Notice of Appearance | Initial Pleading

The first pleading that you should file in any case is your Notice of Appearance.

All in One Notice of Appearance

The example below is a “Combined Notice of Appearance.”  So it combines all of the following into one page:

  • Notice of Appearance of Counsel;
  • Waiver of Arraignment;
  • Written Plea of Not Guilty;
  • Demand for Discovery;
  • Reservation of Rights Pursuant to Florida Rule of Criminal Procedure 3.190(c);
  • Demand for a trial by jury.

This is a typical pleading that I file in the beginning of every case.  However, you may want to modify it according to your Judicial Circuit.

Know Your Local Rules and Policies

Some prosecutors state that you waive your client’s eligibility to enter into a diversion if you demand discovery.  Accordingly, you need to remove the demand for discovery if your client is seeking a diversion.  Some state attorneys require that a diversion be agreed upon at arraignment.  You need to remove the waiver of arraignment and written plea of not guilty if that is the case.  Consider submitting a Notice of Appearance without any of the other provisions if the state attorney has not filed charges.

You can still run into trouble filing standard forms if you do not know your local rules of procedure and the policies of the local state attorney.  So if you are just starting out, look before you leap.  The best thing you can do is to ask another attorney who has experience in that circuit.  Every attorney has his or her own forms that they use.  Look at those forms, you can use this one, use another form, but eventually, you will come up with your own.

Pay careful attention to motions and reservations of rights in the various forms you see.  Those are included due to an attorney’s past experiences.  These seemingly innocuous phrases represent “lessons learned” by that attorney.

This form is for use by attorneys only.  You need to file a waiver of the right to an attorney if you are representing yourself pro se.  While we are on that topic, I would like to remind you how much of a bad idea it is to represent yourself.

Download ( Combined-Notice-and-Demand-for-Trial-by-Jury.pdf, PDF, 11KB)

Speedy Trial | Written Waiver | Rule 3.191

Your right to a speedy trial is guaranteed in the Sixth Amendment of the United States Constitution.  Florida provides additional rights in Florida Rule of Criminal Procedure 3.191.  Both the constitutional right to a speedy trial and Florida Rule of Criminal Procedure 3.191 apply.

Speedy Trial?  How Long is too Long?

The constitutional right to a speedy trial does not define a certain length of time.  Florida Rule of Criminal Procedure 3.191 provides that a defendant must be brought to trial within 90 days of arrest if charged with a misdemeanor.  A defendant must be brought to trial within 175 days of arrest if charged with a felony. The defendant can move to have the case dismissed if the state fails to bring the defendant to trial within the 90 or 175 days.

Waiving Your Right to a Speedy Trial

The 90 and 175 day time limits do not apply if the defendant waives the right to a speedy trial.  There are many good reasons that a defendant would waive the right to a speedy trial.  Why a defendant would want to do so is another topic. However, typically it involves needing additional time to prepare or additional time to negotiate a resolution.

How to Waive your Right to a Speedy Trial

Most of the time, at least in my cases, an attorney has filed a wavier of appearance and the defendant will not be there for the calendar call. In that case, the attorney simply tells the judge that the defendant waives the right to a speedy trial.  That works most of the time.  The judge is essentially taking the attorney at his word that he has the client’s authorization to do so. The judge may place the defendant under oath and ask the defendant he or she understands the right being waived.  If the defendant is not at the calendar call, due to a waiver of appearance, some judges like for the file to contain a written waiver signed by the defendant.  Each judge is different.

Below is a written waiver of speedy trial in the event the judge asks you to supplement the file with a signed waiver.  There is no standardized form.  This is one that I created and have used on numerous occasions.  The is no rule that a written waiver needs to be notarized, but it is my personal preference to have it notarized.

The form is in fillable PDF format.  Please feel free to use, distribute, edit, copy, link to, etc.

Submitted by DUI Attorney Michael Dye.

Download ( Waiver-of-Speedy-Trial.pdf, PDF, 25KB)

Motion for a Continuance

Motion for Continuance

Why to Request a Continuance

The vast majority of continuances are due to time constraints. You can only be at one place at one time and there are only 24 hours in a day. Sometimes you just can’t get it all done. There are a lot of very good reasons to file a motion for a continuance. Your client could need additional time to complete a task. A witness might have cancelled a crucial deposition. You or a witness might have an emergency issue requiring out of town travel. I’ve even seen an attorney request a continuance, on the day of trial, because that attorney had just been arrested and had charges pending in front of that judge. He absolutely needed a continuance to have the case reassigned to a different division. We all understand that sometimes things happen in life that are outside of your control.

Don’t be a Lazy Lawyer

Nothing is more frustrating to a judge than to have a 2012 case on his or her docket in 2016. The judge’s frustration will grow exponentially if the attorney on the case sends in a coverage attorney to request a continuance because the attorney was out of town on business in Las Vegas. The bottom line is that you need to stay on top of your cases. It is stressful being a criminal defendant. Frivolously delaying the resolution to your client’s case is unethical and can take a real toll on your client’s wellbeing.

How to Request a Continuance

Florida Rule of Criminal Procedure 3.190(g) governs motions for a continuance. All motions for a continuance must be made prior to the matter being set for trial or for good cause shown after the case has been set for trial. Try to notify the judge as far in advance as you can. In Florida, each judge handles a motion for a continuance differently. As a general rule of thumb, always put the motion in writing and always try to get the state to agree to the continuance.

