Attorneys

What to look for when selecting an ethical Criminal Law  Attorney:

Remember, when you hire an attorney you are paying for a service and you should be satisfied with the quality of that service. They should return your phone calls promptly, communicate with you personally and keep you updated on the status of your case. The attorney should also discuss the terms of your contract, including fees, up front. If you believe your attorney's performance is less than stellar, realize that you can replace them at your own discretion.

Interview them to decide which attorney you would like to handle your case. This interview takes place at an initial consultation. Don't expect your case to be solved during this visit. Consultations usually last 30 minutes so be prepared. Here are a few tips to get you ready.

• Write down your story, in your own words before your meeting to organize all of your thoughts;

• Make sure to bring copies of any documents that may affect your case;

• Give your attorney any names or dates that affect your case so the attorney has an idea of who is involved;

• Be prepared to answer all the attorney's questions; the attorney knows which questions to ask to help you;

• Always tell the truth even if you think some details may hurt your case.

• Don't lie or exaggerate the facts;

• Avoid becoming too emotional;

• Make sure you feel comfortable before leaving the attorney office. Don't be afraid to ask questions.

Questions to ask an attorney:

1. How long have you been in business?

2. Do I need legal representation for my problem?

3. Have you handled cases like mine in the past?

4. What have results been on my type of case?

5. Will you be handling my case personally? If not, what kind of work will you be doing and who will be doing the rest of the work?

6. How available are you for meetings and phone calls?

7. How do you handle fees? Get a written retainer including:

   • Charges: Do you charge by the hour, a flat rate or contingency?

   • Services that are included

   • Extra fees that will be assessed

   • How you will be billed

8. What are the possible outcomes in cases such as this?

9. How long do you expect this matter to take?

10. What are my alternatives?

11. Do you recommend arbitration or mediation?

Important Consumer information for Criminal Law:

Attorney-Client Confidentiality

The attorney-client relationship begins when the attorney is retained.  Everything the client tells an attorney, employee, volunteer or intern of the law office is confidential, governed by the attorney-client privilege under Section 90.502, Florida Statutes, and cannot be revealed without the client's consent.

It is important to understand that the client’s conversations with a spouse, family, friends, other prisoners, news reporters, police, probation and corrections officers are not subject to the attorney-client privilege and can be used against the client in court.

Arrest

After a police officer has placed a person under arrest, the officer transports him to a jail facility for booking.  After processing, the person usually can post the standard bond amount and be released. However, if the individual cannot pay the required money, or was arrested for a domestic violence charge, a violation of probation, or a “non-bondable” offense, he will remain in jail and be taken within 24 hours for a first appearance hearing before a judge. A person arrested for a bench warrant (also known as an alias capias) will not be allowed to post bond and must appear before a judge.

When Will I Get out of Jail?

Mandatory Detention on Domestic Violence Charges

When a person is arrested on a misdemeanor domestic violence charge, the case is sent to the Domestic Violence Division (DVD) of the County Court. Domestic violence offenses are primarily assaults or batteries, stalking, and violation of injunctions between husbands and wives, boyfriends and girlfriends, people who live together, or people who have a child together. Laws applying only to domestic violence offenses require the defendant to remain in jail until the first appearance hearing. The defendant will not be allowed to post bond until after the hearing.

Bond Hearing

The purpose of the first appearance and bond hearing is for the judge to: Advise the defendant of the charge(s); Determine if the police had probable cause to make the arrest; Determine whether the defendant can pay for an attorney, and, if he cannot, appoint the Public Defender; and, Set conditions of pre-trial release from jail, if applicable. At the hearing, the judge sets conditions of release to ensure the defendant’s presence at future court hearings and to protect the community. The conditions are based on the charges, the defendant’s ties to the community, prior criminal history, and other relevant facts. It is often important for the defendant to have his family, friends or employer speak on his behalf.

In domestic violence cases, the judge will also issue an order that prohibits any contact between the defendant and alleged victim. If the alleged victim appears at the hearing, testifies on behalf of the defendant, and proves to the judge that no threat of harm exists, the judge may decide not to issue the order. If the defendant cannot post bond and remains in jail, the defendant will be scheduled to appear at a Domestic Violence Division Jail Report hearing within four days.

Pre-trial Release

A defendant is presumed innocent until the prosecutor proves guilt beyond a reasonable doubt. At this stage in the process, the prosecutor has not proven anything and the defendant is supposed to be treated as an innocent person. Following this principle, Florida law gives the defendant the right to be released from jail prior to the trial. However, there is no right to pre-trial release in cases where the person is arrested for a “non-bondable” offense. To determine whether the defendant should be released, the judge may ask about the length of time that person has lived in the area, whether the defendant has a job, has family members living in the area, has a past criminal record or has been released on bond previously and appeared in court as required. The judge may release the defendant on his own recognizance, on monetary bond (either cash or surety bond through a bail bondsman), on monitored release (electronic monitoring device or bracelet), to the custody of a responsible member of the community or to a drug program or mental health facility.

