If you have never been arrested before, don't hop on a plane to Mexico just yet. Many cases can be resolved in the defendant's best interest without jail or significant restrictions on liberty. A good lawyer can help you avoid a criminal record, jail, probation, house arrest and significant fines and penalties.
Many things affect what will happen to you and your case. Some of the factors that will determine what happens to you and your criminal case are:
1) your prior criminal record
2) the weight of the evidence against you
3) your version of what happened. Do you have any witnesses?
4) what crime you charged with? Misdemeanor or Felony?
5) what judge your case is assigned to
6) the prosecutor assigned to your case
7) what lawyer you hire
8) the decisions you make once you have consulted with an attorney.
The only thing you can control is the lawyer you hire.
Some factors you should consider when determining if a particular Miami criminal lawyer is right for you are:
a) Your attorney should practice exclusively criminal law.
b) The lawyer should be either a former State Attorney or a former Public Defender.
c) Your attorney should have significant trial experience
d) The lawyer should have a good reputation or good working relationship with either the judge or the State attorney in the division where your criminal case is assigned.
e) Your attorney should focus 95% of his practice in the county where you are being prosecuted..
f) Will your lawyer include a seal or expungement in the price?
g) Will there be a trial fee?
h) Many criminal attorneys do not prepare contracts. You should never enter into an agreement for legal services without a contract detailing what you will pay and what lawyer will do for you.
i) Your lawyer should be in good standing with the Florida bar. Visit www.flabar.org to check your lawyer's status with the Florida Bar.
The criminal justice system can be very frightening. Whether you serve any jail time will depend on many things. You should consult with an attorney. Many criminal lawyers give free initial consultations. Remember the state attorney will probably file charges within the first 33 days of your arrest on a felony. It's good to be thorough in selecting a criminal attorney but if you are going to hire a criminal lawyer in Miami, you should do so in the first week or so after your arrest. An experienced Miami Criminal attorney should have an opportunity to act on your behalf and maybe avoid formal charges being filed against you. The fact that you were arrested is merely a probable cause determination by an individual officer who believed you violated the law. Formal charges are brought by a prosecutor after a thorough review of the facts and circumstances surrounding your arrest. A good lawyer will move quickly and speak to the Felony Screening unit of the state attorneys office or the division prosecutor to try and avoid formal criminal charges being filed.
You have a constitutional right to remain silent. However, sometimes the police or Federal agency want to speak with you because you may be a witness or have information that may be valuable to them. The police aren't always looking to arrest you. Sometimes the police just want to hear your version of events before making a decision. If you are contacted by someone associated with law enforcement it's a good idea to consult with a lawyer before speaking to them. Although most police officers are good, honest hardworking individuals, their job is to make arrests and solve crime. What you say can be used against you. The most difficult evidence a lawyer has to contest in criminal court usually is his own client's admissions or statements to the police. What your lawyer says cannot be held against you. Criminal defense lawyers sometimes charge a small or nominal fee on a pre-arrest basis to make contact with law enforcement and speak to them on your behalf. It's a good idea to consult with an attorney before speaking to any police officer, detective or federal agent, whether it be the city of Miami Police, Metro Dade Police, City of Miami Beach Police, Aventura Police Department, the FBI, DEA, FDLE or the State Attorneys office. If you get a call from any law enforcement agency wanting to speak with you, call an attorney.
Any criminal charge can potentially result in immigration consequences. Any plea to a criminal charge could possibly result in your deportation, denial of citizenship, or renewal or your residency. There are many factors which will determine if your arrest or criminal charge will eventually hurt your immigration status. Consult an attorney if you have any doubt about how your criminal case might affect your immigration status.
If you have pleaded to a criminal case and you have been placed on either probation or house arrest you can be violated for a failure to comply with the conditions of your probation or supervised release. If you have any concerns that you are going to violate your probation a good Miami criminal defense attorney may be able to intercede on your behalf and help and resolve your probation issue before a violation of probation has been filed against you. Sometimes, a simple call to the prosecutor or probation officer, or motion can resolve your issue. You could avoid needless days in jail and sleepless nights by contacting an experienced Miami criminal lawyer.
Here are some questions you need to answer before determining if your record can be sealed or expunged in Florida.
1) Have you have never had a record sealed or expunged before?
