Speaker 1: Hey folks, I'm attorney Roger P Foley and this morning I'm going to talk to you about something that comes up so often and it's understanding the plea bargain in a criminal case versus a trial. Now I've talked in the past about you file in on a case from a defense perspective, you request discovery or you request a diversion right at the onset of the case and the goal is to minimize the punishment, the liability by humanizing the client. Now when you have second degree felonies and first degree felonies, that's more difficult to do, even a lot of third degree felonies. So you start off, once the case has been filed, once the information has been filed, I start off by speaking to the assigned prosecutor, I file in, I notify the prosecutor, the clerk and the judge that I'm representing the individual and I request, whatever I'm requesting, either it's discovery or a diversion program. If I could do diversion on every case, I would, but a lot of firearms cases, not eligible, certain cases just aren't eligible and that's by rule because when you do a diversion, it's with the state attorney. So what happens in a situation, and I had this happen recently, where a felony, where the prosecutor is saying, hey, I can leave it as a felony and you can have your day in court or I can reduce it to a misdemeanor and give you probation or give you time served, but an adjudication, meaning you plead guilty, you're found guilty, is what the resolution is. So prosecutor says, Mr. Foley, I'll drop down Mr. Smith's case from a third degree felony to a first degree misdemeanor, I'll give him one year of probation and I will adjudicate him guilty. I don't like that offer. Here's why. If you are adjudicated on the misdemeanor charge, even though it's reduced from a felony to a misdemeanor, can't seal it, can't expunge it, it's going to follow you for the rest of your life. So if that offer is made, I need to discuss with my client their prior criminal history, whether or not they were a veteran in one of the armed forces, if they have a drug or alcohol addiction. Why do I say that? Well, if they're a veteran and they've been charged with a third degree felony, most of those charges, not every charge, but most, the person can enter into veterans court. They can even do that for a misdemeanor. They get treatment, they get help, they get a sponsor, like a former military personnel who gives them advice, like a mentor. And the case lasts a year to 18 months. Felony is usually 18 months these days. But if the person, the client, the defendant, the ex-veteran, right, not ex-veteran, the veteran, completes what they need to complete, the case is dismissed. So it's important to know if your client's a veteran, because it's a guaranteed dismissal if they get into diversion into veterans court and they do what they're supposed to do. The second thing that I talked about was whether or not they have an addiction. If they have an addiction, drugs, alcohol, then I can request the court to enter them into a court-ordered diversion program, and that's pursuant to statute. There's a statute that allows, even if the state says, no, we don't want to give a diversion, we don't want to have an agreement between our office and the defendant, or maybe the victim is objecting, for whatever reason the state says no, as an attorney, I have another option to go to the judge and say, judge, I'm asking for court-ordered diversion. That is good, mostly for third-degree felonies, it may or may not apply for second, I don't remember the statute and I don't have it as I'm driving, but that's another course. What's the other thing that's important? The facts of the case, right? We get so caught up in moving things along, you can't forget the fight, right? The fight, the thing that I actually enjoy doing, when I have good facts, is looking at all the evidence in the case and making a determination of whether or not I have a motion, a motion to suppress evidence that the police collected illegally, or whether or not my facts have a chance before my client goes to a jury trial before his peers. If I have a motion, or if I have facts that would help me in a jury trial, and I'm not eligible or I'm not offered diversion by the state, the judge doesn't want to give court-ordered diversion, veterans court's not an option, kind of Captain Obvious, right? I'm going to want to make the argument for my client to see if I can, in effect, knock out the case. One of the problems that you often encounter, and I think clients encounter, is understanding this process. Well, I saw, Mr. Foley, you did a thing on diversions, I want diversion. Well, sir, diversion's not available if you shooted somebody. A lot of firearm cases, usually not allowed to get diversion. Cases that may not, whatever that case may be, I can't think of an example right now, but there are certain cases where the state just says, you know what, I don't feel comfortable. It might be a third degree felony, it might be a misdemeanor, but they say, listen, we're not offering that. The victim objects, or I've had where the victim says, no, I'm okay with it, but the state says, you know what, I just think that this is too serious of a situation, I can't offer diversion. And that happens. So, the part that I think that the clients get confused on is whether their case is eligible for diversion, what is required during a probation. So let's talk about probation, because a lot of cases end with probation. I'm going to drink my healthy shake here, my four ingredients, turmeric, tarrant, pineapple, five, whatever, six ingredients, lemon, ginger. It'll wake you up, for sure. If you're offered probation, and you accept probation, you have no rights. What do I mean? Well, you can't bear a firearm, you have no privacy, what do I mean by that? That means that if you're on probation, your probation officer, someone from the Department of Corrections, can come to your home, can search your car, can search your house, can search your undergarment drawer, you don't have a right to object, because you're on probation. The Department of Corrections, the state of Florida, is governing you. You normally can't travel. Now, there are exceptions, there are times when the prosecutor will say, I have no objection to travel, and the judge may grant that request. But most of the time when you're on probation, the general way it's run, is that you're either limited to the county that you live in, or maybe like in Palm Beach, maybe Tri-County, right? Broward, Palm Beach, Martin County, you know, something like that. Otherwise, if you want to go on vacation to Canada, you can't go. Probation can't allow you to go, you're not allowed to leave the state. Again, you're probably not allowed to leave the jurisdiction, either your county or the Tri-County area. So you have to file motions for that, you have to make requests. Some people find that extremely difficult. They may vacation often, they may have family, they may have sick family. It becomes difficult. And they say, I don't want to do probation. Well, if diversion's not available, veterans court's not available, there's not an addiction, the judge doesn't say yes, now you've got to compare the facts of the case. Can you be acquitted of the charge if you go to jury trial? And if you can't, then you're kind of stuck with the offer that the state gives you, or is negotiated between your defense attorney and the state. I feel like some clients don't understand that, and it is difficult, right? Because you're going from living your life the way you want it to government intrusion, right? But if you've alleged to have committed a crime and you've committed that crime, or sometimes even if you haven't committed the crime, you've got to look at what the facts are, what facts can be brought into evidence, and can you prove your innocence? There are cases that I have had where the client, in my humble opinion, is innocent. 100%. 100%. That's just my opinion, and I might be jaded because, you know, I'm representing them. But I believe them to be 100% innocent. Every so often, one of those people choose the option of pleading guilty and taking a probationary term. That's their choice. I can give them option 1, option 2, option 3. On every case, you at least have two options. Plea bargain or fight the case, which is motions and trial. Sometimes you don't have a witness. Sometimes the evidence that you think you have disappears. Then what do you do if you're a defendant? It's a very tricky situation, and a lot of people struggle with it. The courts don't give you a lot of time. You have a couple of months. That's why I explain everything to my clients at the beginning of a case, and I let them be involved. I don't let them. I make sure that my clients are involved. They're updated on if they want to apply for diversion, I'm applying for diversion. If they're looking at veterans court, I'm trying to get them in veterans court. If there's an open plea to the judge in regards to a court-ordered diversion, try that. If there's a technical argument, we're going to file the motions. If the case has enough evidence to go to trial, we're going to go to trial. But I think that overwhelms the majority of people because they're scared to be on probation. They've heard stories of bad probation officers and people who violate probation for something that's not too serious and end up incarcerated. They worry about going to a jury trial because they don't know if these are their peers, whether it's racial differences, religious differences, maybe the way they look versus what the average person looks like. Everyone has their reason, and there's a general distrust of the system. If you're charged with a crime, what do you do? That's the question. You've got to understand the process to make that decision. I'm attorney Roger P. Foley, and that's a little bit about the process. See ya.