If you were arrested for DUI or another criminal traffic offense in Tampa, the date on your citation may matter more than the date the State files its paperwork. Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, is a member of the National College for DUI Defense and a former COO of the Hillsborough County Public Defender’s Office, overseeing a staff of over 100 attorneys. Our attorneys track every speedy trial date from the first day of the case, because a missed deadline is one of the few defenses the State creates on its own.

What is Florida’s speedy trial rule?

Florida’s speedy trial rule is Florida Rule of Criminal Procedure 3.191, a court rule that sets deadlines for bringing a criminal case to trial. It works separately from the constitutional right to a speedy trial, and it gives defendants a procedure for enforcing those deadlines. Rule 3.191 applies to misdemeanors and felonies, including criminal traffic offenses such as DUI, driving while license suspended, and reckless driving.

The rule has two tracks. Without any action by the defense, the State must bring the case to trial within a fixed period. With a written demand, the defense can shorten that period. The table below shows the deadlines in the current rule.

When does the speedy trial clock start after the 2025 rule change?

Since July 1, 2025, the speedy trial clock in Florida starts when the person is formally charged, not when the person is arrested. The Florida Supreme Court made that change in In re Amendments to Florida Rule of Criminal Procedure 3.191, 411 So. 3d 385 (Fla. 2025), a rules case in which the Court rewrote the speedy trial rule on its own motion. Under the amended rule, a person is formally charged by information, by indictment, or, for misdemeanors, by “whatever documents constitute a formal charge.”

The 2025 amendment made four main changes. The clock now starts at formal charge. The State’s recapture period grew from 10 days to 30 days and became mandatory in every case. A discharge under the rule is now without prejudice, which means the State can refile, unless the court finds a violation of the constitutional speedy trial right. The deadline for trial after a demand was extended from 50 to 60 days.

The Court had moved in this direction before. In Davis v. State, 286 So. 3d 170 (Fla. 2019), a man was detained and questioned about a crime but not formally arrested until later, and the Court held the detention did not start the speedy trial clock. Justice Labarga dissented from the 2025 amendment, writing that it would “further relax” the rule and leave people under long investigations in “procedural limbo.”

The 2025 amendment also changed Florida Rule of Criminal Procedure 3.134, which limits how long a person can wait for formal charges. Those deadlines now act as the outer guardrail before the speedy trial clock begins.

Does a later charge from the same arrest get its own speedy trial clock?

It depends on whether the later charge comes from the same criminal episode. Rule 3.191(o) bars the State from avoiding a speedy trial deadline by dropping a charge and filing “new and different charges based on the same conduct or criminal episode,” and that language survived the 2025 amendment. A separate crime gets its own clock, even when police found the evidence during the same arrest.

The Second District Court of Appeal, which hears appeals from Hillsborough County, applied that rule in State v. Muhammad, No. 2D2025-0756 (Fla. 2d DCA Nov. 6, 2026), a Hillsborough County drug case. During an April 2024 traffic stop, a detective saw a bottle and a cup of purple liquid in the center console, and a search turned up fentanyl and cocaine hidden in a sock under the hood. Muhammad was arrested that day for the hidden drugs, and the State dropped those charges a few weeks later. The lab took more than seven months to analyze the liquid, and in January 2025 the State charged him with trafficking in hydrocodone. The trial court discharged him under the speedy trial rule, finding that both charges came from one episode. The Second District reversed.

The court held that keeping the liquid within reach to drink and hiding the other drugs under the hood for transport were separate criminal acts, so the clock on the trafficking charge did not start until the January 2025 arrest. The opinion makes four points a defendant should know:

1. The test looks at what the defendant did, not at how the police happened to find the evidence.
2. Crimes discovered at the same time are not automatically one criminal episode. The conduct must be the same, not merely related.
3. The defendant carries the burden of showing a link between the later charge and the conduct behind the first arrest.
4. Whether the State had probable cause for the later crime at the first arrest does not matter, because the State is not required to arrest a person for every crime it could charge.

Two of the three judges concurred only in the result, so the reversal is binding but the written reasoning did not draw a majority. Muhammad was also decided under the pre-2025 rule, when an arrest started the clock. The “conduct or criminal episode” language it applied still appears in the current rule, so the same question arises whenever the State adds a charge after the first one is filed or dropped.

When the State files a new charge months after an arrest, our attorneys compare it line by line with the conduct described in the original arrest report, because a discharge argument rises or falls on proving that both charges rest on the same acts. That comparison matters most in drug cases, where a lab result can arrive long after the arrest, as it did in Muhammad. Our Tampa drug crimes attorney page explains how our firm defends possession and trafficking charges.

When does the speedy trial clock start in a DUI or criminal traffic case?

In a criminal traffic case, the speedy trial clock starts on the date of arrest or the date a traffic citation, notice to appear, summons, information, or indictment is issued in lieu of arrest, whichever occurs first. That rule comes from a Florida Supreme Court decision issued October 22, 2026, In re Amendments to Florida Rules of Traffic Court 6.100, 6.160, and 6.325, No. SC2025-1377 (Fla. Oct. 22, 2026), in which the Court amended Florida Rule of Traffic Court 6.160 to match the 2025 changes to rule 3.191. The amendment takes effect January 1, 2027, at 12:01 a.m.

Rule 6.160 says the criminal rules govern traffic cases and defines when the speedy trial period begins. Before the amendment, rule 6.160 said a traffic defendant was “taken into custody” for rule 3.191 purposes when arrested or served with a citation. After July 1, 2025, rule 3.191 no longer used the phrase “taken into custody.” The new rule 6.160 replaces it with “formally charged” and ties formal charge to the arrest or the citation, whichever occurs first.

This matters most in county court misdemeanor cases. In our experience in Hillsborough County, on a misdemeanor DUI the State Attorney’s Office often files its information weeks after the arrest, and until then the citation is the only charging document. Under the amended rule 6.160, those weeks count. The 90-day misdemeanor period for a DUI charge or another criminal traffic charge runs from the arrest or citation, not from the later information. Our Tampa criminal traffic attorney page explains how our firm defends these charges.

The Court’s opinion does not say how the amendment applies to cases already pending on January 1, 2027. Our attorneys check the arrest date, the citation date, and the filing date in every pending traffic case so no time is lost in the transition.

Does speedy trial apply to a civil traffic ticket?

A civil traffic infraction, such as a speeding ticket with no criminal charge, has its own 180-day time limit under Florida Rule of Traffic Court 6.325, measured from the date the citation is served. That limit does not apply to an infraction that is attached to or consolidated with a criminal traffic charge. The Traffic Court Rules Committee proposed changes to rule 6.325 and rule 6.100, then withdrew them, so those rules did not change.

Justice Tanenbaum wrote separately in the October 22, 2026, decision to explain that the 180-day limit for infractions is administrative. In his view, no constitutional speedy trial right attaches to a noncriminal infraction, the rule creates no right on its own, and a dismissal under it would be without prejudice unless the one-year limitation period for noncriminal violations in section 775.15(2)(d), Florida Statutes, has run. He suggested the rule’s title and its use of the word “entitled” be revised. The current text of rules 6.160 and 6.325 appears in the Florida Rules of Traffic Court published by The Florida Bar.

How do you enforce speedy trial in Florida?

A defendant enforces the speedy trial rule by filing a notice of expiration of speedy trial time after the deadline passes. The court must then hold a hearing within 5 days and, unless the delay falls within one of the rule’s exceptions, order the State to bring the case to trial within 30 days. The steps work in this order:

1. The deadline passes. The 90-day or 175-day period runs out, or the 60-day period after a demand runs out, without a trial.
2. The defense files a notice of expiration. Nothing happens automatically. The defendant must file the notice.
3. The court holds a hearing within 5 days. The judge decides whether the delay was caused by the defense or falls within another exception.
4. The State gets a 30-day recapture period. Since July 1, 2025, this period is mandatory before any remedy.
5. Discharge if the State still does not try the case. The defendant is discharged from the crime, without prejudice unless the court finds the constitutional speedy trial right was violated.

