Stephen G. Cobb - Florida Criminal Defense Lawyer

Client Education Series Misdemeanor Court Procedure And Proceedings


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.

Now, as part of this client education series, I have no idea, as I am filming this today, as to what kind of case you have. You may have a juvenile case, you may have a misdemeanor case, you may have a capital felony for all I know but we are going to cover most of the types of court proceedings in the next series of videos. And if you find one does not affect you, feel free to go to the next one but you may want to listen through because you may gather some information that could be useful.

Now, let’s start with misdemeanor court. With misdemeanor court, when someone is arrested, the officer has some choices to make that relate to bond issues. And sometimes, people get a bond right away before they see a judge. Most of the time, they are held overnight in the jail, whether it is in Crestview, whether it is in Pensacola, wherever in Florida, could be Miami. And then, the next day, they are going to have what is known as a first appearance and that is your first court date. So, procedurally, you will have the first appearance. And at first appearance, the judge is going to make some decisions, is there probable cause to believe a crime has been committed if there is a warrant that has already been decided, so the judge does not even need to consider it. Is the person entitled to a bail bond, and if so, what conditions, what amount, and it can range anything from no contact in a domestic case to no violent contact in a domestic case to wearing an electronic monitor, wear an alcohol monitor, there are a number of different conditions which is why it is important to have someone there at first appearance.

Now, if you have an attorney hired by the time of the first appearance comes around in a misdemeanor case, the lawyer has to make a judgment call, and here is the judgment call. Do I go to the jail where my client is or do I go to where the judge is because the judge usually, not always, does not go to the jail anymore. When I started my career, all the time there was no video court but now there is video court. So the judge is usually in a video courtroom and if we need to bring a witness in, say it is a domestic and we want to get a no violent contact, which allows contact, allows the defendant to remain in the house, then we might want to have the complaining witness who the state will call a victim present to give testimony, “No, I am not afraid of him or her”, “Yes, I would like them to come home”, “Yes, I would like no violent contact instead of no contact at all”. That is just one example. Perhaps we are fighting against an electronic monitor because those things are expensive. But whatever it is, generally speaking, the attorney is going to want to be sitting near the judge. What will happen is we will get a packet of information and sometimes we only have 60 seconds, if that much, to go through it and review probable cause, make any quick motions or anything like that. But that is why it is important for us to be next to the judge.

Next, you have the arraignment. Arraignment is formal charging. If someone does not get a bond or needs a change in bond conditions prior to the arrangement, we schedule a separate motion to set, reduce or alter bond conditions. Now, a lot of times, people say, “Well, I have court coming up and I can handle it then”. There are some judges that will handle bond matters at arraignment, which in some counties, is called Plea Day, by the way. However, most judges do not want to deal with that at arraignment because they have 200, 250, 300 cases to get through, they do not have time. They just need to go boom, boom, boom, boom, boom through all of them before they run out of time for the day. So, if there is a bond issue, we will probably file a Notice of Appearance as counsel and a legal pleading scheduling a separate court date.

Now, if the court date is going to be after arraignment, then we are calling the Judicial Assistant (JA), I almost said JA first but you may not know what that is. We call the Judicial Assistant and the JA will tell us if the judge will accept us putting it on that docket for arraignment instead of a later bond hearing date. Most of the time, we are going to get an earlier date for that bond issue than we would get at arraignment. Next, you can have motion hearings after arraignment, whether it is about bond, whether it is a motion to suppress evidence, whether it is a motion to dismiss, whether it is a motion for specific discovery that has not been provided even though a motion, which is now called a Notice of Discovery, has been filed. So, we might have motion hearings.

Next, in some jurisdictions and not many, because misdemeanor caseloads are so high, you have a calendar status management conference or a pre-trial conference, which we can legally excuse you from attending if nothing useful is going to occur. And that is what we will do. If nothing useful is going to occur, why should you be there, so we will do that. Now, some judges do not allow it so you may have to appear or we will continue the case.

Next, we have what in some counties is called Plea Day and in other counties might be called Jury Trial Review. And you might be thinking, “Wait a minute! Didn’t he say that Plea Day might be what arraignment court is called?” Yes. Now, does that make sense to you? As a practicing lawyer for 27 years, it makes no sense to me. I mean we have one rule 3 and rule 3 is the Florida Rules of Criminal Procedure, 3 point this, 3 point that. And nowhere in the rules of criminal procedure is there plea day at all. This is why in 20 circuits for 67 counties, we have what I consider to be Criminal Justice System Chaos where in one county, plea day means arraignment. I am looking at you, Okaloosa County; in another county, arraignment court is called arraignment. I am looking at you, my hometown, Escambia County. So, across the state, you are going to find these different names. We will keep you advised as to what kind of court appearance is coming up and whether you need to attend.

Next is the trial. Now, there are two kinds of trials in misdemeanor cases. You only get six jurors and a lot of people are shocked, they go, “Don’t I get 12?” No. Florida uses small juries because it is easier to get convictions. Thank your legislatures for the fact that you do not get as fair a trial as you should but it is what it is. So, in a jury trial scenario, you have jurors that are selected and the first day of jury trial is jury selection. Maybe the first two days in some cases but usually not in the misdemeanor case.

Now, from there, you could also have a bench trial. That is a judge-only trial, meaning the judge rules on issues of law and instead of having the jury, rule on an issue of fact. A hit B or not, that is a factual dispute. A says that they did not hit B and B says that A hit them. Well, the jury decides issues of fact in a jury trial. In a bench trial, just the opposite, the judge decides issues of fact along with issues of law. Now, there can be other types of special proceedings within the area of misdemeanor court appearances but generally whether it is on the criminal traffic docket, which is actually technically separate from the criminal misdemeanor. They are all technically misdemeanor cases and this is the basic procedure that will happen if your case or the case of someone you love is a misdemeanor.

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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Stephen G. Cobb, Esq.

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