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Criminal Law Overview


LHJ LAW believes the law is both a shield and a sword for a client. As a shield, an attorney should use it to protect against the government wrongfully stopping, searching, arresting, trying and convicting a client. As a sword, it provides an attorney with the means to attack the reason or manner in which the government performed any of the aforementioned activities.  The Florida Constitution, Florida Statutes, Florida Rules of Criminal Procedure, Florida Evidence Code, and Case Law are each spheres of influence with provisions to be used for the benefit of a client.



Florida Statutes


The Statutes outline a plethora of actions that can result in criminal charges under the law. Every action deemed to be criminal is described in terms that explain the conduct (elements) that must be present and sufficiently proven(beyond a reasonable doubt) before a conviction can stand. All defenses should be built around the elements and whether the government can prove each of the elements beyond a reasonable doubt.


There are two types of criminal charges. The first type of criminal charge is called a misdemeanor. The second type is called a felony. A misdemeanor can be a second-degree crime for which the maximum penalty is a definite term of imprisonment not exceeding 60 days, or a first-degree crime for which the maximum penalty is a definite term of imprisonment not exceeding one year. A felony is a crime for which the penalty may exceed one year imprisonment in Florida State Prison (F.S.P.) up to a maximum of life or the imposition of a sentence of death. There are several levels (degrees) of felony charges. The degrees are as follows: third degree (up to 5 years in F.S.P.), second degree (up to 15 years in F.S.P.), first degree (up to 30 years in F.S.P.), life (the remainder of one’s natural life) and capital (imposition of the death penalty).

The Florida Legislature created various sentencing statutes that work in unison.  The Statutes are designed to maintain uniformity in sentencing throughout the State. The main provision utilized to maintain fairness and uniformity is called the Criminal Punishment Code. An individual who is charged with a felony can look to the Score Sheet to determine how many points have been assessed against him or her and the minimum prison sentence he or she is facing. A person charged with a crime will know how many points are assessed based on the type and severity of the charges. He or she will also be aware of the points that are assessed for other items such as the extent of his or her prior record or the extent of any injuries to an alleged victim as a result of the alleged criminal conduct. There are circumstances wherein a person may be at risk of receiving enhanced penalties under other criminal statutes. Examples of an enhanced sentence include a “Minimum Mandatory” sentence or classification as a “Prison Release Re-offender,” or a “Habitual Felony Offender.” There are other classifications not listed here. When an individual has been, or is, at risk to be re-classified, the stakes are raised much higher.



Florida Rules of Criminal Procedure

The Florida Rules of Criminal Procedure were created to govern case progression from beginning to end. There are many opportunities for a defense attorney to utilize these rules to ensure that his or her client’s case and rights are properly handled not only by the prosecutor, but by the judge and jury as well.



Florida Evidence Code

The way in which facts are presented to a judge or jury are controlled by statutes commonly referred to as the Florida Evidence Code. To a non-lawyer these rules may appear constricting. They are designed, however, to ensure that the facts (proof) used against an accused have been sufficiently sanitized so as to provide a judge or jury with only those facts that will allow them to make a fair assessment of the case and render a true and just verdict.

The Florida Evidence Code identifies the ways to correctly admit testimonial evidence and demonstrative (physical) evidence during a hearing or trial. If the method used by an attorney to admit evidence at a hearing or trial is not correct, the opposing attorney will rise and say the word “objection” followed by the code provision or nature of the objection based upon the applicable code provision. The offending attorney will sometimes get the chance to explain why the objection should be overruled (not be upheld) and why the evidence should come in.  The attorney making the objection will sometimes get the opportunity to argue why the objection should be upheld (sustained). The judge always makes the decision. Before making an objection, the attorney must quickly decide if the information is detrimental to his or her client’s case. If it is not a detriment to the case, the attorney may strategically decide not to “object” even if the objection may have been sustained. Below are a few of the classic objections that an attorney will consider:

“Relevance“ Objection:

This objection is generally made when evidence, or what appears to be forthcoming evidence, does not tend to prove or disprove a material fact of the case.


“Leading” Objection:

This objection is generally made against the attorney who has called, and is questioning, his or her own witness. A leading question is defined as a question in which the desired answer is contained within the question.


“Hearsay” Objection:

This objection is made when an out-of-court statement is repeated in court for the purpose of claiming that the content of the out-of-court statement is true. There are many exceptions to this rule which are often the cause of legal arguments outside the presence of the jury.


“Speculation” Objection:

This objection is made when a witness is asked a question that requires the witness to guess as to the answer.


“Prejudice Outweighs Probative Value” Objection:
This objection is made when evidence that may be relevant is offered by a party, but the opposing side believes the introduction of the evidence to the jury would have such a prejudicial effect that the jury could no longer be fair and impartial. The feared result is a verdict that is not based upon the facts and the law but upon the animosity felt by the jury against the party.


“Authentication” Objection:

This objection is made when physical evidence or a written document is offered as evidence during a trial, but the offering attorney has not shown that the item in question is in fact what the attorney claims it to be.

Case Law


The interpretation of how to apply the Criminal Statutes, Criminal Rules of Procedure and the Evidence Code is made by the trial-level judge. When a defendant, and in some situations a prosecutor, is displeased with a decision of the trial judge or a jury verdict, an appeal may be made to a higher (appellate) level judge or panel of judges. The appellate court’s decision and the rationale for the decision are often published so that future litigants and judges with similar facts and issues can examine the decision and rationale and use them to help assess their own case. These decisions are referred to as “case law.”  There are legally defined circumstances when a prior decision of an appellate court must be followed by the trial-level judge, the prosecutor and the defense attorney. There are other instances when case law is not binding on the trial judge, prosecutor or defense attorney but is used by them to guide their decision-making process. The trial judge uses an appellate case to help him or her make a ruling. The prosecutor and defense attorney will use the prior case to strategically plan the presentation of their facts during a trial or legal argument during a motion hearing. It is very important that a defense attorney not view case law as black or white. There may be a written decision of an appellate court where the facts are not very similar to a client’s case but may still be valuable to the attorney because one line of reasoning in the prior case may be directly applicable to the heart of a client's case.