Pre-trial Detention on “Non-bondable” Offenses

If a defendant is arrested for a “non-bondable” offense, such as murder, sexual battery or kidnapping, the law presumes that the defendant will remain in jail pending trial. A person arrested for a “non-bondable” offense has the right to ask for an Arthur hearing. The purpose of the hearing is for the judge to determine whether the person should be released pending trial.

Filing of Formal Charges

The State Attorney’s Office (the State) has sole discretion to file formal criminal charges. The State may file charges even if witnesses do not want to testify against the defendant or do not want to proceed with the case.

For felonies, the charging document most commonly used is called an “information.” The prosecutor has 30 days from the date of arrest to file the charging document. On the 30th day, if the prosecution does not have a charging document, the court will order that the defendant be released on his own recognizance by the 33rd day, unless the state attorney files charges by that date. If the prosecution shows good cause, it can request to have the defendant remain incarcerated until the 40th day. No individual shall remain in custody for more than 40 days if no charging document has been filed.

Another way a person can be charged with a violation of law is by “indictment," a formal document issued by a grand jury usually charging a felony punishable by the death penalty or life imprisonment. It is based upon the facts and circumstances of a case as presented to the grand jury by the prosecution. A grand jury is composed of 21 citizens who have been selected from countywide voter rolls. A grand jury has broad powers to investigate a wide range of criminal offenses and to examine the performance of public officials and public institutions. Its deliberations are conducted in secret, in conjunction with the State Attorney. After hearing evidence presented by the prosecution, the grand jury decides whether charges should be filed and, if so, what those charges should be.

Arraignment

Arraignment is a court hearing at which the prosecutor announces whether the State is filing charges. If the State files charges, the judge explains to the defendant the nature of the charges and asks him or her to respond to the charges by entering a plea of guilty, no contest, or not guilty. If the client pleads not guilty, the case is scheduled for trial.

I’ve Never Been in Trouble Before

Pre-trial Diversion Programs

A client charged with his first offense may be eligible for participation in the pre-trial diversion program. The State Attorney’s Office has established pre-trial diversion programs as an alternative to formal prosecution. Criteria for these programs are strict, and acceptance depends upon the approval of the victim, arresting officer, prosecutor and judge. If the client agrees to enter the diversion program, the client will have to give up his right to a speedy trial and may be required to attend classes, perform community service, pay restitution, or meet other conditions. Upon successful completion, the prosecutor dismisses the charges. If the client does not complete the program, the case will be returned to court for trial.

Drug Court

Clients charged with felony possession and/or purchase of a controlled substance, may be eligible for the Drug Court diversion program. 

How Will an Attorney Prepare My Case?

Defense Case Preparation

If the case is set for trial, the defense attorney will begin preparation by filing motions, investigating allegations and other aspects of the case as well as, deposing and interviewing witnesses. The client has the right to assist in the preparation of his own defense. One of the most significant ways a client can assist in the preparation of his defense is by providing the defense attorney with the names and addresses of witnesses not listed by the prosecution, who can testify to circumstances that may prove the client is not guilty or help show that the crime was not as serious as the prosecutor contends. The client and his family must not contact the alleged victim or the witnesses listed by the prosecution or send other people to talk to them because the prosecutor may charge the client with an additional crime of tampering with witnesses. It is the defense attorney’s job to speak to the witnesses and alleged victim. The defense attorney may file motions requesting the witness list, police reports, witnesses' statements, reports of experts and any other evidence in the case.

The process by which the prosecution and the defense search for the facts of the case is called “discovery.” The deposition of witnesses is a discovery tool for uncovering the facts. In a deposition, the prosecutor and defense counsel are present to take the sworn statements of witnesses. Discovery depositions are very useful for both sides because it allows them to evaluate the strengths and weaknesses of the case prior to trial. The defense attorney may speak with the prosecutor to get some idea of the prosecutor’s evaluation of the case. Depending on the strength of the defense’s case, the prosecutor may decide to dismiss all charges, offer a lesser sentence or drop some of the charges against the client in exchange for a plea of guilty or no contest to other charges. In nearly 98% of felony cases, there is no trial. Cases are disposed of by the prosecutor not filing charges, the case being dismissed or the client entering a guilty or no contest plea or completing a diversion program.

 I Want to Get this Case over With, What Can I Do?

