A nice fellow dropped by the office recently, wondering if he could remove a felony from his record by sealing it. I took a look at it and discovered that he had been arrested for Possession of a Controlled Substance, gone to court without an attorney, and entered a plea, all without ever receiving any legal advice from an attorney.

The judge seemed very nice and the prosecutor offered a nice resolution, with no jail or extra fines, and only one year of probation. He took the deal, and completed the terms of the agreement without any problems.

Now, quite a few years later, he is finding that the felony case from the past is preventing him from being able to get decent employment in the present. Sadly, that nice deal that he received to resolve the felony involved an adjudication of guilt, and now he is a convicted felon with no ability to remove the case from his record. He can’t get a decent job. Or vote, for that matter.

This particular combination of events is occurring every day in courtrooms around this state, with negative effects that continue for the remainder of the defendant’s life. Someone goes to court and settles a case alone, without knowing the consequences of their decision. Later, the damage can not be undone.

I can not emphasize enough the importance of speaking with an attorney before attempting to resolve a case. Many criminal defense attorneys do not charge for an initial consultation and the simple decision to sit down in a room with an attorney can be critical.

Another mistake that some defendant’s make is to wait too long to retain an attorney. After an arrest for a felony in Brevard County, the case may go through the hands of three different prosecutors before being resolved. The sooner that an attorney on the side of the defendant begins working on the case, the better the chances of a reasonable resolution in the case.

After a felony arrest, the evidence gathered by the police is sent to the Intake Prosecutors at the Office of the State Attorney. They decide what charges to file, and, in fact, whether to charge the defendant with a crime at all. Law Enforcement officers arrest someone, in theory, based on probable cause to believe that a crime has been committed, whereas a criminal case has to be proven beyond a reasonable doubt. That means that an arrest may be supported by the evidence, but that same evidence is simply not of the quality or quantity to support a charge. As a result, many cases that come in following an arrest are dropped by the Intake Prosecutors. The charging document regularly used in Florida is an Information, and when the State files a Notice of No Information, that document states that the State is not going to be charging the defendant at all. If the defendant is asked about this criminal case, he or she may admit that they were arrested, but state that they never were charged.

When the Intake Prosecutors are deciding what to do with a case, before they have filed the
Information, an attorney can affect that decision sometimes. For example, sometimes witnesses to the incident can be revealed that the police never questioned. Perhaps someone has a video that the police have not seen. Sometimes, the attorney can convince the State to file the charge as a misdemeanor rather than a felony. The time when the Intake Prosecutors have the file can be critical to the outcome of the case.

In cases where felony charges have been filed, most cases proceed to the second set of prosecutors, the Early Resolution Prosecutors. Their job is to make an offer to resolve the case immediately, to winnow the cases that don’t need to be tried. Generally, this is the stage where cases are resolved where the evidence is certain and the offer to resolve the case is reasonable. Some cases are eligible for a nonplea resolution, such as Pretrial Intervention, resulting in the charges being dropped after the program is completed. The advice and help of an attorney is critical at this stage as well.

If the case is not resolved at Early Resolution, the file is sent to the Trial Attorneys at the State Attorney’s Office. This the last stage in resolving a felony case. They don’t actually pick juries on the majority of cases and it is important for a defendant to have an attorney representing them at this stage as well. Whether through negotiations or jury trial, good representation is critical.

So, in most felony cases, there are three different prosecutors who may offer a resolution that is acceptable to the defendant. It is critical that a person accused of a crime have good legal representation in a case from the very beginning, regardless of how overwhelming the evidence or how soon the case is closed.

Darrell Sedgwick, Criminal Defense Attorney

Morgan & Barbary

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