Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Unlike a jury trial verdict where the state cannot appeal what they consider to be an adverse not-guilty verdict, the state of Florida can appeal a ruling on a motion to suppress that goes against them. For practical purposes of a criminal defendant, this could be done after trial and conviction or after someone changes their plea from not guilty to no contest or guilty. This is very important, and the defendant reserves the right to appeal that issue.

Now, there are some limited circumstances in which someone can appeal that type of ruling before trial, but they are extremely rare. They come in the form of extraordinary relief motions, and those are generally not granted. So, generally both sides can appeal a motion to suppress decision. If the judge rules in favor of excluding the evidence, the state will often appeal. If the judge denies the motion, an appeal on a motion to suppress is done after trial and conviction because a person might win the jury trial. So, there has to be a trial and a conviction in order for there to be an appeal on a suppression issue like that. The other circumstance would be after a plea of no-contest after specifically reserving the right to appeal the trial court’s ruling.

What Is The Process Of Filing A Motion To Suppress Evidence In a Criminal Case?

In Florida, motions to suppress are governed under rule 3.190G and 3.190H. These rules give you the specifics on how and when to file a motion to suppress. Generally, it is up to the legal team as to when to file the motion to suppress. For example, 3.190, paragraph C covers motions to dismiss and states that the time for filing is upon arraignment or at another time designated by the judge. This is a pretty broad time horizon, especially when considering that a misdemeanor case is normally going to last two to four months and a felony case is going to last five to seven months.

I first want my clients to complete a four-day fact pattern report. I don’t initially use office chats to gather factual information, because I had the good fortune of going to trial about 30 days after I started practicing criminal law. I did the office chat routine with someone, and we met about 15 or 16 times. At each one of those office visits, my client was basically whining and moaning about how upset he was that I was trying to gather factual information. Then, right before my very first jury trial, he tapped me on the shoulder and asked if a certain piece of information that he had yet to tell me was important. I was white as a ghost and froze; the information was very important, and it meant that he would lose and get the maximum sentence. So, I had to undo my very first jury trial. I learned that the best way to gather factual information is to have the client complete a four-day fact pattern report.

After the fact pattern report is complete, we get the discovery exhibit. I always make sure that my clients have a copy of the discovery exhibit, because I want them to go through it with a fine-toothed comb and point out things that are not accurate. Sometimes there are errors of omission where something is intentionally or negligently left out. Other times, there may be an error of commission whereby an officer said something that was inaccurate. We need to know those things. Since I was not present during the arrest, knowing that information in detail can be the difference between winning and losing a case. A motion to suppress is generally filed after the arrest, before trial and after there has been discovery and fact gathering. It’s smart to look at a case as if you were the prosecutor, because the prosecutor will look at the case as if they were a defense lawyer.

As a follow up to the initial fact pattern report, I have every client complete a discovery review report. After I have all of that information, the decision can be made to do staffing internally or meet with other lawyers. We’ll make a judgment call as to whether or not to move forward with a motion to suppress. Some lawyers like to file a motion to suppress in every case, whether it’s a good one or a bad one. This is because they strongly believe that it is helpful to their client.

Most lawyers who believe and practice that are located in the large urban areas of Florida, such as Miami, Orlando, and Jacksonville. In the smaller counties that dominate Florida, such as Hamilton County, Madison County and Walton County, the culture is radically different from urban counties. As a result, lawyers who reflexively file a motion to suppress in every case sometimes cause the judges to take it out on their clients. With that said, not every prosecutor is the same, and I’m not trying to paint every prosecutor in the same way based on whether they practice in an urban or rural county. However, there is a remarkable difference between the Rambo litigation in Palm Beach County and what you experience in Santa Rosa, Okaloosa, or Hendry County.

In the more rural counties, I think that the better practice is to carefully consider before filing a motion to suppress. Some judges get very frustrated when they hear three garbage motions to suppress in a row. Once a judge has experienced that, they might assume that the next motion to suppress is garbage as well, even if it is not. This is a real problem in some areas, and I think that lawyers should be very careful when they file motions to suppress. Otherwise, they will look like they don’t know what they are talking about. The last thing you want is a lawyer who is not respected by opposing counsel or the court.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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