Because a discharge is now usually without prejudice, the statute of limitations often decides whether the State can refile. Under section 775.15, Florida Statutes, a first-degree misdemeanor must be prosecuted within 2 years and a second-degree misdemeanor within 1 year. A first DUI carries up to 6 months in jail and a fine of $500 to $1,000 under section 316.193(2)(a), Florida Statutes, so the stakes of a lost deadline are real on both sides.

How many criminal traffic cases does Hillsborough County handle?

Hillsborough County opens nearly 2,000 criminal traffic citations a month on average, more than all other county criminal cases combined. From October 2024 through January 2025, the Hillsborough County Clerk of Court’s monthly outputs report for county fiscal year 2024-25 shows 7,977 criminal traffic citations opened, compared with 5,198 other county criminal cases. That volume is one reason speedy trial dates matter in county court.

National standards set a much faster pace than many courts reach. The Model Time Standards for State Trial Courts, published by the National Center for State Courts and approved in 2011 by the Conference of Chief Justices, the Conference of State Court Administrators, the American Bar Association, and the National Association for Court Management, call for 75% of misdemeanor cases to be resolved within 60 days and 98% within 180 days. A 2023 article in Judicature by William Raftery of the National Center for State Courts reported that a 2021 study of 1.2 million felony and misdemeanor cases in 21 states found no court that consistently met the model standards.

Is the constitutional right to a speedy trial different from the rule?

Yes. The constitutional right to a speedy trial comes from the Sixth Amendment and Article I, section 16 of the Florida Constitution, and it applies even when rule 3.191 has been satisfied or does not apply. Courts weigh four factors from Barker v. Wingo, 407 U.S. 514 (1972), the U.S. Supreme Court case in which a Kentucky defendant waited more than five years for trial: the length of the delay, the reason for it, whether the defendant asserted the right, and the prejudice to the defendant.

The two protections now work together in a new way. Under the 2025 amendment, a discharge under rule 3.191 is with prejudice only when the court also finds a constitutional violation. Our firm explains the constitutional side in more detail in our post on the constitutional right to a speedy trial in Florida.

Should you demand a speedy trial in a Florida DUI case?

Sometimes, and only after the defense has the evidence it needs. A demand for speedy trial forces the State to try the case within 60 days, but it also binds the defense to be ready for trial in that window. A defendant who files a demand and then asks for a continuance usually loses the benefit of the demand.

Our attorneys look at three questions before recommending a demand. Has the State provided the body camera video, breath or blood results, and maintenance records? Is the State’s case weaker on a fast timeline, for example because a witness or lab analyst is hard to schedule? Would the defense lose anything important, such as time to retain an expert, by moving fast? In a reckless driving or driving while license suspended case, the answers can differ from a DUI. A speedy trial demand also affects plea negotiations, which we cover in our post on what happens if you reject a plea deal in Florida.

What should you do now if you were charged with a criminal traffic offense?

Write down the date of your arrest and the date on your citation, and keep every document the officer gave you. Those dates may start your speedy trial clock under the amended rule 6.160, and the clock keeps running whether or not you have a lawyer.

Then talk to a defense attorney before the case moves forward. If you were arrested but the State has not filed an information yet, representation before charges are filed can shape what the State files. In Hillsborough County criminal court, our office is two blocks from the courthouse, and our attorneys can calendar the deadlines in your case from the first day.

For how this fits into the rest of a case, see our stage-by-stage guide to the Florida criminal case process.

Frequently asked questions

Does the speedy trial clock start at arrest in a Florida DUI case?

Starting January 1, 2027, yes: in a DUI or other criminal traffic case, the clock starts at the arrest or the issuance of a citation in lieu of arrest, whichever occurs first. Our attorneys at The Brancato Law Firm confirm those dates from the citation and arrest report in every DUI case we defend.

How many days does the State have to try a misdemeanor in Florida?

The State has 90 days from formal charge to try a misdemeanor without a demand, and 60 days after the defense files a demand for speedy trial. The Brancato Law Firm tracks both deadlines and the 30-day recapture period that follows a notice of expiration.

Can a Florida DUI be dismissed for a speedy trial violation?

Yes, but the dismissal is usually without prejudice, so the State can refile unless the statute of limitations has run or the court finds a constitutional violation. When a deadline passes, The Brancato Law Firm files the notice of expiration and holds the State to the 30-day recapture period in rule 3.191.

Can the State file a new charge after my speedy trial time has run?

Yes, if the new charge comes from a separate criminal episode, because each episode carries its own speedy trial clock. The Brancato Law Firm tests a late-filed charge against the original arrest report, the same comparison the Second District made in State v. Muhammad in November 2026, to see whether it rests on the same conduct.

Does speedy trial apply to a speeding ticket in Florida?

A civil speeding ticket falls under a separate 180-day limit in Florida Rule of Traffic Court 6.325, and Justice Tanenbaum’s October 2026 concurrence says any dismissal under that rule would be without prejudice. The Brancato Law Firm handles criminal traffic charges, and we can tell you quickly whether a ticket is civil or criminal.

Should I demand a speedy trial in my traffic case?

Only after reviewing the evidence, because a demand requires the defense to be ready for trial within 60 days. Our team at The Brancato Law Firm weighs the discovery, the witnesses, and the plea offer before recommending a demand in any criminal traffic case.

What if the State has not filed charges since my arrest?

The State must file formal charges within 30 days if you are in jail and within 60 days if you are on pretrial release, or the court must release you under rule 3.134. The Brancato Law Firm uses that window for pre-file advocacy, presenting facts to the prosecutor before a charging decision is made.

For more about our defense strategies, visit our Tampa criminal traffic lawyer page.

Your speedy trial clock may already be running. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159 to have our attorneys review your arrest and citation dates and calendar every deadline before the 90-day window closes. Call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking criminal defense clients in Tampa.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and the former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys, I know how old cases come back: through a DNA hit, a delayed report, or a warrant that sat unserved for years. More than 25 years in Hillsborough County courtrooms have taught me that the deadline question is rarely as simple as counting years. Our attorneys check the charging date, the service of the warrant, and every tolling claim before a client ever discusses the facts.

What is the statute of limitations for crimes in Florida?

The statute of limitations is the deadline for the State to begin a prosecution. Under section 775.15, Florida Statutes, the clock depends on the degree of the most serious charge. Time starts to run on the day after the offense is committed. For a continuing offense, it starts when the course of conduct ends.

When is a prosecution “commenced” in Florida?

A prosecution starts when the charging document is filed, but only if the warrant or summons is then served without unreasonable delay. If the person was already arrested or served with a summons on the charge, the filing of an information or indictment commences the case. If not, section 775.15(4)(b) says the case is commenced when the information or indictment is filed, “provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay.”

This is where many limitations defenses are won or lost. A charge filed one week before the deadline does not save the State if the warrant then sits in a database for years while the accused lives openly at a known address. In judging reasonableness, courts consider whether the State could not locate the person after a diligent search, or whether the person was out of state.

Can the statute of limitations be paused?

Yes. Section 775.15(5) stops the clock while the defendant is continuously absent from Florida or has no reasonably ascertainable place of home or work in Florida. That tolling cannot extend the limitations period by more than 3 years, but the cap does not protect someone who was timely charged and not arrested because he was out of state.

The Florida Supreme Court addressed this in Robinson v. State, 205 So. 3d 584 (Fla. 2016). Brian Robinson listed his parents’ Florida address as his address of record, but he lived outside Florida from May 2008 through May 2012. The Court held that his continuous absence tolled the limitations period even though he had an address of record, and that the State did not have to prove a diligent search or that his absence hindered the prosecution. The Court also confirmed that when the statute of limitations is raised, “the State has a significant burden and must prove that the prosecution is not barred.”

A more recent example is Whittamore v. State, No. 5D23-3126 (Fla. 5th DCA Dec. 21, 2023). Adrienne Whittamore was charged with a second-degree misdemeanor, which carries a 1-year limit. A summons mailed to her old address came back unserved, and the warrant listed “General Delivery” as her address. She was arrested about 15 months after the alleged offense. The Fifth District held that she had no reasonably ascertainable place of abode because she had moved at least three times and could not recall when, so the clock was tolled and the case could proceed.

What are the special rules for sexual battery and child sex offenses?