Motion for a Continuance | Technical Requirements & Suggestions

  • Must have certificate of good faith;
  • Must state good cause or facts unknown at time if the trial date has already been set;
  • Do not throw the other attorney under a bus or “cheap shot” opposing counsel because he/she does not agree to the continuance;
  • A procedural history is technically not necessary, but it is a really good idea.  Be sure to mention prior continuances and why those were granted;
  • Check with the judicial assistant to see if the judge requires a hearing and if there are any other division specific requirements.

The following are two samples of a Motion for a Continuance pursuant to Florida Rule of Criminal Procedure 3.190(g).

Agreed Motion for a Continuance

Download ( Agreed-Motion-for-Continuance-Criminal.pdf, PDF, 119KB)

Motion for a Continuance | Not Agreed or Not Known

Download ( Motion-for-Continuance-Criminal.pdf, PDF, 121KB)

Vehicle Immobilization for Florida DUI| Florida Statute 316.193(6)(a)

Penalties for Driving Under the Influence

Vehicle immobilization is one of the penalties for driving under the influence in Florida.  While the statutory language says that vehicle immobilization is mandatory, there are several exceptions. The penalties for driving under the influence are found in Florida Statute 316.193. Pursuant to Florida Statute 316.193(6)(d), the court must order the immobilization of a vehicle upon the defendant’s conviction for driving under the influence.  For a first offense, the vehicle to be immobilized can be either the actual vehicle driven at the time of the arrest or any one vehicle registered in the defendant’s name at the time of the immobilization.  Second and subsequent offenses require the immobilization of all vehicles owned by the defendant.

Length of Immobilization

  • First Offense: Ten (10) days;
  • Second Offense: Thirty (30) days;
  • Third or subsequent Offense: Ninety (90) days.

Waiver of Vehicle Immobilization

Florida law provides multiple exceptions concerning vehicle immobilization.  Those are as follows:

  • Stolen vehicle used in the offense;
  • Purchase of vehicle subsequent to DUI arrest.  Vehicle must not have been purchased from the defendant or defendant’s agent;
  • Vehicles operated solely by the defendant’s employees or by employees of any business owned by the defendant;
  • Ignition interlock installed on all vehicles individually or jointly owned by the defendant;
  • Family of the driver has no other means of public or private transportation.

Practice Point

This tip is not exclusive to criminal law or any type of motion and/or pleading.  You should always use a verified motion when you make an allegation based upon representations made to you by your client.

Below is a motion to waive the vehicle immobilization due to no public or private transportation being available to the family.

Download ( Motion-to-Waive-Immobilization.pdf, PDF, 199KB)

 

Motion to Withdraw Capias

Motion to Withdraw Capias

Florida Courts definitely love their Latin phrases.  The English translation for the Latin word “capias” is “that you take.”  It is a descriptive term for many different types of writs.  All of the writs have one thing in common and that is to take a person into custody.

Some clients don’t show up for court.  Dealing with that is simply part of the job description for criminal attorneys.  Knowing this fact, it is no surprise that I would recommend that you keep copies of all emails, text messages, letters and write a brief note in the case file after each conversation.  Why?  You want to be able to document the date and time when you informed your client of his/her court date.

A warrant will be issued for your client’s arrest if he or she happens to miss a court date.  In Florida, at least the part of Florida where I practice we call the warrant a capias.  You will need to file the following motion in order to get the capias “set aside,” “quashed” or “withdrawn.”  Check with the Judge’s assistant to see if the Judge has any type of special requirements for these motions.  Some judges require that the defendant personally appear for the hearing on this type of motion.

This motion is uploaded in docx file format for easy editing.

Download ( Motion-to-Withdraw-Capias.docx, DOCX, 13KB)

 

Motion for Depositions

Motion for Deposition

Florida is one of the few states that permits depositions in criminal matters. As an attorney, I would encourage more states to permit taking depositions in criminal matters. Depositions close cases. In most circumstances, a deposition lets one side know that this is not a good case for trial.

In Florida, depositions in criminal proceedings are controlled by the Florida Rules of Criminal Procedure, specifically Florida Rule of Criminal Procedure 3.220(h). A DUI attorney can take the deposition of any witness listed as a category “A” in the state’s discovery exhibit as a matter of right. However, most DUI’s are misdemeanors. The ability to take a deposition in a misdemeanor case is controlled by Florida Rule of Criminal Procedure 3.220(h)(1)(D) which requires that the DUI attorney file a motion with the court stating the names of the individuals to be deposed and why it is necessary to the case.

Some County Court judges simply grant the motion without the filing of a written motion. Several Judges will just say “motion to take depositions is granted” at the first hearing. Some jurisdictions, such as Broward County, the judges almost always permit depositions in DUI cases. However, it is very rare in Miami-Dade County.

Below is a Motion for Depositions for use in a misdemeanor DUI case(or any other misdemeanor case where depositions are needed). The form is a fillable PDF so feel to download the form as is and use it as a template or make any modifications necessary.

Download ( Motion-for-Deposition.pdf, PDF, 98KB)

Order on Motion for Depositions

As previously stated, some Judges will grant these motions without the defense attorney having to file a motion. Some judges will grant the motions without a hearing. Some Judges require a hearing. First, make sure that you check with the State Attorney to see if he/she has any objection to the motion. Second, call the judge’s judicial assistant to see if the judge is going to require a hearing. If the State objects or if the judge requires a hearing, you will need to get a hearing date and file a Notice of Hearing. At the hearing, bring copies of the orders with you. Note: Copies is plural. That means more than one. At the very minimum bring a copy for the state, a copy for the clerk and a copy for yourself. Bring an extra with you just in case. Remember to always provide the judge room to write additional provisions into the order.

Download ( Order-on-Motion-for-Depositions.pdf, PDF, 214KB)