2) Have you ever have been convicted (adjudicated guilty) of a misdemeanor, including traffic criminal cases such as DUI, reckless driving, or driving while license suspended or a felony?
3) Are you currently under probation, community control, or serving any other court imposed sentence?
4) Did you receive a withhold of adjudication or were you adjudicated?
The following are a list of crimes you cannot seal or expunge even if you received a withhold of adjudication:
- Luring or Enticing a Child - F.S. 787.025
- Sexual Battery and related offense - Chapter 794
- Procuring person under 18 for prostitution - F.S. 796.03
- Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age - F.S. 800.04
- Voyeurism ? F.S. 810.14
- Violations of the Florida Communications Fraud Act (Scheme to defraud or Organized Fraud as defined in F.S. 817.034)
- Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled adult - F.S. 825.1025
- Sexual Performance by a child - F.S. 827.071
- Sexual misconduct with mentally deficient or mentally ill defendant and related offenses. A violation of any offense qualify for registration as a sexual predator under F.S. 775.21 or for registration as a sexual offender under F.S. 943.0435.
- Offenses by public officers and employees - Chapter 839
- Giving/showing/transmitting/loaning obscene materials to a minor - F.S. 847.0133
- Computer pornography(child related) - F.S. 847.0135
- Selling or buying of minors - F.S. 847.0145
- Drug Trafficking (Trafficking in Controlled Substances) - F.S. 893.135 (This does not include possession)
- Violations of Pretrial detention or release - F.S. 907.041
- Arson - F.S. 806.01
- Aggravated Assault - F.S. 784.021
- Aggravated Battery - F.S. 784.045
- Illegal use of explosives - F.S. 790.001
- Child abuse or aggravated child abuse- Chapter 827
- Abuse of elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult
- Aircraft Piracy
- Kidnapping - Chapter 787
- Homicide - Chapter 782
- Manslaughter - F.S. 782.07
- Robbery - F.S. 812.13
- Carjacking - F.S. 812.133
- Sexual activity with a child, who is 12 years of age or older, but less than 18 years of age, by or at solicitation of a person in familial or custodial authority - F.S. 827.071
- Burglary of a dwelling - F.S. 810.02
- Stalking and aggravated stalking - F.S. 784.048
- Act of Domestice Violence as defined in F.S. 741.28
- Home invasion robbery - F.S. 812..135
- Act of terrorism as defined by F.S. 775.30
- Attempting or conspiring to committ any of the above crimes
943.0585 Court-ordered expunction of criminal history records.--The courts of this state have jurisdiction over their own procedures, including the maintenance, expunction, and correction of judicial records containing criminal history information to the extent such procedures are not inconsistent with the conditions, responsibilities, and duties established by this section. Any court of competent jurisdiction may order a criminal justice agency to expunge the criminal history record of a minor or an adult who complies with the requirements of this section. The court shall not order a criminal justice agency to expunge a criminal history record until the person seeking to expunge a criminal history record has applied for and received a certificate of eligibility for expunction pursuant to subsection (2). A criminal history record that relates to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, may not be expunged, without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense, or if the defendant, as a minor, was found to have committed, or pled guilty or nolo contendere to committing, the offense as a delinquent act.. The court may only order expunction of a criminal history record pertaining to one arrest or one incident of alleged criminal activity, except as provided in this section. The court may, at its sole discretion, order the expunction of a criminal history record pertaining to more than one arrest if the additional arrests directly relate to the original arrest. If the court intends to order the expunction of records pertaining to such additional arrests, such intent must be specified in the order. A criminal justice agency may not expunge any record pertaining to such additional arrests if the order to expunge does not articulate the intention of the court to expunge a record pertaining to more than one arrest. This section does not prevent the court from ordering the expunction of only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity. Notwithstanding any law to the contrary, a criminal justice agency may comply with laws, court orders, and official requests of other jurisdictions relating to expunction, correction, or confidential handling of criminal history records or information derived there from. This section does not confer any right to the expunction of any criminal history record, and any request for expunction of a criminal history record may be denied at the sole discretion of the court.
(1) PETITION TO EXPUNGE A CRIMINAL HISTORY RECORD.--Each petition to a court to expunge a criminal history record is complete only when accompanied by:
(a) A valid certificate of eligibility for expunction issued by the department pursuant to subsection (2).