Sex offenses have the most exceptions in section 775.15. Several remove the time limit entirely. Our Tampa sex crimes lawyer page explains how these cases are defended when the accusation surfaces years later.

The DNA provision has a condition that matters to the defense. It applies only if “a sufficient portion of the evidence collected at the time of the original investigation and tested for DNA is preserved and available for testing by the accused.” If the sample was consumed or lost, our attorneys examine whether the extension applies at all. Our post on how a DNA cold hit can be wrong covers how those matches are challenged.

Why do so many old accusations surface years later?

Most crimes are never reported to police right away, and some are reported years later. In 2024, only 23.6% of rape or sexual assault victimizations and 47.9% of all violent victimizations were reported to police, according to the Bureau of Justice Statistics report Criminal Victimization, 2024 (September 2025). For property crimes, the 2024 figure was 30.5%.

Those numbers explain why the Legislature extended or removed deadlines for sex offenses. They also explain the risk for the accused: an accusation made 10 or 20 years later arrives after phone records are gone, witnesses have moved, and memories have faded.

Why does Florida have a criminal statute of limitations at all?

The deadline protects the accused from defending against stale charges. A Congressional Research Service report, Statute of Limitation in Federal Criminal Cases: An Overview (RL31253, updated Nov. 14, 2017), describes the purpose as ensuring prompt prosecution and sparing the accused “the burden of having to defend against stale charges after memories may have faded or evidence is lost.” The same report notes that a time limit can encourage law enforcement to investigate suspected crimes promptly. Florida’s statute serves the same goals for state charges.

How does the fraud discovery rule extend the deadline?

For offenses where fraud or breach of fiduciary duty is a material element, section 775.15(12)(a) allows prosecution within 1 year after an aggrieved party discovers the offense, even if the normal period has run. That extension cannot add more than 3 years to the otherwise applicable period. Embezzlement and scheme-to-defraud cases often turn on when the business or victim actually discovered the loss. Our Tampa white collar crime attorney page covers those charges.

How do you raise a statute of limitations defense?

Our attorneys raise it by motion to dismiss, supported by the dates in the charging document, the warrant history, and evidence of where the client lived and worked. The State must then prove the prosecution is not barred, including any claim of tolling or reasonable diligence in serving the warrant. The steps we take:

1. Identify the exact offense date or the date a continuing course of conduct ended.
2. Confirm the degree of each charge, because each count has its own deadline.
3. Pull the filing date of the information or indictment and the date the capias or summons was served.
4. Gather proof of residence and employment during the gap: leases, utility bills, tax filings, payroll records.
5. Test every tolling claim, including absence from the state and the 3-year cap.
6. Check whether a sex offense or DNA exception actually applies to this offense and this victim’s age.

What should you do if you think police are investigating an old allegation?

Talk to a lawyer before you talk to police. An old case is often thin on evidence, and a statement can supply what time has erased. Our firm provides representation before charges are filed and can address a pending investigation with detectives and the State Attorney’s Office. If you think you may have an outstanding warrant in Hillsborough County, our attorneys can check and plan how to address it.

Frequently asked questions

How long does the State have to file a third-degree felony in Florida?

Three years from the day after the offense, unless an exception or tolling provision applies. The Brancato Law Firm checks both the filing date and when the warrant was served, because a late-served warrant can make a timely filing too late.

Is there a statute of limitations for murder in Florida?

No. A capital felony, a life felony, or any felony that resulted in a death can be prosecuted at any time under section 775.15(1). The Brancato Law Firm defends these cold cases by focusing on the evidence lost over time and the reliability of any new forensic link, as described on our Tampa homicide attorney page.

Does leaving Florida stop the statute of limitations?

Yes. Continuous absence from Florida tolls the clock, and Robinson v. State held the State does not have to prove it searched for the person. The Brancato Law Firm examines whether the absence was truly continuous and whether the 3-year cap on tolling applies.

Can the State charge a child sex offense decades later?

Often, yes. Sexual battery on a victim under 16 has no time limit, and for many other child sex offenses the clock does not start until the victim turns 18 or the offense is reported. The Brancato Law Firm investigates delayed accusations with the same rigor as recent ones, and our sex crimes defense team starts by reconstructing the timeline.

What if my warrant was issued years ago but never served?

The case may be time-barred if the State did not serve it without unreasonable delay and no tolling applies. The Brancato Law Firm gathers proof that you lived and worked openly at a known address, which is the evidence that undercuts a claim that you could not be found.

Can a misdemeanor be filed after one year?

A second-degree misdemeanor must be commenced within 1 year and a first-degree misdemeanor within 2 years, but tolling can extend those periods. The Brancato Law Firm looks closely at where the summons and warrant were sent, the question that decided Whittamore v. State, and our pre-file advocacy can address a case before it is filed.

For how this fits into the rest of a case, see our guide to each stage of a Florida criminal case.

Ask us whether your case is too old to prosecute

Every count in a charging document has its own deadline, and the answer often turns on dates buried in a warrant history. Send us the charging document or the warrant information, and our attorneys will tell you whether a limitations defense is worth raising. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159; call us at any hour. Our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish and Haitian Creole speakers facing criminal charges. For more about our defense strategies, visit our Sex Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

A Florida judge deciding whether a jury will hear about a defendant’s intoxication asks one question first: was it voluntary? I have watched that question decide cases for more than 25 years in Hillsborough County courtrooms, including during my time in the Major Crimes Unit defending homicide and other serious felony cases, and as the former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. Today, as founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I lead a team that examines medical records, prescriptions, and toxicology to find out whether an intoxication issue is a legal defense, a trial fact, or neither.

Is voluntary intoxication a defense in Florida?

No. Section 775.051, Florida Statutes, says that voluntary intoxication from alcohol or a controlled substance “is not a defense to any offense proscribed by law.” It also makes evidence of voluntary intoxication inadmissible to show that the defendant lacked specific intent or was insane at the time of the offense. The statute applies to offenses committed after July 1, 1999.

Before 1999, Florida allowed jurors to consider intoxication when a crime required specific intent, such as premeditated murder or burglary. That is why older articles and some websites still describe a “voluntary intoxication defense.” For offenses committed today, it does not exist.

Is section 775.051 constitutional?

Yes. Florida’s appellate courts have upheld it. In Cuc v. State, 834 So. 2d 378 (Fla. 4th DCA 2003), Ellen Cuc argued that excluding her voluntary intoxication defense violated due process. The Fourth District affirmed her conviction, relying on Montana v. Egelhoff, 518 U.S. 37 (1996), where the U.S. Supreme Court upheld a Montana law that kept jurors from considering voluntary intoxication when deciding intent. The Fourth District wrote that Floridians “have decided to resurrect the rule that intoxication is not a defense to specific intent crimes.”

Florida was part of a national shift. Writing shortly after Egelhoff, Mitchell Keiter counted ten states with these “full responsibility” laws in Just Say No Excuse: The Rise and Fall of the Intoxication Defense, 87 J. Crim. L. & Criminology 482 (1997). Florida joined that group two years later.

When does intoxication count as involuntary in Florida?

Intoxication is involuntary when it results unexpectedly from medication that was lawfully prescribed and taken as prescribed. Section 775.051 carves out use of a controlled substance “pursuant to a lawful prescription issued to the defendant by a practitioner as defined in s. 893.02.” In Montero v. State, 996 So. 2d 888 (Fla. 4th DCA 2008), the Fourth District called that exception “essentially a codification” of the involuntary intoxication defense, which applies “where the defendant unexpectedly becomes intoxicated by prescribed medication that is taken in a lawful manner.”

The leading example is Brancaccio v. State, 698 So. 2d 597 (Fla. 4th DCA 1997). A 16-year-old taking prescribed Zoloft was convicted of first-degree murder and kidnapping. Experts, hospital records, and people who knew him described a sudden personality change consistent with an adverse reaction to the drug. The trial judge refused an involuntary intoxication instruction and gave only the standard insanity instruction. The Fourth District reversed for a new trial, holding that the jury would not have known that involuntary intoxication by medication could be a defense.

What are the limits of the prescription exception?

