A ‘crime’ is a wrongful act that is punishable by imprisonment or fine under a criminal statute or code.  Criminal acts cause injury or harm to people or society in general.  Under our system of justice, crimes are prosecuted through arms of the state or federal government.  The Florida Legislature and the United States Congress define what types of conduct are considered to be criminal.

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In our legal system, defendants are presumed innocent until proven guilty- this presumption applies through trial and is a fundamental precept to criminal law.

Classification of Crimes

Criminal Codes

Florida has its own penal or criminal code, which categorizes different types of crimes.  In general there are 3 main categories of crimes:

Petty Offenses/Citations

In Criminal Law, Petty offenses or citations are relatively minor crimes, which include traffic offenses, trespass, jaywalking, and disturbing the peace.  Ordinarily, the penalty for a petty offense is a fine.  Citations, Summonses or Notices to Appear are routinely given to violators of petty offenses and traffic ordinances requiring their appearance in court for a plea or hearing.


In Criminal Law, Misdemeanors are more serious than petty offenses and include such crimes such as simple assault, shoplifting and writing a bad check for a small amount.  Misdemeanors are generally punishable by less than one year in prison.


In Criminal Law, Felonies include such serious crimes as robbery, kidnapping and murder.  Felonies may be punishable by death or imprisonment for periods in excess of one year.  The conviction of a felony will generally result in the loss of civil rights, including the right to vote, serve on a jury or possess a firearm.

Jury Trial

In Criminal Law, Individuals accused of felonies are entitled to a trial by a jury under the United States Constitution.  There is no constitutionally guaranteed right to trial by jury for many misdemeanors and lesser offenses.

Elements of a Crime

In Criminal Law, For an act to be classified as criminal, three (3) requirements must be met:

A criminal statute making the act criminal must have been enacted prior to the time of the commission of the act (an act cannot retroactively be made criminal by passing a criminal statute after the fact)- this would violate the Constitutional protection against ex post facto (after the fact) criminal laws;

It is important to note, In Criminal Law, an act must have been committed. Merely thinking about a criminal act does not constitute a crime.  The law will require an overt action, however slight, for a criminal conviction.

The accused must have committed the act with a particular state of mind. Generally, a criminal statute will define the necessary mental state required to make an act criminal.  Statutes may require that an act be done “intentionally” or “knowingly”.  The accidental discharge of a firearm, which kills another human being, will ordinarily not constitute the crime of murder because the act was not done knowingly or intentionally; if the act was done negligently or recklessly, it may however constitute ‘manslaughter’ or ‘criminally negligent homicide’. Ordinarily, absent a wrongful or criminal intent, an act will not be criminal.

Ignorance of the Law

Generally ignorance of the law is no excuse of or defense to a criminal action. Nevertheless, under special circumstances, the court may impose a lighter sentence in cases involving ignorance of the law.


Under the Fourth Amendment to the U.S. Constitution, individuals are protected from unreasonable government intrusion into their persons and property. This applies to police who stop a citizen on the street for questioning, arrests, or searches of homes and businesses. If a search is conducted in violation of an individual’s constitutional rights, any evidence discovered during the illegal search or seizure will ordinarily be inadmissible in the criminal case.

If a defendant consents to a search, any objections are ordinarily waived.  Officers can search the body of a person and the area within a person’s reach if they suspect that a weapon is present. In most other cases, the police are required to get a warrant to go ahead with a search.

1. A search warrant permits police to conduct a search of a specific place identified in the warrant. A judge will issue a warrant, upon a finding of ‘probable cause’, that is, evidence that establishes that items related to a crime or criminal activity are likely to be found at the location that will be searched.

2. In some cases, a warrant is not required. Police officers are permitted to search a person’s body and clothing for weapons or other contraband when making a valid arrest. If an individual is pulled over for a minor traffic infraction, the police officer may not conduct a search of the vehicle’s trunk. No search warrant is needed if an object is in plain view. In certain emergency situations (such as if evidence is about to be destroyed), a warrant is not necessary.

Criminal Procedure


In Florida, criminal cases begin with either with an arrest or a summons to appear in court.  A summons orders a person to appear in court on the day indicated on the summons. Failure to appear will result in an arrest warrant being issued against the defendant.

