An arrest of a criminal suspect is just that – an arrest. It does not mean you have been formally charged by the State Attorney’s Office or convicted for that matter. It just means that the arresting officer is of the opinion that there is probable cause to arrest you for the charge. That is not to say that it is an insignificant event. It is significant and important. An arrest is usually the beginning of the criminal process. However, it is also an opportunity for the arrestee. So don’t miss it.

After an arrest, within the next several weeks a prosecutor will be evaluating the facts, circumstances, and evidence of your case to determine whether a formal charge will or should be filed. The prosecutor has broad discretion to choose to file or not file a formal charge during this time. The prosecutor also has the discretion to choose to file a different or lesser formal charge from that with which you were arrested. This process usually takes approximately four to six weeks after an arrest is made. It is at this time that your criminal defense attorney can speak with the prosecutor and provide him with information that can be used to determine that a formal criminal charge should not be filed against you; or that some lesser charge is more appropriate. Perhaps it is your first brush with the law and you are remorseful. Maybe the victim does not want to prosecute you. Is there even enough evidence to gain a conviction? Are there conflicting statements as to what actually happened? This is the time to get the ear of the prosecutor. Don’t roll the dice and hope that your case falls through the cracks. They don’t. Be proactive during this time. It may be your best and only opportunity to get your case dropped. Once that filing decision is made; it is much more difficult to get the State to change their minds.

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An arrest of a criminal suspect is just that – an arrest. It does not mean you have been formally charged by the State Attorney’s Office or convicted for that matter. It just means that the arresting officer is of the opinion that there is probable cause to arrest you for the charge. That is not to say that it is an insignificant event. It is significant and important. An arrest is usually the beginning of the criminal process. However, it is also an opportunity for the arrestee. So don’t miss it.

After an arrest, within the next several weeks a prosecutor will be evaluating the facts, circumstances, and evidence of your case to determine whether a formal charge will or should be filed. The prosecutor has broad discretion to choose to file or not file a formal charge during this time. The prosecutor also has the discretion to choose to file a different or lesser formal charge from that with which you were arrested. This process usually takes approximately four to six weeks after an arrest is made. It is at this time that your attorney can speak with the prosecutor and provide him with information that can be used to determine that a formal criminal charge should not be filed against you; or that some lesser charge is more appropriate. Perhaps it is your first brush with the law and you are remorseful. Maybe the victim does not want to prosecute you. Is there even enough evidence to gain a conviction? Are there conflicting statements as to what actually happened? This is the time to get the ear of the prosecutor. Don’t roll the dice and hope that your case falls through the cracks. They don’t. Be proactive during this time. It may be your best and only opportunity to get your case dropped. Once that filing decision is made, it is much more difficult to get the State to change their minds.

Florida Law specifically states that domestic violence shall be treated as a criminal act rather than a private matter. As a result, there is a pro-prosecution mentality even if the alleged victim does not want to cooperate in the prosecution. The reasoning behind this position is the State’s public interest in “protecting” the victim of domestic violence. What if the victim does not want to cooperate with the prosecution of the case? Can the State Attorney’s Office proceed with the case? The short answer is yes.

State v. The Defendant
The charging document setting forth the criminal allegations will read that the State of Florida is prosecuting the crime. It is not the victim versus the defendant. Therefore, if the State Attorney’s Office elects to prosecute the crime, often times it is against the wishes of the victim.

Independent Witnesses and Evidence
If the State Attorney’s Office does not receive cooperation from the victim, it can proceed with testimony from other witnesses who may have seen the incident or heard statements of the defendant or victim; or they may use additional independent or corroborative evidence to prosecute the case. Evidence such as 911 tapes, photographs, or other forensic evidence is frequently used.

State Attorneys Office may subpoena the non-cooperating victim to testify against their wishes
Depending on the facts of the case, the State Attorney’s Office may decide that even though the victim doesn’t want to testify, they are going to compel the victim’s testimony through the use of a court ordered subpoena. Once served, if the victim fails to appear or refuses to testify, they could be facing a jail sentence or other sanctions.

Fifth Amendment Privilege to refuse to testify generally doesn’t apply to the victims of domestic violence
As a general rule, if you are the victim of a crime you cannot refuse to testify on the basis of the Fifth Amendment. That privilege is invoked when someone is facing a criminal charge. (There may be exceptions that apply. You should consult a lawyer to discuss them).

Husband-Wife Privilege Does Not Apply
In the State of Florida, Husband-Wife Privilege only applies towards communications which were intended to be made in confidence between the spouses. However, Florida law specifically states that there is NO Husband-Wife Privilege when one spouse is charged with committing a crime against the other spouse. This privilege does NOT apply towards observations made by the victim spouse.

Recanting Victim Testimony
If the non-cooperating victim believes that lying or changing their story is the best course of action, they may want to think twice about that. The victim can very easily go from a situation where they are truly the victim to a situation where they are now a criminal defendant themselves. A victim lying to law enforcement or the State Attorney’s Office can lead to many problems. The victim could be charged with perjury, obstruction of justice, filing a false police report, or be held in contempt of court.

The Defendant and the Recanting Victim or Witness
Another significant problem that could develop is when the defendant encourages the victim or a witness for that matter to testify untruthfully. If this information comes to the attention of law enforcement, the defendant could be charged with additional crimes such as Witness Tampering. The State Attorney’s Office would surely bring this information to the attention of a jury; arguing that it showed the guilty conscience of the defendant.

Conclusion
Domestic violence cases can lead to significant legal issues and problems for both the victim and defendant. You are urged to consult with an attorney to discuss these issues as soon as possible.

DRUG POSSESSION DEFENSES

February 10, 2011

Whenever a person is charged with the crime of illegally possessing a drug or narcotic, by their very nature, these cases give rise to numerous issues relating to whether the evidence was obtained by law enforcement in violation of a person’s 4th Amendment Protections against unreasonable searches and seizures as guaranteed by the Bill of Rights to the U.S. Constitution. If law enforcement violates the law with respect to an unreasonable search and seizure contrary to the 4th Amendment, a person accused of a crime can file a Motion to Suppress evidence. If the Court rules that law enforcement seized the evidence illegally; then the evidence is suppressed. It cannot be used against the accused in their trial. In addition to 4th Amendment Search and Seizure issues, a person charged with illegally possessing a drug may also have other legal defenses which, if raised, may make it difficult for the prosecution to gain a conviction. Therefore, just because you are arrested and charged with illegally possessing a drug, it does not mean that you will be found guilty. Your Criminal Defense Attorney will be able to review the facts of your case and determine if you may have certain legal defenses such as:

• Was the initial stop by law enforcement conducted illegally?
• Was the subsequent search of the drugs or paraphernalia conducted illegally?
• Were any statements obtained by law enforcement in violation of your
Miranda Rights?
• Were there drugs or paraphernalia in your constructive possession only?
• Were there any legal defects in the warrant used to search your
home, apartment, or automobile?
• Is there an entrapment defense?
• Is there an alibi defense?
• Is there an identity defense?

A thorough analysis of the facts is needed to determine whether any of the above defenses or others may be viable in your case. Contact the Law Office of Joseph Montrone, Jr. for a free consultation 727-538-4155.