The exception does not protect misuse. Montero held that the exception “does not apply where the defendant abuses the prescribed medication by exceeding the prescribed dosage.” In that case, Montero claimed his lawyer should have raised involuntary intoxication from hydrocodone and alprazolam. The court rejected the claim because he never alleged he took the prescribed doses or that the intoxication was unexpected, and it noted that both drugs have well-known intoxicating effects.

In practice, the defense rises or falls on records. Our attorneys gather the prescription history, pharmacy fill dates, pill counts, the prescriber’s notes, and any blood or urine testing, then work with forensic toxicologists and psychiatrists to explain the reaction. Our Tampa criminal mental health lawyer page describes how we handle cases where medication, mental illness, and criminal charges overlap.

How common is intoxication in criminal cases?

Very common, which is why the voluntary intoxication bar affects so many cases. In the 2016 Survey of Prison Inmates, the Bureau of Justice Statistics found that 31% of state prisoners reported drinking alcohol at the time of their offense and 39% reported using drugs at the time of the offense, according to its report Alcohol and Drug Use and Treatment Reported by Prisoners (July 2021). Among state prisoners serving time for a violent offense, 34% reported drinking at the time of the offense.

Those numbers explain why prosecutors routinely ask judges to keep intoxication evidence away from jurors, and why an involuntary intoxication claim draws close scrutiny. A defense built on a prescription has to show it is different from the ordinary case.

Can intoxication still matter at trial if it is not a defense?

Sometimes, for purposes other than negating intent. Section 775.051 bars voluntary intoxication evidence offered to show lack of specific intent or insanity. Evidence about drinking or drug use can still come up for other reasons, such as a witness’s ability to perceive and remember events, or the reliability of a statement the accused gave to police while impaired. Whether it comes in depends on the purpose, and judges decide that issue case by case.

How does intoxication relate to the insanity defense?

Voluntary intoxication cannot be used to prove insanity. Insanity is a separate affirmative defense under section 775.027, Florida Statutes, which requires a mental infirmity, disease, or defect that kept the defendant from knowing what he was doing or that it was wrong. The defendant must prove insanity by clear and convincing evidence. Brancaccio shows why the two defenses must be kept separate: an insanity instruction alone did not tell the jury that a reaction to prescribed medication could excuse the conduct.

Does intoxication help at sentencing?

Usually not. Under section 921.0026(3), Florida Statutes, a defendant’s substance abuse or addiction, “including intoxication at the time of the offense,” is not a mitigating factor and “does not, under any circumstances, justify a downward departure.” The one exception is for a nonviolent felony with a scoresheet total of 60 points or fewer, when the court finds the defendant is amenable to a postadjudicatory treatment-based drug court program. Our attorneys build mitigation around treatment, mental health, and other recognized grounds rather than intoxication itself.

That last row matters. In a DUI case, impairment is what the State must prove, so a valid prescription is not a defense to driving while impaired; our post on DUI for prescription drugs in Florida explains that charge.

Frequently asked questions

Can I use being drunk as a defense to burglary or theft in Florida?

No. Voluntary intoxication cannot be used to argue you lacked the intent to commit burglary, theft, or any other crime committed after July 1, 1999. The Brancato Law Firm looks instead at the State’s evidence of intent, entry, and identity, which are often contestable without any intoxication argument.

What if my prescription medication made me act out of character?

That may support an involuntary intoxication defense if you took the medication as prescribed and the reaction was unexpected. The Brancato Law Firm gathers prescription and pharmacy records and consults medical experts, following the approach the court approved in Brancaccio v. State; our criminal mental health defense team handles these cases.

Is it involuntary intoxication if someone drugged my drink?

Florida’s statute bars only voluntary intoxication, so intoxication you did not choose is not covered by that bar. The Brancato Law Firm investigates these claims with toxicology testing and witness evidence, because the claim has to be proven with facts, not just asserted.

Does the prescription exception apply if I took extra pills?

No. Florida courts hold that the exception does not apply when a defendant exceeds the prescribed dosage, as Montero v. State explains. Our attorneys at The Brancato Law Firm review pill counts and fill dates early so we know whether the defense is available before we raise it.

Can intoxication reduce a murder charge in Florida?

Voluntary intoxication cannot be used to argue that a killing was not premeditated. The Brancato Law Firm defends homicide cases on the evidence of premeditation itself, and on involuntary intoxication when prescription records support it, as described on our Tampa homicide attorney page.

Does being intoxicated affect whether my confession can be used?

It can. Impairment is one factor courts consider in deciding whether a statement was voluntary and reliable. The Brancato Law Firm reviews interrogation recordings for signs of impairment and challenges statements taken from people who could not understand their rights.

For how The Brancato Law Firm, P.A. defends these cases, see our Tampa DUI defense practice.

Talk to our attorneys before the State frames the evidence

Prosecutors move early to keep intoxication evidence out, so the medical records need to be gathered before the first pretrial motions. Our attorneys will review your prescriptions and the State’s evidence and tell you whether an involuntary intoxication defense is available. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159; call us at any hour. Our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa. For more about our defense strategies, visit our Criminal Mental Health page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If you were charged with a crime you know you did not commit because you were somewhere else, the most important evidence in your case may already be disappearing: a receipt, a phone record, a security video that overwrites itself in days. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and I have tried more than 150 jury trials to verdict over more than 25 years in Hillsborough County courtrooms. Our attorneys build alibi defenses from records first and witnesses second, because that is the order in which juries tend to believe them.

What is an alibi defense in Florida?

An alibi is proof that the accused was at a different place when the crime was committed. The word is Latin for “elsewhere.” An alibi is a direct denial that you were there, so it attacks the State’s proof of identity.

An alibi is not an affirmative defense like self-defense or insanity. You are not admitting the act and offering a legal excuse. You are saying the State has the wrong person, and the State keeps the full burden of proving you were the one who did it.

Do you have to prove your alibi beyond a reasonable doubt?

No. The defense only needs to raise a reasonable doubt that you were present. Sanders v. State, 779 So. 2d 522 (Fla. 2d DCA 2000), shows how seriously Florida courts take this rule. Bryant Sanders was charged with robbing two men at gunpoint at a St. Petersburg car wash. Five witnesses testified he was at a family barbecue at the time. In closing, prosecutors told the jury four times that the defense had to prove the alibi beyond a reasonable doubt.

The Second District reversed the conviction. It held that “the proof of an alibi is sufficient if it raises a reasonable doubt in the minds of the jury” that the defendant was present, and that shifting the burden deprived Sanders of due process. The court noted that the eyewitnesses saw the robber’s face for only a few seconds and that no physical evidence tied Sanders to the robbery. The Second District hears appeals from Hillsborough, Pinellas, and Pasco Counties, which makes Sanders a decision local prosecutors and judges know well.

What is Florida’s notice of alibi rule?

Florida Rule of Criminal Procedure 3.200 requires the defense to disclose an alibi after the prosecutor makes a written demand. The demand must state, as particularly as the prosecutor knows, the place, date, and time of the alleged crime. The defense then must file and serve a written notice not less than 10 days before trial, or at another time the court sets. The notice must state where the defendant claims to have been and give the names and addresses of the alibi witnesses.

The rule runs both ways. Within 5 days after receiving the defense witness list, the prosecutor must disclose the witnesses the State will call to rebut the alibi. Both sides have a continuing duty to disclose new witnesses.

What happens if the notice of alibi deadline is missed?

The judge may exclude the alibi witnesses, but not your own testimony. Rule 3.200 says the court may exclude alibi evidence “except the defendant’s own testimony,” and it allows the court to waive the rule for good cause.

Small v. State, 630 So. 2d 1087 (Fla. 1994), explains why judges treat this rule strictly. Small was tried for robbery, and his lawyer never filed the notice for an alibi witness, even after a first trial ended in a mistrial. The Florida Supreme Court held that a notice violation “inherently prejudices the prosecution” because the State loses the chance to investigate the alibi. Unlike ordinary discovery violations, the remedy is limited to excluding the evidence or waiving the rule for good cause, and a missing good-cause hearing is reviewed for harm. The lesson for anyone with an alibi is simple: file early, and list every witness.

What makes an alibi convincing to a jury?