The police must have probable cause’ (a reasonable basis) to believe that a defendant has committed a crime before an arrest can take place. This means that there must be a reasonable belief that a crime was committed and the person to be arrested committed the crime.

First Hearing

At the first hearing, which is held within 24 hours of arrest, the judge will advise the accused of the charges and determine if the police had a sufficient legal basis to arrest you. This is also referred to as a probable cause determination.

If the judge determines there is probable cause, the judge will ask if the defendant wishes to be represented by an attorney and, if so, whether he/she intends to hire private counsel.

Pretrial Release

Persons accused of committing a crime who are in custody are usually entitled to pretrial release, unless they are accused of the commission of a capital offense (a crime punishable by death) or an offense punishable by life imprisonment and the proof of guilt is “evident or the presumption great.” Depending upon the situation, the accused may be released on his or her own recognizance, or into the custody of a designated person. The Court may set bond. In any case, the accused must agree to return to court for further proceedings.


Once formal criminal charges are filed, a court appearance called an arraignment is scheduled, usually within 72 hours of arrest. The arraignment is conducted in open court. The judge or clerk or prosecuting attorney will read the indictment or information on which the defendant will be tried and will ask the defendant to enter a plea, which may be:

A plea of ‘guilty’, which is an admission of committing the crime

A plea of ‘not guilty’ which denies guilt and will result in the scheduling of a pre-trial and trial date.

A plea of no contest or ‘nolo contendere’, which is not an admission of guilt, but indicates that the defendant does not contest the criminal charge. The usual reason for pleading ‘no contest’ instead of ‘guilty’ is so that an admission of guilt cannot be used in a possible civil case (for example, if a defendant is charged with drunk driving resulting in an accident with injuries, a ‘no contest’ plea cannot be used in the accident case as an admission of negligence or guilt).

If a plea of ‘not guilty’ is entered, the case will be set for trial.

Jury Trials

Defendants are entitled to a trial by jury on all criminal charges except for second degree misdemeanors, which are minor charges.

Pretrial Hearings

A Pre-Trial or Disposition Hearing is held in order to determine if a plea agreement has or can be reached and to schedule a date for trial on the court’s calendar if such a proceeding will be necessary.

Plea Arrangements

Florida, like most other states, permits plea bargaining. A person accused of a crime may bargain with the prosecutor to receive a lesser punishment. Typically, the accused person will plead guilty, sometimes to a lesser charge (for example, to manslaughter rather than murder). This process saves the government the time and cost of a jury trial in exchange for a reduced sentence.

An innocent defendant may want to enter into plea bargain to eliminate the risk of a trial and to obtain a lesser sentence or probation instead of jail, or be placed into a non-judicial pretrial diversion program.


Aside from various procedural defenses, there are a variety of situational defenses to criminal charges that can be interposed and asserted.


When interposing the defense of self-defense, the defendant admits that the crime was committed but alleges that the act was justified under the circumstances.  For the defense to be successful, the court or jury must be convinced that the defendant committed the crime under a reasonable belief that he/she was in danger and was acting reasonably under the circumstances to protect a person or property.  Some of the issues the court will look into include determining who the aggressor was and whether the defendant used ‘reasonable’ force.  Individuals have the right to use ‘deadly force’ in appropriate situations.  Deadly force includes the use of weapons.  In some states, one must attempt to retreat before using deadly force to stop an attacker.  Even with regard to an intruder who breaks into to one’s home, deadly force cannot be used unless it reasonably appears that there is a threat of imminent danger to the lives and safety of the homeowner or his/her family.  Self-defense can be utilized as a defense when the act was taken to protect others from imminent danger as well.  Ordinarily, one cannot use deadly force to protect property.  So, for example, a homeowner may not fire upon an intruder who is fleeing from the homeowner’s premises with the homeowner’s property.  Police officers can use reasonable force or deadly force to prevent a crime where appropriate.  Police can shoot a fleeing suspect if they reasonably believe that such person poses a threat of harm to the community.