Guilty and No Contest Pleas

A client can change his plea of not guilty to either “guilty” or “no contest” at any time. A guilty or no contest plea can also be negotiated between the prosecutor, the defense attorney and the client. In exchange for the client’s acceptance of the negotiated plea, the prosecutor may drop or reduce charges, or agree to a lesser sentence. If the prosecutor makes a plea offer, the defense attorney has an ethical duty to tell the client about the plea offer, even if the client has previously told the attorney that he wants to go to trial. Before accepting the guilty or no contest plea, the judge will question the client to make sure that he understands his rights; there was no improper pressure to accept the plea; the client knows what he is doing; he voluntarily agrees to the plea, and evidence in the case supports a finding of guilt. The client has the right to accept or reject a plea offer. If the judge accepts the plea, the judge will then proceed to sentence the client. When the client pleads guilty or no contest, the client gives up significant rights and may face serious consequences. 

Consequences of a Guilty or No Contest Plea

When a client enters a guilty or no contest plea, he relinquishes certain rights, such as the right to:

• Investigate the case further
• Proceed to trial
• Be tried by a jury
• Have an attorney represent him at trial
• Compel the attendance of witnesses at trial
• Confront witnesses who testify against him
• Testify at trial
• Remain silent at trial
• Appeal

Non-U.S. citizens may face deportation as a result of being found guilty of committing a crime. Felony and misdemeanor convictions, and under some circumstances juvenile adjudications, can be used to enhance state and federal sentences. Everyone convicted of a felony in Florida has to submit their DNA for it to be included in the state’s DNA database. A conviction could impact a person's ability to work, live in public housing or rent an apartment, and obtain college grants or scholarships.

Additionally, convicted felons lose access to certain federal benefits, the right to vote, serve in the military, own or possess a firearm, hold public office, serve on a jury and may have a difficult time obtaining a job because in Florida criminal court records are public records. In most cases, a convicted felon can apply to have his civil rights restored through the clemency process after completing the sentence.

Probation

Probation is an alternative to being sentenced to jail or prison, and as such carries significant limitations on the client’s liberties. The judge, using the sentencing guidelines (also referred to as the punishment code), may sentence a client to probation or community control (house arrest) instead of — or in addition to — serving time in jail or prison. A felony probationer is under the supervision of the Florida Department of Corrections and must abide by its rules until the sentence is completed. Probation may take the form of community control, an intensely supervised and restrictive program in which a probation officer makes regular unannounced visits to the probationer’s home and may electronically monitor the probationer’s movements. In addition to the visits, the probationer will regularly report to a probation officer, receive permission from his probation officer before changing addresses or jobs or leaving the county, and must not commit any new crimes or abuse drugs or alcohol while on probation or community control. If the probation officer believes that the probationer has violated any of the conditions of the probation, the officer can file an affidavit alleging the specific violations and may ask the judge to hold a hearing to determine if the probationer is in violation. A probationer can be arrested and held in jail pending the probation violation hearing. At the hearing, if the judge finds that the probationer violated the terms, the judge may revoke the probation and sentence the client to jail or prison or extend the probationary period. If the judge finds the probationer did not violate the terms of probation, the probationer is restored to probation.

Trial

A trial is the “fact-finding” phase of a case and is held to determine the guilt or innocence of the defendant. It is the prosecution’s burden to prove the client’s guilt beyond a reasonable doubt. A defendant is not required to prove his innocence, present any evidence nor call or cross-examine witnesses and has the right to decide whether to testify. There are two types of trials: bench and jury. In a bench trial the judge decides issues of fact without a jury, while in a jury trial, jurors resolve disputed facts.

Bench Trial

A bench trial in criminal court can only occur when the prosecution and the defense agree. In a bench trial, there is no jury because the judge is the fact finder. The judge hears opening statements, the presentation of evidence and closing arguments, and then decides whether a crime has been committed and whether the client is criminally responsible as charged.

Jury Trial

A jury trial is where a judge presides, and six or twelve eligible county residents are selected to hear the case and make a finding of guilt or innocence. The jury, not the judge, is the fact finder. During jury selection the judge, prosecutor and defense attorney question prospective jurors and then select the jury. The trial begins when the jury is sworn. Although every trial is different, there are specific elements that make up the proceeding.

A jury trial starts with opening statements from one or both sides. Opening statements tell the jury what both sides expect the evidence will show. The prosecution must call witnesses to testify and/or introduce physical evidence because it has the burden of proving the case. The defense attorney may cross-examine the prosecution’s witnesses and challenge its evidence. After the prosecution presents its evidence, the defense attorney may ask the judge to dismiss the case (motion for a judgment of acquittal) because the prosecutor did not present enough evidence to show that the client committed the crime for which he was charged. If the judge grants the motion, the case is over. If the judge denies the motion, the defense attorney may call defense witnesses and introduce evidence.

