other words, the State has dropped your case.
Parole is no longer used in Florida. It was a method of releasing prisoners early for good behavior. Today Florida requires all people sentenced for a crime to serve a minimum of 85% of the sentence. The other 15% is used by county corrections and the Department of Corrections as incentive gain time - a method of releasing prisoners early for good behavior.
When you are accused of a crime you must enter a plea to address the accusation. A plea of NOT GUILTY means you want to challenge the accusation; a plea of NO CONTEST means you are not pleading 'guilty' or 'not guilty' and will let the court decide based on the factual basis presented by the State; a plea of GUILTY means you admit the charges alleged.
The implications of a plea may be far reaching. You should always consult an attorney before entering a plea other than 'not guilty.'
This is a court date that is scheduled after the arraignment and before the trial. It is used by the courts as a method to keep track of cases. At this hearing the main question the court wants to know is whether the case will be set for a plea, continued, or set for trial. It can also be used to address housekeeping issues such as the setting of motions although that should be handled outside of the courtroom. Defendant's presence can be waived at this hearing but it must be in writing and signed by the defendant.
A facility operated and maintained by the Department of Corrections that houses people found guilty of Felony offenses who have been sentenced for over 365 days of incarceration.
Probation is an alternative to being sentenced for committing a crime that you have been found guilty of doing. It is a supervision program run by the Department of Corrections. While on probation you must abide by a list of general conditions. The court may also require you to complete additional conditions called special conditions. If you violate any of the general conditions or special conditions or commit a new law offense your probation will be violated. See "Violation of Probation" below.
A sentence is either a fine, a term of incarceration, or both. After being found guilty of a criminal offense the court can sentence you or place you on a term of supervision such as probation. In technical terms a sentence can only be the fine and/or the term of imprisonment.
A sentence in all felony cases is determined by a mathematical formula used in the guideline scoresheet. Each offense has a sentencing level between 1 and 10 assigned to it. Each level assigns a specific point value to those offenses within that level based on whether they are the primary offense, secondary offense, or prior offense. Using the numerical designations assigned by the sentence level a minimum incarcerative sentence is determined with the mathematical formula used in the scoresheet.
This is heard quite a bit around the courtroom. Speed trial refers to the rule that requires the prosecutor to bring your case to trial within a specified time from the date of your arrest. It use to be that if the prosecutor failed to do that the case was dismissed. Today the rules have changed and the automatic dismissal is no longer available. If the prosecutor fails to abide by the time limit the court gives them and additional amount of time to bring your case to trial.
Statute of Limitations
This is the time frame from the point when a crime occurs to the point in time when the prosecutor can still bring charges against you. This is different from speedy trial. Put a different way, once law enforcement determines that a crime has occurred the state has a specified period of time to charge someone with the offense. Certain offenses such as murder have no limitation on when charges can be brought against someone. Charges that do have limitations have strict cut-off times. After that time has passed the state can no longer charge that crime.
Also known as a traffic ticket. This is a civil violation of the law regarding the operation of motor vehicles. The penalty for a traffic infraction is a fine and points. There are ways to avoid fines and points by either electing a driving school or having a hearing. Attorneys represent many people charged with traffic infractions to keep points off people's records.
In the United States a trial for someone accused of a criminal act is by jury. Our system is a confrontational system with many Rights guaranteed to the accused. The basis for this type of system is the belief that safe-guards are required to protect the people from an oppressive government.
Violation of Probation
A violation of probation occurs when the probationer violates a condition of probation. When this occurs the probation officer will fill out an affidavit stating the conditions that he/she thinks the probationer has violated and sends it to the judge that placed the person on probation. The judge then files a warrant for arrest based on the affidavit. All violations must be willful - this means that the violation was not a mistake or caused by happenstance.
"Weapon" means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.
With Knowledge (regarding a Driving With A Suspended License charge)
This is the criminal infraction. This is the one that will land you in jail. This is the one with a mandatory court appearance. The only way to keep this from counting towards becoming a Habitual Traffic Offender is to have it dismissed or amended to something other than "Driving While License Suspended or Revoked" (with knowledge).
Without Knowledge (regarding a Driving With A Suspended License charge)
These are handed out like any other infraction and usually fool the driver by thinking it is just another ticket. These are the types of "Driving While License Suspended or Revoked" tickets that the DMV sometimes counts towards the 3 within 5 years Habitual Traffic Offender suspension. You obviously do not want the Department of Highway Safety and Motor Vehicles to count these as one of the 3 within 5 years. A dismissal or withhold of the adjudication will keep this type "Driving While License Suspended or Revoked" (without knowledge) ticket from counting towards a 5-year suspension. If you just pay the ticket then the Department of Highway Safety and Motor Vehicles will count this toward a habitual traffic offender suspension.
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