Criminal Complaints under Florida Law
Under Florida law, each State Attorney has discretion to decide certain aspects of the process of making a criminal complaint in that Circuit. The procedures and policy considerations that apply to the State Attorney’s decision to direct file charges are derived from a combination of the following:
- Florida law;
- the Florida Constitution;
- the Constitution of the United States;
- the Model Rules of the American Bar Association; the
- Rules Regulating the Florida Bar.
Florida’s criminal justice system allows three entities to be involved in the processing of criminal complaints. First, a law enforcement officer (LEO) has the task of investigate criminal complaints to determine whether there is “probable cause” to
believe the following:
- a violation of a Florida criminal statute has occurred; and
- the person subject to the complaint committed the criminal offense.
When probable cause for both conditions exist, the LEO may, but is not required to, forward the complaint to the State Attorney’s Office. In this context, the term “probable cause” means sufficient reason based upon known facts to believe a crime has been committed.
Criminal Defense Attorneys for Criminal Complaints in Florida
The criminal defense attorneys at Sammis Law Firm are experienced in representing clients at all stages of the criminal investigation. Whether you were arrested, issued a notice to appear, or subject of a sworn complaint, we can help.
We are experienced in conducting “pre-file” investigations that occurred between the alleged offense and the State Attorney’s Office making any decision to file a formal charge. The goal in pre-file investigations is to convince the prosecutor not to file any criminal charge or to only file less serious charges than those initially alleged.
When a client hires us before a formal filing decision has been made by the State Attorney’s Office, the first thing we do is send a letter and email to the prosecutor making the filing decision. Our letter often arrives in the file before the file even makes it to the prosecutor’s desk.
By the time the prosecutor opens the file, they first see that Sammis Law Firm represents this client. That often results in a call by the Assistant State Attorney making the filing decision. We then talk with the prosecutor to find out more about the allegation and to submit exculpatory evidence or mitigation. The best result in these cases is convincing the prosecutor not to file any formal charge.
Contact an experienced attorney at Sammis Law Firm to find out more about how we conduct pre-file investigations.
Call 813-250-0500.
Criminal Complaints Submitted to the SAO by the LEO
The State Attorney’s Office will review any case submitted by the law enforcement officer (LEO). The LEO can submit the case to the State Attorney’s Office using any of the following methods:
- arrest;
- notice to appear; or
- a “sworn complaint.”
The State Attorney must then decide whether to file a formal criminal charge against a defendant. Maintaining separation between the law enforcement officer and the prosecutor during this process plays an important role in protecting against false allegations.
In this case, the State Attorney should fairly and impartially fulfill its constitutional and statutory obligation as gatekeeper to the criminal justice system. The role of State Attorney is bifurcated into duties as a “minister of justice” and as
the “prosecutorial authority.”
As a minister of justice, the State Attorney reviews criminal accusations submitted by law enforcement officers to ensure that the charges are supported by probable cause, there is a reasonable likelihood of success on the merits of the action, and that the cause of action is just. As the prosecutorial authority, the State Attorney acts as the legal advocate for the State of Florida in a criminal prosecution.
When cases are submitted by the law enforcement officer, the State Attorney’s Office investigates criminal complaints submitted to determine the following:
- whether there is sufficient proof to file a criminal charge in the Courts; and
- whether the filing of a criminal complaint is appropriate under the facts and circumstances of each particular case.
As a general rule, the State Attorney does not accept matters for investigation from the public without the matter having first been investigated by an law enforcement officer.
When a member of the public attempts to file a criminal complaint directly with the State Attorney’s Office, that member of the public will be directed to refer that complaint to the law enforcement agency that has venue and jurisdiction of both location and nature of the offense.
With few exceptions, the State Attorney’s Office does not investigate matters where an law enforcement officer has determined probable cause does not exist. In other words, the State Attorney’s Office does not accept that case to review that decision.
The American Bar Association suggests that “A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice.
Rule 3-4.3(a)
After the State Attorney’s Office determines that there is sufficient proof to file a criminal charge, and that it is appropriate to do so. Only then is the formal criminal charge filed with the Court. The formal charging document is called an “information.”
The State Attorney then represents the State of Florida as plaintiff in that criminal lawsuit. The State Attorney does not represent the victim in the case. Nevertheless, the State Attorney must afford a victim all of the rights and meet all of the attendant responsibilities to observe victims’ rights as set out in Florida Statute Section 960 and the Florida Constitution.
The State Attorney does have standing to enforce victim’s rights in the Courts on behalf of the victim where permitted. All victims are permitted to be represented by a licensed attorney at the victim’s expense.
Criminal Complaints Submitted by a Civilian Directly to the State Attorney
Some Florida Statutes require the State Attorney’s Office to act as the primary investigative agency by accepting direct complaints including:
- A violation of Florida’s Sunshine Law under Florida Statute § 286);
- Allegations of a violation of Florida Statute §832.05 which prohibits submitting a worthless check; and
- Allegations of violations of Florida Statute § 1003.26 which prohibits the criminal failure to send a child to school.
Under limited circumstances, the State Attorney is tasked with acting as the primary investigative agency for violations of Florida’s Public Records laws (Florida Statute §119). Prior to acceptance of any complaint regarding a Public Records Law, the State Attorney’s Office might require the Complainant to have a pre-complaint meeting with the Public Records Custodian during which the complainant must provide the following information:
- A copy of the public records request(s) and all associated correspondence.
- A copy of all notices of failure to comply with the public record laws that are required by statute.
- The name and identifying information of the person and the employing entity who is alleged to have violated the public records laws.
- The statutory or rule basis for the existence and preservation of the record.
- Proof of the existence of the record requested.
- All available, known proof that the alleged violation is intentional, as opposed to unintentional or merely negligent.
If the person making the complaint fails to produce the required information then the State Attorney will reject the complaint. Only an accepted complaint becomes a record of the State Attorney’s Office.
Under Florida Statute Section 119.10(1), merely negligent violations of Florida’s Public Records laws and assertions of exemptions and confidentiality by a Public Records holding entity are not violations of Florida’s Criminal Public Records Law, and will not accepted as a criminal complaint. Any civil complaint fall outside of the jurisdiction of the State Attorney.
Read more about the role State Attorneys in Florida play in our criminal justice system.
This article was last updated on Friday, January 16, 2025.