(b) The petitioner's sworn statement attesting that the petitioner:
1. Has never, prior to the date on which the petition is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing any felony or a misdemeanor specified in s. 943.051(3)(b).
2. Has not been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition pertains.
3. Has never secured a prior sealing or expunction of a criminal history record under this section, former s. 893.14, former s. 901.33, or former s. 943.058, or from any jurisdiction outside the state, unless expunction is sought of a criminal history record previously sealed for 10 years pursuant to paragraph (2)(h) and the record is otherwise eligible for expunction.
4. Is eligible for such an expunction to the best of his or her knowledge or belief and does not have any other petition to expunge or any petition to seal pending before any court.
Any person who knowingly provides false information on such sworn statement to the court commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) CERTIFICATE OF ELIGIBILITY FOR EXPUNCTION.--Prior to petitioning the court to expunge a criminal history record, a person seeking to expunge a criminal history record shall apply to the department for a certificate of eligibility for expunction. The department shall, by rule adopted pursuant to chapter 120, establish procedures pertaining to the application for and issuance of certificates of eligibility for expunction. A certificate of eligibility for expunction is valid for 12 months after the date stamped on the certificate when issued by the department. After that time, the petitioner must reapply to the department for a new certificate of eligibility. Eligibility for a renewed certification of eligibility must be based on the status of the applicant and the law in effect at the time of the renewal application. The department shall issue a certificate of eligibility for expunction to a person who is the subject of a criminal history record if that person:
(a) Has obtained, and submitted to the department, a written, certified statement from the appropriate state attorney or statewide prosecutor which indicates:
1. That an indictment, information, or other charging document was not filed or issued in the case.
2. That an indictment, information, or other charging document, if filed or issued in the case, was dismissed or nolle prosequi by the state attorney or statewide prosecutor, or was dismissed by a court of competent jurisdiction, and that none of the charges related to the arrest or alleged criminal activity to which the petition to expunge pertains resulted in a trial, without regard to whether the outcome of the trial was other than an adjudication of guilt.
3. That the criminal history record does not relate to a violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825..1025, s. 827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s. 916.1075, a violation enumerated in s. 907.041, or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, where the defendant was found guilty of, or pled guilty or nolo contendere to any such offense, or that the defendant, as a minor, was found to have committed, or pled guilty or nolo contendere to committing, such an offense as a delinquent act, without regard to whether adjudication was withheld.
(b) Remits a $75 processing fee to the department for placement in the Department of Law Enforcement Operating Trust Fund, unless such fee is waived by the executive director.
(c) Has submitted to the department a certified copy of the disposition of the charge to which the petition to expunge pertains.
(d) Has never, prior to the date on which the application for a certificate of eligibility is filed, been adjudicated guilty of a criminal offense or comparable ordinance violation, or been adjudicated delinquent for committing any felony or a misdemeanor specified in s. 943.051(3)(b).
(e) Has not been adjudicated guilty of, or adjudicated delinquent for committing, any of the acts stemming from the arrest or alleged criminal activity to which the petition to expunge pertains.
(f) Has never secured a prior sealing or expunction of a criminal history record under this section, former s. 893.14, former s. 901.33, or former s. 943.058, unless expunction is sought of a criminal history record previously sealed for 10 years pursuant to paragraph (h) and the record is otherwise eligible for expunction.
(g) Is no longer under court supervision applicable to the disposition of the arrest or alleged criminal activity to which the petition to expunge pertains.
(h) Has previously obtained a court order sealing the record under this section, former s. 893.14, former s. 901.33, or former s. 943.058 for a minimum of 10 years because adjudication was withheld or because all charges related to the arrest or alleged criminal activity to which the petition to expunge pertains were not dismissed prior to trial, without regard to whether the outcome of the trial was other than an adjudication of guilt.. The requirement for the record to have previously been sealed for a minimum of 10 years does not apply when a plea was not entered or all charges related to the arrest or alleged criminal activity to which the petition to expunge pertains were dismissed prior to trial.
(3) PROCESSING OF A PETITION OR ORDER TO EXPUNGE.--
(a) In judicial proceedings under this section, a copy of the completed petition to expunge shall be served upon the appropriate state attorney or the statewide prosecutor and upon the arresting agency; however, it is not necessary to make any agency other than the state a party. The appropriate state attorney or the statewide prosecutor and the arresting agency may respond to the court regarding the completed petition to expunge.