Records beat relatives. Juries tend to discount an alibi supported only by family or close friends, because those witnesses have a reason to help. Research supports that instinct. In What Makes a Good Alibi? A Proposed Taxonomy, 28 Law and Human Behavior 157 (2004), psychologists Elizabeth Olson and Gary Wells sorted alibi support into physical evidence and person evidence and found that physical evidence, when present, tended to overwhelm person evidence. They also found that people evaluating alibis did not consider that a stranger who corroborates an alibi might be mistaken about who they saw.

Business records are often the backbone of an alibi. Under section 90.803(6), Florida Statutes, records made at or near the time and kept in the regular course of business are an exception to the hearsay rule, and under section 90.902(11) they can be authenticated by a custodian’s certification instead of live testimony. Phone location evidence has its own strengths and limits, covered in our guide on whether cell phone location evidence can prove your alibi.

Why are alibi cases usually eyewitness cases?

Most alibi defenses answer an identification. If the State had fingerprints, DNA, or video of the accused, an alibi would be hard to raise. The cases where an alibi matters most are the ones built on a witness who picked a face. In 2024, 38 of the 147 exonerations recorded by the National Registry of Exonerations (26%) involved mistaken witness identification, according to the Registry’s 2024 Annual Report.

That is why our attorneys pair an alibi with an attack on the identification itself: how long the witness saw the person, lighting and distance, stress and weapon focus, and how the photo lineup was run. In Sanders, the court specifically noted that the eyewitnesses saw the robber for only seconds. Our Tampa violent crime lawyer page covers how we defend robbery, battery, and other cases that often turn on identification.

Do you have to testify to raise an alibi?

No. You have a constitutional right not to testify, and an alibi can be proven entirely through other witnesses and records. Rule 3.200 also protects your own testimony from exclusion if the notice was missed. Whether you should testify is a strategic decision made with your lawyer after seeing how the State’s case comes in.

What can hurt an alibi defense?

A weak alibi can be worse than none. If the State rebuts an alibi witness, jurors may hold it against the whole defense. Common problems include:

• Inconsistent statements: telling police one location and later claiming another.
• Timing gaps: an alibi that covers 8:00 p.m. when the crime happened at 8:40 p.m.
• Device versus person: a phone’s location proves where the phone was, not who had it.
• Late disclosure: an alibi first raised on the eve of trial invites suspicion and a Rule 3.200 fight.
• Coached witnesses: witnesses who talk to each other before giving statements become easy to impeach.

When should you start building an alibi?

Immediately, because the best proof disappears first. Security video is often recorded over within days, and businesses do not keep every record forever. Our firm sends preservation requests, subpoenas records, and interviews witnesses while memories are fresh. If you are under investigation and have not been charged, our representation before charges are filed can put alibi evidence in front of prosecutors before a filing decision is made.

Frequently asked questions

Can my spouse or parent be my alibi witness in Florida?

Yes. Family members can testify to an alibi, but jurors often weigh their testimony against their interest in protecting you. The Brancato Law Firm looks for records and neutral witnesses that confirm what family members say, so the alibi does not rest on relatives alone.

What if I filed my notice of alibi late?

The judge can still allow the evidence if there is good cause, and your own testimony cannot be excluded under Rule 3.200. The Brancato Law Firm files alibi notices early and complete, and when a deadline problem exists, we ask the court for a good-cause hearing as Small v. State contemplates.

Can cell phone records prove where I was?

They can show where your phone connected to the network or recorded location data, which is strong evidence if other proof ties the phone to you. Our attorneys at The Brancato Law Firm work with records custodians and, when needed, experts to read location data correctly; our post on cell phone alibi evidence explains the limits.

Does the State have to disprove my alibi?

The State must prove beyond a reasonable doubt that you were the person who committed the crime, and an alibi only needs to raise a reasonable doubt about your presence. The Brancato Law Firm objects when a prosecutor suggests otherwise, because Sanders v. State treats that kind of burden shifting as reversible error.

What if I do not remember where I was on the date of the crime?

Start with records rather than memory: bank and card statements, phone history, work schedules, and social media activity can rebuild a day. The Brancato Law Firm helps clients reconstruct timelines before anyone gives a statement, and our violent crime defense work often starts with that timeline.

Can I be charged with a crime if I have an alibi?

Yes. Police can arrest on probable cause, often based on an identification, without checking an alibi first. The Brancato Law Firm can present alibi proof to the State Attorney’s Office early, which can lead prosecutors to drop or decline charges.

Get your alibi evidence secured now

Video and records do not wait for a trial date. Call (813) 727-7159 to have our attorneys start preserving your alibi evidence this week. The Brancato Law Firm, P.A. was founded by Tampa Criminal Defense Attorney Rocky Brancato, and you can call us at any hour; our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking and Haitian Creole-speaking clients. For more about our defense strategies, visit our Violent Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

Many confession cases are decided before trial, at a hearing where the defense asks one question: where is the crime? As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I bring a former police academy instructor’s view of how interrogations are run, and I spent years in the Major Crimes Unit defending homicide, sex crime, and child abuse cases built on statements. I am also the former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. Our attorneys use the corpus delicti rule to test whether the State has a case without the client’s own words.

What is the corpus delicti rule in Florida?

The corpus delicti rule requires the State to prove that a crime occurred, using evidence other than the defendant’s statements, before a confession can be admitted. “Corpus delicti” is Latin for “the body of the crime.” Florida courts have applied the rule for well over a century.

The leading case is State v. Allen, 335 So. 2d 823 (Fla. 1976). Tommy Allen confessed that he was driving the car when his passenger, Curtis Black, was thrown out and killed. The Florida Supreme Court explained the purpose of the rule in one line: “no person be convicted out of derangement, mistake or official fabrication.” The State’s burden is to bring forth “substantial evidence” tending to show the commission of the crime. That proof can be circumstantial, and it does not need to be overwhelming, but it “must at least show the existence of each element of the crime.”

In Allen’s case, the Court found enough independent proof. Witnesses saw Allen get into the driver’s side minutes before the crash, and the position of Black’s body suggested he was the passenger. The confession came in.

Does the rule apply to admissions as well as full confessions?

Yes. A partial admission is treated the same as a full confession. In Burks v. State, 613 So. 2d 441 (Fla. 1993), a truck driver charged with DUI manslaughter under section 316.193, Florida Statutes, told police he was the driver. The Florida Supreme Court held that the State cannot use an admission to fill in a missing element: “The corpus delicti cannot be proven solely by a confession or admission.” Burks’s conviction stood only because other evidence, including his supervisor asking whether Burks could drive the truck away, independently put him behind the wheel.

What must the State prove before your confession comes in?

The State must show two things with independent evidence: that a harm of the type charged occurred, and that it was caused by someone’s criminal conduct. It does not have to prove who did it first. Allen held that the defendant’s identity is not a required predicate for admitting a confession.

Why do false confessions make this rule matter?

People confess to crimes they did not commit, and the numbers prove it. In 2024, the National Registry of Exonerations recorded 147 exonerations in the United States, and 22 of them (15%) involved false confessions, according to its 2024 Annual Report. Three of the 147 were Florida cases.

Legal scholarship explains how this happens. In The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891 (2004), Steven Drizin and Richard Leo studied proven false confessions and the interrogation pressures behind them. Their work is a large part of why courts and defense lawyers treat an uncorroborated confession with caution. The corpus delicti rule is the evidentiary safeguard that keeps a statement like that from standing alone. Our firm also challenges how a statement was obtained, which is a separate fight covered in our guide to fighting a false confession and in our discussion of coerced confessions and forensic psychology.

How is a corpus delicti challenge different from a motion to suppress?

A motion to suppress attacks how police got the statement; a corpus delicti objection attacks whether the State has proof of a crime apart from the statement. The two work together. A confession taken in violation of Miranda, or one that was coerced, can be suppressed even if the crime is well documented. A voluntary, properly warned confession can still be kept out if the State cannot show the crime occurred.

The issue also survives into trial. If the judge admits the confession at a pretrial hearing, our attorneys can renew the objection when the State rests and move for a judgment of acquittal if the independent evidence never filled the gap. Losing one round does not end the issue.