As was suggested earlier, to be guilty of a criminal act, an individual must have the mental capacity to understand that the act was wrongful. When asserting the defense of insanity, the commission of the act is admitted, however, it is asserted that the defendant lacked the requisite mental capacity to understand the nature of his/her acts or to distinguish between right and wrong.  This test is known as the M’Naughten Rule.

The defendant must have been legally ‘insane’ at the time of the commission of the crime for the defense to apply.  Theoretically, a defendant could have been sane before and after the act but insane at the time of commission of the crime.  This is sometimes referred to as ‘temporary insanity’.

Insanity is a difficult defense and is rarely accepted by judges and jurors.  Defendants found not guilty by reason of insanity are generally confined to a mental institution and not released until their sanity is restored.  Generally, testimony from a psychiatrist is necessary to establish the defense.

Diminished Capacity

A diminished capacity defense asserts that the defendant’s ability to appreciate the nature of the act and the consequences thereof was diminished due to a mental disorder. A plea of “diminished capacity” is not a complete defense to a crime but may serve to reduce the offense to a less serious charge.

Voluntary Intoxication

Intoxication is generally not a defense to a crime but may result in conviction of a lesser offense in cases where a specific intent is a necessary element of the crime.  For example, intoxication may make it impossible for a defendant to commit a premeditated act, such as murder in the 1st degree.

Competency to Stand Trial

A defendant cannot be prosecuted if he/she suffers from a mental disorder that prevents him/her from understanding the nature of a pending criminal proceeding and participating and assisting in the preparation of the defense.  Incompetence to stand trial is not a defense per se, rather, a defendant will ordinarily be placed in a mental institution or given psychiatric care until competence is re-established.  Once competence is re-established, the trial will proceed.


The defense of entrapment does not deny the commission of the crime.  Rather, the defendant claims that he/she was induced or lured into the crime by an agent of law enforcement.  Most commonly, entrapment is used as a defense in drug cases involving undercover officers.  For this defense to be successful, it must generally be shown than the police put the thought of the crime into the defendant’s mind and that the crime probably would not have occurred had the defendant not be entrapped.


An alibi is an assertion that the defendant could not have committed the crime because he/she was somewhere else or with someone else at the time the crime was committed.  In some states, the defense of alibi must be asserted early in the criminal proceeding.

Statute of Limitations

Most crimes have a time limitation within which criminal charges must be filed.  Once the statute of limitations, or time within which charges must be brought, has passed, criminal charges can generally no longer be filed.  There is no statute of limitations for murder.

Double Jeopardy

A person that has already been tried for a particular crime cannot be tried a second time for the same crime. This is the constitutionally guaranteed right of freedom from “Double Jeopardy”.

Punishment for Crimes

Death Penalty

Despite numerous challenges, the United States Supreme Court has upheld the constitutionality of the death penalty and has determined that the death penalty is not necessarily constitutionally prohibited ‘cruel and unusual punishment’ so long as it is not mandatory for specific crimes and the jury has sufficient guidelines to determine its appropriateness under the facts of any particular case.  The specific method of applying the death penalty in each state may, however, be subject to attack as being unconstitutionally cruel and unusual.

Sentencing Guidelines

The Florida Criminal Punishment Code applies to sentencing for all felonies, except capital felonies, committed on or after October 1, 1998. The Code allows for discretion in sentencing, provides for increased penalties, and lowers mandatory prison thresholds.

A criminal code scoresheet is required for all felonies subject to the Criminal Punishment Code which allows for the calculation of minimum sentences through the use of a formula. This formula is broken down in a Criminal Punishment Code Scoresheet, pursuant to Florida Rule of Criminal Procedure 3.992(a). The scoresheet begins with points for the primary offense; the more serious the offense, the more points are assessed.  The ultimate computation is based upon many factors, including offense level, extent of injury to the victim, the prior record of the accused, whether a firearm is used and other factors.

Under certain circumstances, a downward modification of the sentence may be allowed, such as when the defendant is under the age of 21.

Hoffman, Larin and Agnetti PA has protected the rights of Florida residents for more than 35 years and is experienced in all areas of criminal Law. We are available for a free consultation for all your Florida criminal law questions at our offices in Miami-Dade, Fort Lauderdale (Broward County) and Monroe County (offices in Key West and Islamorada)