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Filing Formal Charges

Just because you have been arrested does not mean that you will actually be charged with a crime. After being arrested, the State Attorney reviews the Law Enforcement Officer's narrative of the alleged incident that led to your arrest. Many times the State Attorney's Office finds that the facts as described by the Law Enforcement Officer do not rise to the level of a crime, or they find that the offense charges by the Law Enforcement Officer are excessive and the State Attorney's Office files lesser charges. This is a crucial time, because many times I can intervene with the State Attorney's Office and persuade them that either formal charges are not necessary, or that a lesser charge would be more appropriate. The worst thing that could happen would be if the State Attorney's Office filed the most severe charges possible for your facts. That puts us at a disadvantage in future negotiations.

It is important to note that the State Attorney's office has the sole discretion to decide whether to file formal charges against you. Even if witnesses do not want to testify against you or they want to stop the case, the State Attorney may still press forward on the charges. The law of the State of Florida gives the State Attorney this type of discretion and they can subpoena these witnesses to come to court even if they should indicate that they do not want to. Nevertheless, the prosecutor must file formal charges within 90 days of your arrest if a misdemeanor offense, or 175 days of your arrest if a felony offense. Otherwise, the State Attorney is forbidden from pursuing charges against you after the expiration of that period. This rule is intertwined with your right to a speedy trial as guaranteed by the United States Constitution.

Additionally, if you are in jail and cannot afford bail, the prosecutor has 30 days from the date you are arrested to file formal charges against you. If formal charges are not filed within 30 days, the court, on the 33rd day and with notice to the State of Florida, must order you automatically released on your own recognizance, unless the State files formal charges by that date. The State may petition the court for an extension of time to file formal charges if they can show good cause for doing so. The extension can be for no more than 40 days from the date of your arrest.

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