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Arrested? What to Expect

If you have been arrested, do not panic. Call Attorney Jonathan Torres. As a citizen you have many legal rights through the U.S. Constitution and Florida Constitution. You have the right to remain silent and to have an attorney. If you cannot afford one, then the court will provide one for you through the public defender’s office. NEVER waive your legal rights. Never hide your identity if not you will not be able to bond out of jail. Many times when a person is arrested, they are automatically given bail before they see an initial appearance judge. If that should happen to you, you may want to consider posting the bail if you can afford it. Jails are not pleasant. An initial appearance judge is supposed to see you within 24 hours of your arrest. At the Initial Appearance hearing, the judge will review the affidavit containing the charges against you and determine whether probable cause exists. The court can then set bail if appropriate. Usually, the court will leave the bail set to what the bond schedule calls for. However, a judge can increase or decrease the bail depending on the circumstances. The purpose of an Initial Appearance hearing is to make a determination as to whether or not there is probable cause to continue to hold you for the crime you have been arrested for. If the judge determines that there is no probable cause, the State can ask for an additional amount of time to establish probable cause. A judge may grant an additional 24 hours for the affidavits to be supplemented or the court can deny the State's request and release a person on their own recognizance. If a person is released because no probable cause was found, this does not mean that you were found not guilty. This means that the government cannot have you held in jail or admitted to bail pending the outcome of this case. The government can still later charge you with a crime.

If probable cause is found, then the court will consider what form of pretrial release to grant to you. In most crimes, you are entitled to reasonable bail. Exceptions do exist for crimes in which you are charged with capital offenses such as murder or other capital offenses. The court will consider such factors as the nature of the crime alleged, the ties you have to the community, your financial status, your criminal history and your risk of flight. The judge may place restrictions on your liberty if allowed to post bail and your attorney may be able to mitigate those conditions.

A person can either post a cash bond or they can hire a bail bondsman to post a bond for them. The advantage to posting a cash bond is that you can expect to get almost all of your money back if the charges are dismissed or you are found not guilty. The disadvantage to a cash bond is that you have to divest yourself of these funds until the case is completed. This can impact your ability to afford an attorney and pay other bills. Hiring a bail bondsman offers you the opportunity to post your bail with a much smaller amount of money out of your pocket. For example, if you were admitted to bail in the amount of $2,000.00. You could hire a bail bondsman for a fee of around $200.00 and they would bail you out. The disadvantage is that once you paid the bail bondsman the fee is nonrefundable.

If you are still in jail, then there are some important time lines to be made aware of. The first important number to remember is 21. A person in jail must be charged by Indictment or Information within 21 days of their arrest and if they are not and they are in custody, then a person is entitled to an Adversarial Probable Cause Hearing. This hearing is not optional if you demand it, even if the government files on day 22 the required documentation. This hearing is invaluable to you for the following reasons. First, the court is required to hold a hearing giving you the full benefits of due process, to wit: cross examination, the right to call witnesses, the right to remain silent, the right to testify on your own behalf. The State cannot simply rely upon a police report, the State will have to have witnesses to testify. Once again, the court will need to make a determination as to probable cause. The court may find no probable cause and release you on your own recognizance. Remember, a finding of no probable cause is not a finding of not guilty. You may still be charged with a crime by the government. The court may find probable cause but reduce your bail based upon the strength of the case against you. Of course, the court might increase your bail.

Many people find themselves unable to bond out of jail and they are still in jail thirty days after their arrest. Many times there is no demand made for an adversarial probable cause hearing. Sometimes, the government fails to formally charge a person with a crime within thirty days. The court is supposed to send notice to the prosecutor's office that unless charges are filed by the 33rd day, the court will release a person on their own recognizance. The reality is court's often don't notice that a person is in jail for thirty days without being charged. Your attorney, however, should be aware that you are still in jail and not charged. Ideally, your attorney should file a motion to have you released and this motion should be filed on the thirtieth day if you have not been formally charged with a crime. The court will hold a hearing on the 33rd day and determine whether or not a charging document is in the court file.

At your 33 day hearing, the court will check the court file and see if a charging document has been filed. Often times, the documents have been filed and you will be returned to your cell. Sometimes, there will not be a charging document filed by the 33rd day. The court is obligated to order your release on your own recognizance unless the government can show good cause as to why the document has not been filed. The court can grant an extension for seven days. However, in no event may a person be held without a charging document for more than 40 days. Experienced attorneys will alert their clients to this situation and sometimes advise their clients to sit it out and wait until day 41 to file a motion for release. The law is clear that you must be released if no formal charges have been filed within 40 days.

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