Legal Analysis

How Does The System Work? An Insiders Perspective


The first thing that happens usually is the arrest. An arrest can come in different ways. One way an arrest can happen is when an officer gives you a PTA (promise to appear). What this means is an officer has made a decision that you are not a flight risk, so instead he gives you a promise to appear. A PTA (promise to appear) is a promise by you to appear in court when noticed by mail. PTAs are normally given to people charged with only minor offenses such as drinking in public, misdemeanor theft and sometimes marijuana possession.

However, this isn’t how people usually get arrested. An arrest is most typically characterized by tight handcuffs, a ride to the station in the back of a marked police vehicle, followed by a stay at the local jail. While in jail you are given an initial bond, but not always. If you are not given a bond right away, (such as in a domestic violence case) you must wait to appear before a judge the next morning. Florida law requires that you be brought before a judge within 24 hours. However, if the Government shows good cause to a judge you could be detained as long as 48 hours. This is called the initial appearance or commonly known as the bond hearing.

At the bond hearing, or initial appearance, a judge will set a bond. How much the bond will be depends on the nature of the offense, ties to the community, prior criminal history and whether a judge finds probable cause on the face of the arrest warrant or arrest form. In certain cases bond is denied. Certain offenses in Florida do not carry a bond. Some examples are murder, kidnapping, armed trafficking, and burglary with a battery. If a person is given a NO BOND status, then s/he must wait in custody for 21 days until the arraignment or have an attorney file a motion to modify bond.
Another way a person can be arrested is by way of an arrest warrant. Arrest warrants are usually used in more complex or serious cases. Arrest warrants have been used in Insurance Fraud, Murder, Grand Theft cases involving large amounts of restitution, RICO, Mortgage Fraud, but can be used by law enforcement to effectuate an arrest in just about any case.


The arraignment is the second time a person appears before a judge. The arraignment typically happens 21 days following an arrest or PTA. However, the state has as long as 90 days in Misdemeanor cases and 180 days in Felony cases. In Miami Dade county formal charges are usually brought forth no later than the 33rd day from the day a person was arrested. If the state takes longer than 33 days a person is entitled as a matter of law to an ROR (release on his or her own recognizance). At this stage the government attorney decides whether they will file formal charges. If formal charges are filed then the defendant must enter a plea. The person can either plead NOT GUILTY, GUILTY or NO CONTEST. A No Contest and Guilty plea is the same thing. The difference between the two is not important for ones criminal case.

If charges are filed against a defendant, the state attorney will sometimes make an initial plea offer. The offer is different for different cases and for different people. The plea offer will depend usually on: 1) the nature of the charges, 2) the defendant’s prior criminal history or contacts with the system 3) the victims wishes and 4) the relationship/reputation the defense lawyer has established with the prosecutor and 5) a lawyers persuasiveness. If you decided not to take a plea of guilty, or the state attorney wishes not to offer a plea, the case is set for trial.

The key here is to hire an attorney to speak with the pre-file prosecutor before formal charges are filed. A good lawyer will make an attempt to have the case resolved in your favor before formal charges are filed. Some of the questions you want to ask a prospective attorney:

1) What percentage of your practice is dedicated to exclusively criminal work.

2) Has your lawyer handled your type of case before and what results has obtained

3) How many trials has your lawyer had in the last year?

(If a lawyer isn’t trying cases that isn’t a good sign. Sometimes you just have to go to trial. A lawyer with a reputation for trying cases will many times get better results than a lawyer without a reputation for going to trial.)


A week or so before the trial, the judge will set a report date known as a calendar call or sounding. At a sounding, or calendar call, the defendant informs the judge about the status of the case. The defendant must announce if s/he is ready for trial or whether more time is needed to prepare. If the defense and government are both ready, the case is sounded ready for trial and rolled over to the trial date. Your lawyer should use this and every opportunity to resolve your case favorably.


If you have reached this stage in the process your lawyer should be prepared to go to trial. An experienced, trial tested, seasoned criminal defense lawyer may be able to save you jail time, fines and significant emotional aggravation. On the trial day a defendant will usually have the option of pleading guilty, if he or she has changed their mind. Sometimes the offers from the State get better at this stage in the game and sometimes the offer get worse. Whether the plea offer gets better, or worse, depends on the government lawyer, defense lawyer, victim, judge and circumstances surrounding the case.

Before the trial actually starts motions are sometimes argued. A good motion could get your case dismissed. If a trial is actually started a Judge will bring a venire of jurors (a group of jurors) into the courtroom and jury selection begins. From this venire or group of jurors, a panel of 6 jurors, sometimes 12, in more serious cases, is selected. The attorney or (pro-se) litigant has a lot of influence over which jurors are selected. Jury selection is truly an art form. A defendant should never attempt to select a jury on their own. It is a very stressful, complex process that trial lawyers are equipped and trained to handle. Jury selection will almost certainly overwhelm a pro-se litigant.

After jury selection what follows is opening statements. The state will give an opening statement and the defense has the option of giving an opening statement. After opening statements the state will present their evidence. Evidence can be in the form of physical or testimonial evidence. The defense then has the option to cross examine any witnesses. After the state has presented its case the defense will make arguments on a motion for Judgment of Acquittal. If the judge grants the JOA (Judgment Of Acquittal) then the case is dismissed. If that motion is unsuccessful then the defendant will have an opportunity to present a case and introduce evidence if it deems necessary. After the conclusion of the defense case the state may seek to introduce any rebuttal testimony or evidence thereafter. Following the defense case are closing arguments.


Once the defense and state has presented their closing arguments the judge will charge the jury. The judge will read the jury legal instructions the jury must follow and use in their deliberations. Jury instructions tells the jurors what law they must rely upon in deciding their verdict. Having a lawyer is very important in this process.