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The Felony Filing Process

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When you are arrested and charged with a felony offense, the State Attorney's Office must review the arrest and interview witnesses before formal charges are filed.

State Attorneys' Offices statewide have entire divisions dedicated to the screening and filing of cases. The more serious cases (typically second-degree felonies and higher) are screened and filed by the actual division prosecutors who will be handling them.

Your arraignment - the court hearing where you are informed of the charges against you and you enter a plea - is usually scheduled 21 - 30 days after your arrest. Florida law requires that formal charges be filed within 21 days, unless the prosecutors need a 9-day extension. Beyond the 33rd day, the prosecutors must show good cause why they need another extension. If no good cause can be shown, then you are released from jail (if in custody) or can have your bond discharged if you are out of custody.

During these 21 - 30 days, prosecutors are working to determine whether there is sufficient evidence with which to charge you with the offense that the police arrested you for. The prosecutor can do many things. They can file the charges that you were arrested for. They can file reduced misdemeanor charges (called a "bind down"). They can file more charges or more serious charges. It all depends on what the evidence suggests.

The prosecutor will send subpoenas to witnesses whom the police have listed in their report as having information about the case. If the prosecutor discovers a witness during their pre-file conferences, they will subpoena that witness. The prosecutor will also speak with the police officers involved in the arrest and will obtain all of their reports.

Many attorneys choose to ignore this process completely. Maybe because they are not former prosecutors and are not aware of how a felony is filed. I'm not sure. But a "wait-and-see" approach doesn't work when you have a client charged with a felony.

Prosecutors, in the pre-file stage, have more discretion with their cases than after the case is filed. Therefore, if you have an opportunity to get a case dismissed or reduced to a misdemeanor, the pre-file stage is when you want to do it.

You may submit the names and addresses of defense witnesses to the pre-file prosecutor. If you have evidence or exhibits to show, you may submit those as well. Even simple impressions about the case are important to relay to the prosecutor. Those things, if done early, can yield great results.

That is because a pre-file prosecutor has a duty to file charges that they believe can be proven beyond a reasonable doubt. They don't have a vested interest in what is filed and what isn't. That's why if you can create that reasonable doubt upfront, it's very easy for the prosecutor to write a memo explaining their decision-making and then dismissing the charges or filing reduced charges in court.

I have always stressed that the best time to retain a criminal defense attorney is the moment after you are arrested. Don't wait until after arraignment. It could be too late.

Eric Matheny is a Miami criminal attorney and Broward criminal attorney.