Because the State has the burden to prove that the person committed the crime, the defense does not have to present its own case. The client may testify or choose not to testify. After all evidence is presented, each side presents closing arguments to the jury. The judge then instructs the jury regarding the laws and rules that they must consider during their deliberation. The jury meets alone to review and discuss the admissible evidence until they reach a unanimous decision (verdict). If the jury cannot unanimously decide, the judge can declare a mistrial (hung jury). If a mistrial is declared, the judge may reschedule a new trial for a later date. If the jury finds the client guilty, it is then up to the judge to proceed to decide the sentence to be imposed. In death penalty cases, the jurors also participate in the sentencing phase. The jurors are presented evidence and arguments so they can make a recommendation to the judge to impose the death penalty or to sentence to life imprisonment.

Sentencing

Sentencing is the stage at which the judge imposes punishment after a finding of guilt that resulted from a trial, or entry of a plea of guilty or no contest by the client. The judge may order the Florida Department of Corrections to prepare a pre-sentence investigation (PSI) report and postpone sentencing until after the report has been submitted and reviewed.

The PSI includes information about the case and circumstances of the crime, any prior criminal record, the client’s reputation in the community, education, employment, health and background of the client’s family. The PSI may also include the client’s lifestyle, behavior pattern and general attitude. When the PSI is completed, the defense attorney reviews it with the client and prepares for the sentencing hearing. The defense attorney can have doctors or other experts evaluate the client and prepare a sentencing report with recommendations to be presented to the judge.

The defense attorney should know in advance the names and addresses of people who want to speak at the sentencing hearing on behalf of the client. At the sentencing hearing, the client has a right to speak and have the defense attorney make a presentation. The judge then informs the client of the finding of guilt and imposes the sentence, which can range from suspending the sentence, or a probation term, to the maximum jail or prison time allowable by law. The judge can, and, in some cases must, require the client to pay restitution to the victim and attorney (public defender) fees and court costs.

In capital cases, the maximum sentence is death and the law provides for a sentencing process that involves jurors making a recommendation to the judge regarding whether to impose the death penalty.

Appeals

A client has no right to appeal a plea of guilty or no contest, except when the judge allows him to reserve the right to appeal a particular point of law. A client who is convicted at trial and wants to appeal the conviction must file a notice of appeal within 30 days of being sentenced and must advise the appellate court of the exact errors in the trial. The client or the defense attorney must convince the appellate court that the trial judge’s errors affected the outcome of the case. Some common errors are that the judge did not follow the law or that the client was prevented from exercising his constitutional rights. In some cases, the judge may allow the client’s release on bail until a final decision by the appellate court. The judge will set a bond, pending the appeal, only if he believes the client has a good reason for appealing and that the client will re-appear in court. The client does not have an automatic right to bond during the appeal. It is possible that the client may serve the entire sentence during the appellate process.

 Can I Get This Case Off My Record?

Sealing & Expunging Arrest Information

Sealing a criminal record involves making a person’s criminal history inaccessible to the general public. However, city, county, state and federal government and agencies, including the police and military, will have access to and be able to review your criminal history records whether or not those records are sealed. Expunging a record involves the court ordered physical destruction or obliteration of a criminal history record or a portion of that record. It is very difficult to qualify to have a record sealed or expunged.

Law Office of Karen Mazzola

Karen Mazzola has been practicing law for almost two decades as both a prosecutor and legal counsel since 1989.

EXPERIENCE

·     Assistant State Attorney [Prosecutor] Seminole County-Felony Division Chief, Sex Crimes/Child Abuse Division, Trial Division Assistant

·     General Counsel, The Florida Department of Law Enforcement, Statewide-Criminal Justice Standards and Training Commission Officer discipline Section regarding Law Enforcement, Correctional and Correctional Probation Officers

·     Assistant State Attorney, [Prosecutor] Hendry/Glades Counties-Second in command of Office, Felony Division, Misdemeanor Division, Juvenile Division

KAREN MAZZOLA has personally handled thousands of criminal and juvenile cases of all types including: DUI, Domestic Violence, Burglary, Robbery, Sex Crimes, Child Abuse, Murder, Theft, Drug Offenses, Probation Violations, and a variety of misdemeanors. While a prosecutor, she trained as supervised other attorneys. As an Assistant General Counsel for the Florida Department of Law Enforcement (FDLE) in Tallahassee, she prosecuted law enforcement, correctional, and correctional probation officers in disciplinary actions across the state which culminated in the representation of cases against officers before the Criminal Justice Standards and Training Commission.

While at FDLE, Karen Mazzola trained several thousand sworn officers in the right to counsel, search & seizure, officer discipline, and courtroom testimony.

EDUCATION

·     Stetson University College of Law, Juris Doctorate, 1989

·     The Florida State University, Bachelor of Science, 1986

·     St. Petersburg Junior College, Associate in Arts, 1983

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