Arrested in Broward County Does Not Mean the Same Charge Will Be Filed

The police make the arrest. The State Attorney decides what criminal charges the State of Florida will prosecute.

An arrest is based upon probable cause. The Broward State Attorney’s Office conducts its own review before formally filing a criminal case.

An important question during that review is whether the available evidence provides a reasonable likelihood of conviction.

That is different from simply asking whether probable cause existed for the arrest.

A filing prosecutor evaluates the case from a prosecution standpoint. Can the State prove each element of the offense? What evidence will be admissible? Are the witnesses credible? Are there significant inconsistencies? Is there evidence supporting a legal defense? Can the State ultimately prove the charge beyond a reasonable doubt?

After that review, the prosecutor may file the charge identified at arrest, file a different or reduced charge, request additional investigation, file other charges supported by the evidence, or decline prosecution.

In a felony case, when the State Attorney determines that formal charges should not be filed, this is commonly referred to as a No Information.

This independent review is why the period after an arrest should not automatically be treated as a waiting period.

How the Broward State Attorney’s Office Files Criminal Cases

Understanding pre-filing representation in Broward County requires understanding how cases are reviewed within Florida’s 17th Judicial Circuit.

Broward County has four criminal courthouse locations: the Central Courthouse in downtown Fort Lauderdale and the North, South and West Satellite Courthouses.

The filing process is not identical at every courthouse or for every type of criminal case.

Misdemeanor Filing at Broward’s Satellite Courthouses

The satellite courthouses handle misdemeanor and criminal traffic cases assigned to their geographic jurisdictions.

Assistant State Attorneys assigned to county court divisions at the satellite courthouses review incoming cases and make filing decisions in addition to prosecuting cases within those divisions.

Dave Simmons performed this role while serving as a Broward Assistant State Attorney at the North Satellite Courthouse. He personally reviewed cases, made charging decisions and prosecuted cases assigned to the courthouse.

That experience provided firsthand knowledge of the questions involved in a filing decision: What can actually be proven? Are the elements of the offense established? Are the witnesses credible? Is evidence missing? Is the charge selected by law enforcement the appropriate charge?

Felony and Misdemeanor Filing at the Central Courthouse in Fort Lauderdale

The filing structure at Broward’s Central Courthouse is different.

At Central, dedicated filing prosecutors review incoming felony and misdemeanor cases and make initial charging decisions before those cases proceed to the trial divisions.

The Assistant State Attorney who ultimately prosecutes the case in a trial division therefore generally is not the prosecutor who made the initial filing decision.

For pre-filing representation, that distinction matters.

If evidence or a legal issue could materially affect the charging decision, the defense needs to determine who is reviewing the case and, when strategically appropriate, communicate that information before the filing decision is made.

Domestic Violence and Other Specialized Units

Certain Broward criminal cases are handled through specialized units within the State Attorney’s Office.

Domestic violence is an important example.

Specialized units have prosecutors assigned to filing review, and prosecutors working within those divisions may also make filing decisions on cases handled by the unit.

The key question for the defense is where the case is being reviewed and which prosecutor makes the filing decision.

In a domestic violence case, the police report may not tell the entire story. Text messages, photographs, video, prior communications, additional witnesses, conflicting accounts, and the alleged victim’s position may provide information relevant to the filing decision.

The same principle applies to other specialized cases.

Why Acting Before Charges Are Filed Can Matter

The filing prosecutor has significant authority and discretion during the initial charging process.

The prosecutor can decide what charges to file, whether a lesser charge is appropriate, or whether the evidence warrants filing a criminal charge at all.

Once formal charges are filed, that initial decision has already been made.

The process also changes after filing. When the case moves into a trial division, the division prosecutor handling the case must obtain supervisory approval to reduce or dismiss charges already filed.

That creates an important practical distinction. Before charges are filed, the filing prosecutor has the authority to decide what charge, if any, to bring. Once charges are filed, changing or dismissing that charge requires an additional level of approval.

For that reason, when favorable evidence or a legal issue could affect the charging decision, it can be important to address it before the case is formally filed.

