How can someone charged with a felony in Tampa Bay, Florida find the best way to have that felony dismissed? A surprising number of cases can be dismissed if action is taken early to make sure that all the conditions necessary for having the case subject to dismissal are met. Your criminal defense lawyer must understand how the dismissal proceeds and be ready to implement the necessary negotiations with prosecutors to make certain that your case falls within the necessary parameters.
In Florida every county by law has some form of Pretrial Intervention which allows for certain misdemeanor and even some felony charges to be subject to a motion for dismissal. In Clearwater, Florida the Pretrial Intervention Program (also known as PTI) is administered by the State Attorney’s Office. This is one of the best way to avoid Florida’s very strict sentencing guidelines.The prosecutors at the State Attorney’s Office have set up the following conditions for acceptance into the PTI program:
- The law enforcement agency which made the initial arrest must agree that the defendant is suitable for the program.
- The victim must agree to the allow the defendant into the program.
- The State Attorney’s Office must make a determination that the public interest is best served by the charges being dismissed.
- The requirements of PTI must be completed.
- Typically the defendant must serve a probationary period of at least six months for a misdemeanor and a year for a felony. During that time other requirements such as counseling, therapy or educational programs must be met. Further, there can be no other arrests nor trouble with the law during that period.
- The charged misconduct usually must be nonviolent though there are exceptions for particular cases such as battery or domestic violence where the need for counseling that could avert future violence may outweigh the need for punishment.
- For a felony the charge must be filed as a third degree felony rather than a first or second degree felony.
Domestic Violence cases and drug cases may be tracked within the domestic violence court and the drug court, otherwise the set conditions and restrictions for PTI remain similar no matter the underlying charged misconduct. After the period of probation is successfully completed the presiding judge will grant a motion from the State Attorney’s Office to dismiss the misdemeanor or felony case.
Dismissal of the case is often the best possible outcome that one can hope for in any type of criminal case. Yet the price for that dismissal is that you admit that you committed the underlying offense, you are punished with probation and during the year or six months of probation your life is in limbo. These are not always easy things to square with the notion of justice and fairness if in fact you did not commit the charged misconduct. Clearly it’s important for your Clearwater criminal defense lawyer to undertake a complete review of the facts and circumstances of your case to determine not only if you broke the law but if there are other less painful remedies available even if your case could be suitable for the Pretrial Intervention Program.
This Blog recently received a question from a father asking if his son’s drug probation could be terminated early. Your favorite Clearwater Criminal Defense Attorney told him that in St. Petersburg, Largo and Tampa Bay, Florida a Judge will rarely, if ever, grant a motion to terminate probation until the Defendant has successfully completed at least have of the probationary period.
|Cezanne, Portrait Artist’s Son, 1890
Once half of the probation period has been completed the Judge will ask the probation officer at a hearing if all of the terms and conditions of the probation have been met successfully, including any restitution for the victim, court costs, fines, court ordered classes, counseling and mowing the Judge’s lawn. Being poor will no longer result in a violation, but the Court will not terminate a probation where money is owed under the conditions of the probation.
Beyond the statutory Florida standard terms and conditions of probation the Judge at sentencing may have imposed other special conditions either required by Florida Statutes or imposed due to the facts and circumstances of the case; these requirements must also have been met.
If all of the conditions of the original probation have been met, the Judge will look to the following factors to determine whether to grant the motion:
- The nature of the underlying offense. Was the underlying offense a violent crime, a sexual crime or a crime that put others at risk?
- Is the community in need of having the Defendant watched by a probation officer?
- Is the Defendant likely to commit another crime?
- Has the Defendant been punished sufficiently?
Once the probation has been terminated If you have a family member who needs help with probation issues call a Clearwater Criminal Defense Lawyer.
The Florida Supreme Court recently held in Del Valle v. State that before a Judge can revoke probation and incarcerate a Defendant for failure to pay, the Judge must first make inquiry into the Defendant’s actual ability to pay. Even your favorite Clearwater Defense Attorney is heartened that being poor is no longer a crime in Florida.
The Judge must determine in a hearing: Did the Defendant have the ability to pay or did the Defendant willfully refuse to pay. Under Florida law, the trial court must make its finding regarding whether the probationer willfully violated probation by the greater weight of the evidence. The Judge must do this in a hearing where the Defendant can provide evidence because an automatic revocation of probation without evidence presented as to ability to pay to support the trial court’s finding of willfulness violated due process. Although it is constitutional to place the burden on the Defendant to prove his inability to pay, the aspect of section 948.06(5), Florida Statutes, that required a Defendant to prove his inability to pay by the heightened standard of clear and convincing evidence was unconstitutional.
Probation reduced by Pinellas Crime Attorney
Bar Journal Article on clear and convincing evidence
Excellent Discusion of State v. Del Valle as affecting State v. Adkins
Public Information – Oral Argument
It’s far better to be poor in Clearwater, Florida than rich in England… at least in Tampa Bay there’s much more sunshine.
Old Beggar, 1916, by Louis Dewis, painted just outside his clothing store in Bordeaux, France.
To the credit of our local Judges and attorneys, Pinellas County has instituted a reasonably enlightened treatment for some drug offenders (see below for qualifications). It would almost be enough to make even a jaded Clearwater Drug Defense Attorney smile were it not for the fact that the rules for the Drug Court Program allows prosecutors rather than Judges to determine who can be accepted into the program — wouldn’t it make more sense for an impartial Judge to decide who is worthy of the program and to expand the ability of Judges to dismiss or reduce charges where appropriate.
The cooperative effort of a team approach is a hallmark of the Sixth Judicial Circuit Adult Drug Treatment Court in Clearwater Florida, Pinellas County. It is a court-supervised, comprehensive drug treatment court for non-violent defendants, I guess that leaves me out. This is a voluntary program requiring frequent appearances before the Drug Court Judge, substance abuse treatment and frequent, random testing for substance abuse.
1. Successful completion of the Adult Drug Treatment Court plan may result in the dismissal of charges against defendants entering the program through Pre-Trial Intervention (defendants facing a first-time, non-violent, third-degree felony charge and admitted to Drug Court at the sole discretion of the State Attorney).
2. For defendants entering the Drug Court as a condition of probation (post-plea drug court), successful completion may result in adjudication being withheld and/or a reduced length of probation.
3. All participants are required to make frequent court appearance (judicial reviews). Participants will appear before the drug court judge every 30 to 45 days.
4. Drug court is a 24-month program. After completion at least one year, persons who have completed treatment, remained drug free and completed all of their requirements of Pre-Trial Intervention or probation may petition the court for a dismissal of the charges (Pre-Trial Intervention) or early termination of probation (post-plea drug court).
Pinellas County Drug Court
Most Recent Drug Court Stats from Pinellas
Florida State Courts
Drug court a success: research – National – smh.com.au
A recent painting depicts a Pinellas County Prosecutor making impartial decisions on which Defendants will be eligible for Drug Court in Clearwater, Florida.
|Picasso The Absinth Drinker 1901. What? Can you repeat that?