What is Florida’s confession-without-corpus exception in sex crimes?

Section 92.565 lets the State use a confession in certain sex abuse cases without proving the corpus delicti, but only after a judge finds the confession trustworthy. The factors the statute lists point to cases where an alleged victim, such as a very young child or a person who was asleep or incapacitated, cannot describe each element of the offense.

Under section 92.565, Florida Statutes, the exception covers charges including sexual battery under section 794.011, lewd or lascivious offenses under section 800.04, incest, child abuse or neglect involving sexual abuse, offenses under section 827.071, certain human trafficking and computer-solicitation offenses, “any other crime involving sexual abuse of another,” and attempts, solicitations, and conspiracies to commit them. Our Tampa sex crimes lawyer page explains how these charges are defended from investigation through trial.

The statute sets out a specific sequence:

1. The hearing happens outside the presence of the jury.
2. The judge must first find that the State is unable to show the existence of each element of the crime. Relevant factors include whether the alleged victim was physically helpless, mentally incapacitated, physically incapacitated due to age or infirmity, or under 12 years old.
3. The State must then prove by a preponderance of the evidence that there is sufficient corroborating evidence that tends to establish the trustworthiness of the statement.
4. Hearsay is admissible at the hearing, and the court may consider all relevant corroborating evidence, including the defendant’s own statements.
5. The judge must make specific findings of fact on the record.

The statute also applies only to a “memorialized” confession or admission. Whether a statement was preserved, and how, is often the first question our attorneys ask.

Has section 92.565 survived court challenges?

Yes, so far. In State v. Dionne, 814 So. 2d 1087 (Fla. 5th DCA 2002), a man charged with sexual battery on a sleeping victim moved to suppress his confession because the State could not independently prove the crime. The trial court applied the old rule and suppressed it. The Fifth District reversed, holding that section 92.565 is a procedural rule of evidence that “merely changes the predicate” for admitting a confession. It does not lower the State’s burden to prove guilt beyond a reasonable doubt, so it could be applied to offenses committed before it took effect.

The practical lesson from Dionne: in a covered case, the fight moves from “is there a body of the crime?” to “is this confession trustworthy?” That hearing is often where the case is won or lost.

How do our attorneys challenge trustworthiness under section 92.565?

We attack the corroboration, the recording, and the conditions of the interrogation. The statute asks whether independent evidence tends to establish that the statement is true, so we look for facts in the confession that police supplied, facts that do not match the physical evidence, and details the accused could have learned from the accusation itself.

• Contamination: Did the detective reveal key facts before the client repeated them?
• Fit with the evidence: Do the medical findings, timeline, and scene match what the statement says?
• Recording gaps: Is the full interview recorded, or only the final admission?
• Vulnerability: Age, intellectual disability, intoxication, fatigue, and mental illness all bear on reliability.
• Child hearsay overlap: When the accusation comes through a child’s out-of-court statements, we also contest those statements, as explained in our child hearsay guide.

What happens if a confession is the State’s only evidence?

If the State has nothing but the confession and no statutory exception applies, the confession should not be admitted, and without it there is no case. In practice, prosecutors usually have something: a report, an injury, a missing item, a witness. The question is whether that independent evidence shows each element. A charge with a missing element, such as no proof that property was taken without consent, is where the rule does the most work.

Why should you call a lawyer before you are charged?

The strongest corpus delicti defense is a statement that was never made. If detectives want to “clear things up,” you may already be a suspect; our post on the signs you are being investigated covers the warning signs. Our firm offers representation before charges are filed, which can include speaking with detectives for you and presenting information to prosecutors before a filing decision. In Hillsborough County, felony charging decisions are made by the State Attorney’s Office for the 13th Judicial Circuit, and early contact with that office can shape what gets filed.

Frequently asked questions

Can I be convicted in Florida if my confession is the only evidence?

Generally no. Florida requires independent evidence that a crime occurred before a confession can be admitted, unless a statutory exception like section 92.565 applies and a judge finds the statement trustworthy. The Brancato Law Firm reviews the State’s evidence element by element to find what is missing before any trial date is set.

Does the State have to prove I am the person who committed the crime before using my confession?

No. Under State v. Allen, the State must independently show that a crime occurred, but it does not have to independently prove the defendant’s identity before the confession comes in. Our attorneys at The Brancato Law Firm still hold the State to proof beyond a reasonable doubt on identity at trial.

What is a section 92.565 hearing?

It is a hearing outside the jury’s presence where a judge decides whether the State can use a memorialized confession in a covered sex abuse case without proving the corpus delicti. The Brancato Law Firm prepares for these hearings by comparing every detail of the statement against the medical, digital, and witness evidence, and our sex crimes defense attorneys treat that hearing as a trial before the trial.

Does corpus delicti apply in DUI manslaughter cases?

Yes. Burks v. State was a DUI manslaughter case, and the Florida Supreme Court held that the State could not use the defendant’s admission that he was driving to supply a missing element. At The Brancato Law Firm, we examine crash scene evidence, witness timelines, and vehicle data in fatal crash cases to test whether driving can be shown without the statement.

Is corpus delicti the same as a false confession defense?

No. Corpus delicti asks whether there is independent proof of a crime; a false confession defense asks whether the statement is reliable or voluntary. The Brancato Law Firm often raises both, and our team works with forensic psychologists when interrogation tactics are at issue, as described in our guide to fighting a false confession.

Should I talk to detectives to explain my side?

Not without a lawyer. A statement made to “explain” can become the admission that fills a gap in the State’s evidence. The Brancato Law Firm can speak with detectives for you through our pre-file advocacy work.

For how this fits into the rest of a case, see our stage-by-stage guide to the Florida criminal case process.

Talk to our attorneys about your statement

If detectives have your statement, the next step is finding out what the State can prove without it. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159 before your first court date; call us at any hour. Our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking criminal defense clients in Tampa. For more about our defense strategies, visit our Sex Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

Almost every felony jury in a Hillsborough County courtroom has six people in the box, not twelve. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I have tried more than 150 jury trials to verdict in more than 25 years in Hillsborough County courtrooms, almost all of them to six jurors. Our attorneys are now raising and preserving the jury-size issue in cases across Tampa Bay while the Supreme Court decides.

How Many Jurors Sit on a Florida Criminal Jury?

Six — unless the charge is a capital one, such as first-degree murder. Section 913.10, Florida Statutes, sets the number:

That means a person facing decades in prison on a robbery, trafficking, or attempted murder charge in Florida gets half the jury a shoplifting defendant would get in most other states — and half the jury any defendant gets in federal court across the street. The verdict must still be unanimous: all six jurors must agree to convict.

The Brancato Law Firm, P.A. — Tampa trial defense — (813) 727-7159

According to the federal Defender Services Office, Florida is one of only six states that still use fewer than twelve jurors in at least some criminal trials, and Florida uses six-member juries for every noncapital crime. The same June 2026 report counted roughly 5,000 Florida criminal convictions pending on direct appeal, the cases most likely to be affected if the Supreme Court changes the rule. Our attorneys try cases in front of these six-person panels every year, and the arithmetic matters: with six jurors, a defendant needs to reach just one less skeptical mind, but also gets far fewer chances that someone on the panel sees the case the way the defense does.

Which Florida Cases Actually Get a Twelve-Person Jury?

Capital murder cases — and that entitlement holds even when the State chooses not to seek the death penalty. In State v. Griffith, 561 So. 2d 528 (Fla. 1990), the Florida Supreme Court held that a prosecutor “cannot, by electing not to seek the death penalty, change the classification of an offense from capital to noncapital” — so a defendant indicted for first-degree murder keeps the statutory right to twelve jurors unless that right is waived, something the defense should never let happen by accident. Our Tampa homicide attorney page explains how we defend first-degree murder cases from indictment through a twelve-person trial.

