Strike While the Iron is Hot - Impacting the Prosecutor's Filing Decision

In the State of Florida, there are three types documents utilized to formally charge a person with a crime: (1) a citation; (2) an indictment; or (3) an Information. A citation is typically issued for misdemeanor traffic offenses, including DUI, and non-criminal driving infractions such as speeding or failure to wear a seatbelt. In this situation, the police officer who conducted the investigation will issue a citation to the accused person and file an identical copy with the clerk of court. Here, the prosecutor does not play a role in deciding whether the charge should or should not be filed; at the moment the police officer files the citation with the clerk, the person is formally charged with the offense for which it was issued. This does not mean, however, that the prosecutor who is thereafter assigned to the case cannot reduce the charge, as part of a negotiated plea bargain, or outright drop the charge if he or she determines that there is no reasonable likelihood of successful prosecution. The second type of charging document is an "indictment". Although any criminal offense can be charged by indictment, this type of document is typically reserved for first degree murder charges following a grand-jury recommendation that the indictment be filed. The third and most common type of charging document is called an "Information". The vast majority of misdemeanor and felony offenses in Florida are charged by information.

What most people don't realize is that a person, even if arrested by the police, is not formally charged with a crime unless and until the prosecutor files an Information with the clerk of Court. This process can happen in one of two ways. In the first scenario, the police officer will investigate a crime and not make a physical arrest. Sometimes the arrest is not made because the officer is not entirely sure the accused person has actually committed a crime, there are proof issues, or the officer cannot find the person. In this scenario, the police officer will meet with the prosecutor and present all the evidence the officer has obtained, including physical evidence, statements from witnesses, and sometimes statements from the accused. If the prosecutor determines that there is enough evidence to proceed, he or she will draft an Information and an arrest warrant and file both with the clerk. Once the accused person is located by police and taken into custody, the prosecution of that person commences. In the second scenario, the police officer will make a physical arrest of the accused person and take him or her to jail. The police officer will thereafter meet with the prosecutor and present the evidence. As is the case in the first scenario, the prosecutor will determine whether there is sufficient evidence to proceed. If so, he or she will file an Information, and the prosecution of the accused person commences. In either of the two aforementioned scenarios, if the prosecutor decides the evidence is insufficient, or there is otherwise not a reasonable likelihood of successful prosecution, he or she has the option of drafting and filing a document called a "No Information". If a "No Information" is filed, the accused person is not charged and the matter is dropped. If the accused was arrested on the charge and unable to post bond, he or she is released upon the filing of a "No Information".

In many jurisdictions outside Pinellas County, the prosecutor who makes the decision to file an Information or a No Information is not the prosecutor who is ultimately responsible for litigating the case to resolution. This is commonly referred to as "horizontal prosecution" and can be disadvantageous to a criminal defendant; a prosecutor may be less cautious in filing a charge when it will be the exclusive responsibility of another prosecutor after the decision is made. In Pinellas County, however, the prosecutor who makes the filing decision is typically the prosecutor assigned to the case until it is resolved. This is known as "vertical prosecution". At this early stage, the prosecutor does not know whether the defendant will exercise his or her right to a jury trial or elect to give up that right and enter a plea. A prosecutor is often reluctant to file a case where the likelihood of a guilty verdict is compromised by potential proof problems. Because of this, the prosecutor will almost always be open to hearing and considering information about the case from the defendant's attorney. There is usually a four to six week gap between the time the police officer meets with the prosecutor and the time the prosecutor makes the final decision to file an Information or a No information. It is during this gap in time that Tim and Don are able to have the most impact on the prosecutor's decision in your case. Once the Information is filed, the case can only be dropped by the filing of a "Nolle Prosequi" by the assigned prosecutor, which, in Pinellas County, happens in only the rarest of circumstances. If you are arrested, or think you may be arrested, any delay in retaining an attorney to advocate on your behalf could put you at a significant disadvantage. Often times, Tim and Don can have the most impact on the outcome of your case before the decision to file or not file an Information is made.

At The Law Office of Timothy Hessinger, we are uniquely qualified to assess the strengths and weaknesses of the State's case against you. Tim and Don spent a collective twenty one years as Prosecutors in Pinellas County making the very same filing decisions that the prosecutor will be making on your case. Having built thousands of criminal cases, Tim knows where to look for potential weaknesses that can, and often do, give them significant leverage to impact the prosecutor's filing decision. Even in cases where the proof of guilt is clearly evident, Tim is often able to provide information on a client's history of mental illness, substance abuse, or other mitigating factors which can also have a significant impact on the prosecutor's filing decision.

In some cases, impacting the prosecutor's decision may mean the filing of a "No Information". In others, it may mean the filing of a charge less serious than what the client was arrested for, which can also be of tremendous benefit to the client. For example, all felony offenses in Florida are "scored" on sentencing guidelines and are assigned a numeric value based on severity. Some offenses are assigned a numeric value above 44, which means they carry a mandatory prison sentence. In such cases, Tim immediately begins to seek out potential proof problems with the State's case and attempt to negotiate the filing of either a No Information or a less serious felony that does not carry a mandatory prison sentence. Intervention by Tim prior to the prosecutor's filing decision can also avoid a sex offender designation in certain types of cases as the State has the discretion to file alternative charges that don't require that designation as a consequence of the plea. Pre-filing negotiations can avoid extremely severe minimum mandatory prison sentences for other types of offenses such as those involving the use of firearms under Florida's 10-20-Life statutes. Many of the aforementioned penalties can also be completely avoided by the filing of a misdemeanor charge in lieu of a felony, which the prosecutor almost always has the discretion to do. For a person with no prior criminal record, this can be of immeasurable benefit as that person will also avoid a felony conviction.

With the stroke of a pen, the prosecutor has the power to forever alter the course of a person's life. Often times, the most effective plea negotiations are done before the Information is filed, if it is filed at all. For more insight on how we have been able to benefit our clients by impacting the prosecutor's filing decision, contact The Law Office of Timothy Hessinger.

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