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When The State Changes The Charge

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When it comes to being charged with a crime, the police will make an arrest based upon probable cause. Ultimately, the decision as to what charges you will face, if any, is up to the State Attorney's Office.

For instance, if the police arrest you for burglary of an unoccupied structure and the State Attorney believes that the structure is actually a residence, they may change the charge from burglary of an unoccupied structure to burglary of an unoccupied dwelling.

This constitutes a change of charge and it will require your bail bondsman to submit an affidavit to the court stating that they will remain liable on the existing bond. This is because burglary of an unoccupied structure is a third-degree felony whereas burglary of an unoccupied dwelling is a second-degree felony.

The logic is that the bondsman is no longer obligated to vouch for your appearance when the terms of the bond have changed.

In Miami-Dade County, this is less of a problem. An affidavit from the bondsman will normally suffice. In Broward, if the State Attorney changes the charge(s), you - the accused - will be required to appear at your arraignment with your attorney. The judge will issue a warrant (a capias) and that warrant must then be served.

If charges are filed after the 33rd day, an affidavit may not be required because the bonds are normally discharged if the State hasn't filed by then.

If charges are filed before the 33rd day, then you will have to address the change in charge.

If you are arrested for one count of battery and one count of burglary of an occupied dwelling, for instance, and the State decides to file one count of burglary with an assault or battery instead, your bond will be revoked and you will be taken into custody because that charge is a non-bondable offense.

It is imperative that you understand what it means to be out on bond. Bond is not a punishment but a method by which the court ensures the appearance of a defendant. Some charges are not eligible for bond. Some charges receive lower bond amounts than others.

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