(b) If relief is granted by the court, the clerk of the court shall certify copies of the order to the appropriate state attorney or the statewide prosecutor and the arresting agency. The arresting agency is responsible for forwarding the order to any other agency to which the arresting agency disseminated the criminal history record information to which the order pertains. The department shall forward the order to expunge to the Federal Bureau of Investigation. The clerk of the court shall certify a copy of the order to any other agency which the records of the court reflect has received the criminal history record from the court.
(c) For an order to expunge entered by a court prior to July 1, 1992, the department shall notify the appropriate state attorney or statewide prosecutor of an order to expunge which is contrary to law because the person who is the subject of the record has previously been convicted of a crime or comparable ordinance violation or has had a prior criminal history record sealed or expunged. Upon receipt of such notice, the appropriate state attorney or statewide prosecutor shall take action, within 60 days, to correct the record and petition the court to void the order to expunge. The department shall seal the record until such time as the order is voided by the court.
(d) On or after July 1, 1992, the department or any other criminal justice agency is not required to act on an order to expunge entered by a court when such order does not comply with the requirements of this section. Upon receipt of such an order, the department must notify the issuing court, the appropriate state attorney or statewide prosecutor, the petitioner or the petitioner's attorney, and the arresting agency of the reason for noncompliance. The appropriate state attorney or statewide prosecutor shall take action within 60 days to correct the record and petition the court to void the order. No cause of action, including contempt of court, shall arise against any criminal justice agency for failure to comply with an order to expunge when the petitioner for such order failed to obtain the certificate of eligibility as required by this section or such order does not otherwise comply with the requirements of this section.
(4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any criminal history record of a minor or an adult which is ordered expunged by a court of competent jurisdiction pursuant to this section must be physically destroyed or obliterated by any criminal justice agency having custody of such record; except that any criminal history record in the custody of the department must be retained in all cases. A criminal history record ordered expunged 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. A criminal justice agency may retain a notation indicating compliance with an order to expunge.
(a) The person who is the subject of a criminal history record that is expunged under this section or under other provisions of law, including former s. 893.14, former s. 901.33, and former s. 943.058, may lawfully deny or fail to acknowledge the arrests covered by the expunged record, except when the subject of the record:
1. Is a candidate for employment with a criminal justice agency;
2. Is a defendant in a criminal prosecution;
3. Concurrently or subsequently petitions for relief under this section or s. 943.059;
4. Is a candidate for admission to The Florida Bar;
5. Is seeking to be employed or licensed by or to contract with the Department of Children and Family Services, the Agency for Health Care Administration, the Agency for Persons with Disabilities, or the Department of Juvenile Justice or to be employed or used by such contractor or licensee in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly as provided in s. 110.1127(3), s. 393.063, s. 394.4572(1), s.. 397.451, s. 402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(4), chapter 916, s. 985.644, chapter 400, or chapter 429;
6. Is seeking to be employed or licensed by the Department of Education, any district school board, any university laboratory school, any charter school, any private or parochial school, or any local governmental entity that licenses child care facilities; or
(b) Subject to the exceptions in paragraph (a), a person who has been granted an expunction under this section, former s. 893.14, former s. 901.33, or former s. 943.058 may not be held under any provision of law of this state to commit perjury or to be otherwise liable for giving a false statement by reason of such person's failure to recite or acknowledge an expunged criminal history record.
(c) Information relating to the existence of an expunged criminal history record which is provided in accordance with paragraph (a) is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution, except that the department shall disclose the existence of a criminal history record ordered expunged to the entities set forth in subparagraphs (a)1., 4., 5., 6., and 7. for their respective licensing, access authorization, and employment purposes, and to criminal justice agencies for their respective criminal justice purposes. It is unlawful for any employee of an entity set forth in subparagraph (a)1., subparagraph (a)4., subparagraph (a)5., subparagraph (a)6., or subparagraph (a)7. to disclose information relating to the existence of an expunged criminal history record of a person seeking employment, access authorization, or licensure with such entity or contractor, except to the person to whom the criminal history record relates or to persons having direct responsibility for employment, access authorization, or licensure decisions. Any person who violates this paragraph commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.