The “capital felony” label alone, though, is not what controls. Florida defines a capital case for jury purposes as one where death is a possible punishment, so capital sexual battery has long been tried to six jurors. In State v. Hogan, 451 So. 2d 844 (Fla. 1984), the Florida Supreme Court approved a six-person jury for sexual battery of a child because death was not an available penalty, and in Phillips v. State, 316 So. 3d 779 (Fla. 1st DCA 2021), the First District held that a six-person jury was required for the same charge. A 2023 amendment to section 794.011(2)(a), Florida Statutes, now provides a death-or-life sentencing procedure for that offense, but in Oakes v. State, No. 4D2025-2758 (Fla. 4th DCA June 3, 2026), the Fourth District held that a defendant whose offense predated the amendment still was not entitled to twelve jurors. Sit with what that leaves: charges carrying mandatory life, such as trafficking with decades of minimums, attempted murder, and armed robbery, are decided by six people. In our felony practice across the 13th Judicial Circuit, the twelve-person jury is a genuine rarity, which is exactly why the question the Supreme Court agreed to answer reaches nearly every serious case in this state.

Is a Six-Person Jury Legal?

Yes — for now, because of a case that came out of Florida itself. In Williams v. Florida, 399 U.S. 78 (1970), the U.S. Supreme Court held that “the 12-man panel is not a necessary ingredient of ‘trial by jury,’” and that Florida’s six-person jury did not violate the Sixth Amendment. The Court reasoned that the number twelve was a historical accident rather than a functional necessity, and that what matters is whether the jury is large enough to promote group deliberation, resist outside intimidation, and represent a cross-section of the community.

Eight years later, the Court drew the floor. In Ballew v. Georgia, 435 U.S. 223 (1978), it struck down Georgia’s five-person jury, concluding — based on a body of empirical studies — that “the purpose and functioning of the jury in a criminal trial is seriously impaired, and to a constitutional degree, by a reduction in size to below six members.” So the line has sat at six ever since: five is unconstitutional, six is permitted, and Florida has stayed at the constitutional minimum for over half a century.

Why Does Jury Size Matter?

Because the research the Supreme Court itself relied on in Ballew shows smaller juries deliberate worse. The Ballew Court found that as juries shrink, they are less likely to have members who remember each important piece of evidence, less able to counterbalance individual jurors’ biases, and less likely to represent a true cross-section of the community — and that smaller panels raise the risk of convicting the innocent.

For the defense, the practical stakes are concrete. A Florida verdict must be unanimous, so every juror is a potential holdout against a weak case — and six jurors means half as many people who might catch the flaw in the State’s evidence, half as many life experiences in the room, and far fewer minority voices on any given panel. When our attorneys pick a jury at the Hillsborough County Courthouse, we are choosing six people who will carry the full weight most states spread across twelve. That is exactly the concern now in front of the Supreme Court.

The U.S. Supreme Court Is Reconsidering: Kian v. Florida

On June 15, 2026, the United States Supreme Court granted certiorari in Kian v. Florida, No. 25-6623, to decide whether a defendant is deprived of his Sixth and Fourteenth Amendment rights “to a trial by a 12-person jury when the defendant is charged with a serious felony.” The case comes out of Florida’s Fourth District Court of Appeal, which affirmed in Kian v. State, 421 So. 3d 439 (Fla. 4th DCA 2025), where Hamed Kian was convicted by a unanimous six-person jury of five felony counts of practicing chiropractic medicine with a suspended license. It asks the Court to reconsider Williams itself.

Challengers have been knocking on this door for years. Florida’s appellate courts have repeatedly rejected six-person jury challenges — the Fourth District did so again in Gonzales v. State, No. 4D2025-2161 (Fla. 4th DCA Aug. 26, 2026), citing its earlier decision in Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022), and the U.S. Supreme Court declined to take the issue up as recently as 2024 in Cunningham v. Florida, 144 S. Ct. 1287 (2024). But those same August 2026 opinions now add three words that tell you everything about where this is heading: “But see Kian.” The Court that would not hear the issue two years ago has now agreed to hear it, and the case is set for oral argument on January 13, 2027.

Here is the road that led there:

The Brancato Law Firm, P.A. — (813) 727-7159

Ramos matters in this story for a reason: in Ramos v. Louisiana, 590 U.S. 83 (2020), the Court overruled decades of tolerance for non-unanimous verdicts because history and the jury’s function demanded it. The Kian petition asks the Court to apply that same reasoning to jury size. No one knows how Kian will come out — but the Court does not take cases like this to leave everything as it is.

What Happens to Florida Cases While Kian Is Pending?

Six-person juries remain fully legal, and Florida courts are still bound by Williams until the Supreme Court says otherwise. Florida’s appellate courts made that explicit this summer: in Rogers v. State, No. 6D2025-0883 (Fla. 6th DCA June 29, 2026), the court refused to let a defendant add the jury-size issue after briefing closed, holding that claims based on a cert grant “are speculative and premature.” Critically, it also held that because the defendant left the issue out of his initial brief, he had waived it.

That waiver holding is the practical heart of this entire subject. Rogers also acknowledged the other side of the coin: if the Supreme Court announces a new rule, defendants whose appeals were already final “could seek post-conviction relief to the same extent as any other person” — but whether a new rule would apply retroactively to final cases is a separate question Florida courts would have to resolve. New rules generally apply to cases still pending on direct review; they reach final convictions only through a much narrower retroactivity doctrine. In plain terms: the people best positioned to benefit from a defense win in Kian are the ones whose lawyers put the objection on the record before their case became final.

How Do You Preserve the Jury-Size Issue in Your Case?

By putting it on the record at every stage — even though today’s courts will deny it. When our firm handles a felony case heading to trial while Kian is pending, preservation looks like this:

1. Demand a twelve-person jury in writing before trial. The motion will almost certainly be denied under Williams and § 913.10 — the point is the record.
2. Object when the six-person panel is sworn. A contemporaneous objection anchors the issue at trial, where appellate courts require it to be made.
3. Raise it in the opening brief on appeal. Rogers shows what happens when it appears late: waiver, no matter what the Supreme Court does afterward.
4. Track finality. A case pending on direct review when Kian is decided stands on far stronger ground than one that became final the month before — timing decisions, including whether to seek rehearing, can matter.

None of this costs the defense anything, and all of it is insurance. Our attorneys are building these records now in Hillsborough, Pinellas, and Pasco County cases, because the cheapest issue to preserve is the one you preserve before the law changes.

Facing a Felony Trial in Tampa Bay While Kian Is Pending?

If you or a family member has a felony case heading toward trial, this is a moment when the calendar itself is a defense consideration. The jury that decides the case, the objections made before it is sworn, and the timing of the appeal could all look different a year from now. Call The Brancato Law Firm at (813) 727-7159 — our attorneys can evaluate whether the jury-size issue belongs in your case and make sure nothing is waived while the Supreme Court decides.

Frequently Asked Questions: Florida Jury Size and Kian v. Florida

How many jurors are on a jury in Florida?

Six, in every criminal case except capital cases, which get twelve. Fla. Stat. § 913.10. In our Tampa Bay trials, that means six jurors decide felonies carrying decades of prison exposure.

Does a Florida jury verdict have to be unanimous?

Yes — all six jurors must agree before a defendant can be convicted, and a single holdout means no conviction. That unanimity requirement is one reason jury selection is where our attorneys invest so heavily in every trial.

What is Kian v. Florida?

Kian v. Florida, No. 25-6623, is a U.S. Supreme Court case, accepted for review on June 15, 2026, that will decide whether trying a serious felony to a six-person jury violates the Sixth Amendment. It asks the Court to reconsider Williams v. Florida, the 1970 decision that approved Florida’s six-person jury.

Is a six-person jury unconstitutional?

Not under current law — Williams v. Florida upheld six-person juries in 1970, and Florida courts remain bound by it while Kian is pending. Five-person juries, however, have been unconstitutional since Ballew v. Georgia in 1978. We treat the question as live and preserve it in our clients’ cases.

If the Supreme Court strikes down six-person juries, will it apply to old cases?

Nobody knows yet — new constitutional rules generally apply to cases still pending on direct appeal, while reaching already-final convictions requires a separate retroactivity ruling. That uncertainty is exactly why preserving the issue now matters so much; The Brancato Law Firm is doing that in pending cases rather than betting on retroactivity later.

How long has Florida used six-person juries?

