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Common Defenses In Florida: The Procedural Defenses


Last week we talked about several common defenses in Florida to criminal charges. This week we’ll cover a few more common defenses that center on the procedure used by prosecutors and law enforcement when collecting evidence and conducting a trial.

Speedy Trial

The United States’ Constitution guarantees everyone charged with a crime the right to a speedy trial. So too does Florida’s Constitution. What that means in a procedural sense is that a person accused of a crime must be tried within 90 days of their arrest for a misdemeanor and 175 days after being arrested for a felony.

However, simply reaching the end of that time period does not mean that the charges will be dropped. At that point the defendant’s attorney will file a “Notice of Expiration of Speedy Trial Time” with the court that has the case. Filing such a notice gives the prosecution another 15 days to start the trial. If not, charges are still not automatically dropped, but it creates an opportunity for the defense to ask the court to do so on those grounds.

Search And Seizure Violations

Another common procedural ground for attacking criminal charges filed against a defendant is the Fourth Amendment of the US Constitution, which guarantees a person to be free from search and seizure of his property by law enforcement without first obtaining a search warrant from a magistrate in most situations.

In general, for evidence obtained by law enforcement to be usable against a defendant, a magistrate must sign a search warrant that details what law enforcement seeks and expects to find when conducting their search. However, there are a few major exceptions to this rule that have been recognized by the Supreme Court.

If the contraband found by law enforcement is in plain sight, like on the dashboard of a vehicle, a police officer does not need a warrant to lawfully seize it and for the prosecution to use it at trial. So too for any contraband found after searching a defendant’s immediate surroundings or person after law enforcement has arrested him.

However, if the evidence was found in a situation that does not meet one of the exceptions and law enforcement did not have a warrant for the evidence, the court is bound to exclude that evidence from trial. In addition, any evidence that was uncovered because of the excluded evidence must also be excluded from trial. In many cases, exclusion of such evidence does enough damage to the prosecutor’s case that they move to dismiss the charges against the defendant.

Statute of Limitations

A third procedural defense to criminal charges is that of the statute of limitations. Florida (and every state) has laws that govern how long after a crime charges must be filed by the prosecution, which vary with the severity of the crime. Misdemeanors tend to have a shorter statute of limitations, while felonies have longer statutes of limitations. In Florida, capital crimes have no statute of limitations, so charges may be filed at any time without risking dismissal on the grounds of a statute of limitations that has run.


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