What Can a Criminal Defense Lawyer Do Before Charges Are Filed?

Pre-filing representation is not simply calling the State Attorney and asking for a case to be dropped.

There needs to be a factual, legal or strategic reason for intervening.

Depending upon the case, pre-filing defense work may include:

• Locating and preserving surveillance or other video evidence;
• Interviewing witnesses who were not interviewed by police;
• Preserving text messages, photographs and electronic communications;
• Obtaining records or other documentary evidence;
• Identifying inconsistencies or credibility problems in witness statements;
• Presenting evidence supporting self-defense;
• Addressing whether the evidence establishes criminal intent;
• Analyzing actual or constructive possession;
• Identifying problems with identification;
• Presenting relevant information concerning an alleged victim’s position;
• Raising factual or legal deficiencies in the alleged offense; and
• Presenting appropriate mitigation when relevant to the filing decision.

Sometimes the most important evidence is evidence the police never obtained.

Early investigation gives the defense an opportunity to preserve that evidence and determine whether presenting it to the filing prosecutor would help—or hurt—the defense.

Communicating With a Broward Filing Prosecutor Before Charges Are Filed

Knowing that favorable evidence exists is only part of pre-filing representation. The defense also needs to know who is reviewing the case and how to bring relevant information to the appropriate prosecutor.

After more than 27 years practicing criminal law in Broward County, Dave Simmons has developed longstanding professional relationships with prosecutors throughout the Broward State Attorney’s Office.

Those relationships do not determine the outcome of a case or guarantee that charges will not be filed.

They do provide an established professional basis for communicating with the prosecutor reviewing a case when there is legitimate information that should be considered before the charging decision.

Depending upon the circumstances, that may include evidence not obtained by law enforcement, witness or credibility problems, factual inconsistencies, video or electronic evidence, self-defense, problems proving intent or possession, the alleged victim’s position, or another issue affecting the State’s ability to prove the case.

If information could legitimately affect the filing decision, you may have an important opportunity to present it while the decision is still being made.

Pre-Filing Representation in Broward County Felony Cases

Pre-filing representation can be particularly important following a felony arrest.

The felony charge selected by an arresting officer does not necessarily determine what charge the Broward State Attorney’s Office will ultimately prosecute.

A felony filing prosecutor must evaluate the evidence and determine what formal charge, if any, is appropriate. That can include considering the degree of the offense, whether each legal element can be established, whether the evidence supports a lesser offense, potential defenses and whether there is a reasonable likelihood of conviction.

Pre-filing issues can arise in cases involving aggravated battery, felony battery, grand theft, burglary, fraud and economic crimes, drug offenses, firearm offenses, robbery, felony domestic violence, constructive possession, self-defense, disputed intent and conflicting witness accounts.

The defense may therefore have an opportunity to address the strength or appropriate level of the allegation before the felony filing decision is made.

Firsthand Experience Making Filing Decisions as a Broward Prosecutor

Dave Simmons understands the filing process from both sides.

Before entering private criminal defense practice, Simmons served as a Broward County Assistant State Attorney. His assignments included the North Satellite Courthouse, where he personally reviewed criminal cases, made filing decisions and prosecuted cases within the courthouse.

That experience matters because effective pre-filing representation requires viewing the case the way a filing prosecutor will.

Does the evidence establish every element? Can the State prove intent? Are there credibility problems? Does objective evidence contradict the accusation? Is there a legitimate self-defense issue? Can possession actually be proven? Is important evidence missing? Does the police report tell the entire story?

The objective is to identify issues that could legitimately affect the prosecutor’s evaluation before the filing decision is made.

Pre-Filing Representation Does Not Mean Contacting the Prosecutor in Every Case

In some cases, contacting the prosecutor before filing can be helpful. Other times, it may not be strategically advisable.

Evidence should not be turned over to the State without considering how it could affect the defense if charges are ultimately filed.

No criminal defense attorney can guarantee that pre-filing representation will prevent prosecution.

The purpose is to investigate early, understand how the case is being reviewed and recognize when there is a legitimate opportunity to affect the charging decision—and when it is better not to intervene.