Since 1877. As the Sixth District noted in Rogers v. State (2026), Florida has permitted six-person juries in non-capital cases since an 1877 statute, and the U.S. Supreme Court’s nationwide approval of the practice in 1970 came in a Florida case, Williams v. Florida. In our experience, most clients are surprised to learn the tradition is that old — and that it has never before faced the direct reconsideration it faces now in Kian.

Can my lawyer demand a 12-person jury in Florida right now?

Yes — the demand will be denied under current law, but making it in writing and objecting at trial is what preserves the issue if Kian changes the rule. The attorneys of The Brancato Law Firm, P.A. build that record in felony cases heading to trial. Call (813) 727-7159 for a free, confidential consultation.

For more about our defense strategies, visit our Top-Rated Tampa Homicide Attorney page.

Related reading: How Trial Preparation Builds a Stronger Defense · How to Decide Whether to Accept a Plea Bargain · How Does a Bond Hearing Work in Tampa? · The Complete Guide to Homicide Charges in Florida

For how this fits into the rest of a case, see our guide to each stage of a Florida criminal case.

The Law May Be About to Change — Your Record Should Be Ready

Kian v. Florida is set for argument on January 13, 2027, and the defendants who benefit will be the ones whose lawyers preserved the issue before the decision came down. If you’re facing a felony charge in Hillsborough, Pinellas, or Pasco County, call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159. What goes on the record before your trial may decide what relief is available after the Supreme Court rules. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If police placed your phone at a crime scene, the case against you may rest on data the Constitution now protects. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former police academy legal instructor, I taught officers where the Fourth Amendment line sits, and I have spent more than 25 years in Hillsborough County courtrooms. Our attorneys use that line every week in suppression litigation, and Chatrie just redrew it for every criminal case in Florida built on cell-phone location data.

What Did the Supreme Court Decide in Chatrie v. United States?

The Supreme Court held that when police obtained a suspect’s Google “Location History” through a geofence warrant, they conducted a Fourth Amendment search — because people keep a reasonable expectation of privacy in their cell-phone location data. Chatrie v. United States, 146 S. Ct. 2193 (2026), extends the Court’s landmark 2018 decision in Carpenter v. United States, 585 U.S. 296 (2018) (which protected cell-site location records) to the far more precise location logs generated by smartphone apps.

Three points from the decision matter most for anyone facing charges. First, duration doesn’t save the government: the Court rejected the argument that a “short” window — the two hours pulled in Chatrie’s case — is too little to trigger the Fourth Amendment, explaining that even brief location records can reveal deeply private facts. Second, storage by a third party doesn’t matter: the Court held the “third-party doctrine” does not apply, because location data is “not truly shared” in any meaningful sense — it is simply the automatic price of using a modern phone. Third, the Court decided only that a search occurred. It vacated the Fourth Circuit’s judgment and sent the case back to decide whether the warrant satisfied probable cause and particularity, and whether the good-faith exception saves the evidence if it did not.

What Was the Chatrie Case About?

The case began with a bank robbery that stumped investigators. On May 20, 2019, a man robbed a credit union in Midlothian, Virginia; witnesses and surveillance showed him approaching from the corner of a neighboring church while appearing to talk on a cell phone, but the trail went cold. Police then obtained a geofence warrant directing Google to identify devices with Location History enabled near the credit union around the robbery. That process ultimately pointed to Okello Chatrie, whose phone data placed him at the scene — two hours of his movements, pulled from Google’s servers. He moved to suppress, lost on good-faith grounds in the lower courts, and the Supreme Court took the case to answer the threshold question: was this a “search” at all? Six Justices said yes.

What Is a Geofence Warrant — and Can Google Still Answer One?

A geofence warrant works in reverse: instead of naming a suspect and searching their data, police draw a virtual perimeter around a crime scene and ask a company — most famously Google — to identify every device inside it during a time window. The process in Chatrie ran in steps: first an anonymized list of devices in the zone, then expanded data to narrow the list, then the “unmasking” of specific accounts — names, emails, phone numbers. Justice Jackson’s concurrence flagged the core defect defense lawyers now argue: the later steps often happen with no criteria and no judge supervising which devices get unmasked, leaving “too much to the discretion” of the officers.

Geofence Surveillance, By the Numbers

The scale of this surveillance tool is why the decision matters far beyond one Virginia robbery — the numbers below come from the opinion itself.

Two details from the opinion deserve emphasis. Location History runs constantly in the background once enabled — whether or not the app is open, whether or not the phone is in use — and it keeps running even if the user deletes the app that turned it on. And Android users are specifically warned their devices will not “work correctly” unless they turn it on. The Court treated that reality for what it is: tracking as a default condition of modern life, not a voluntary broadcast of your whereabouts.

Is My Cell-Phone Location Data Protected by the Fourth Amendment?

Yes — after Chatrie, your historical location data is constitutionally protected whether it comes from cell towers or from app-based logs, and regardless of how short the time window is. The decision closes the two arguments the government had been using to avoid Carpenter.

The undecided fourth row is not a footnote — it is the battleground. A ruling that a search occurred means nothing in a specific case until a court examines whether the warrant (if there was one) was supported by probable cause and described the search with particularity. That examination is defense work, done case by case, device by device.

How Did the Justices Vote in Chatrie?

Justice Kagan wrote the majority opinion, joined by Chief Justice Roberts and Justices Sotomayor, Kavanaugh, and Jackson — with Justice Gorsuch concurring in the judgment, making six votes for the outcome. Justice Jackson added a concurrence (joined by Justice Sotomayor) arguing the multi-step geofence process gave officers an unsupervised “roving commission.” Justice Gorsuch would have reached the result on different reasoning. Justice Alito dissented — warning the decision “will send seismic waves through our Fourth Amendment doctrine” — joined in part by Justices Thomas and Barrett, and Justice Barrett filed her own dissent.

The lineup matters for what comes next: the majority’s reasoning was joined by five Justices, the case produced four separate opinions, and the open questions — warrant validity, good faith, other kinds of digital records — will be litigated against that backdrop for years.

Does Chatrie Apply to Criminal Cases in Florida?

Yes — immediately and automatically. Florida’s own constitution, Article I, Section 12, commands that Florida’s search-and-seizure right “shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” So Chatrie is not persuasive authority here; it is the governing rule in every Florida courtroom, from the 13th Judicial Circuit in Tampa outward.

Florida law enforcement already works with location technology under state statutes like Fla. Stat. § 934.42, which lets officers get court orders for mobile tracking devices — and which expressly makes U.S. Supreme Court standards govern their installation and monitoring. After Chatrie, those standards now clearly include a warrant requirement for historical app-based location data. In practice, our attorneys look for location evidence in Tampa Bay cases in three familiar places: geofence-style requests tied to a crime scene, account-specific demands for a suspect’s Google or Apple data, and downloads from a seized phone itself. Each source now has its own constitutional checklist, and a defect in any of them supports a motion to suppress. Our Tampa forensic science defense attorney page explains how we bring in digital-forensics experts to test that evidence.

What Comes Next — Are Reverse Keyword Warrants Legal?

Chatrie answered the geofence question but teed up the next fight: reverse keyword warrants, where police ask a search engine to identify everyone who searched a particular term — a victim’s name, an address, a chemical — during a window of time. The logic of Chatrie (a dragnet over mostly innocent people’s private data, revealed only because using the internet is the price of modern life) applies with obvious force, but the Supreme Court has not yet decided it, and lower courts are split on how far Carpenter and now Chatrie reach. The same goes for other data dragnets: tower dumps, automated license-plate reader networks, and purchases of location data from commercial brokers. Currency matters in this area more than almost any other — the constitutional rules your case is judged by may literally change between arrest and trial, which is why preserving these issues early is essential.

What Should You Do If Police Used Phone Location Data in Your Case?

Get the warrant paperwork in front of a defense lawyer before you make any decisions about your case. After Chatrie, the questions our attorneys ask are concrete: Was there a warrant at all, or just a subpoena or “exigent” request? Does the affidavit establish probable cause tied to the place and time searched? Did the warrant limit the geofence’s size, duration, and the unmasking steps — or did officers get a blank check? Was your data pulled at step one or only after unsupervised narrowing? Every one of those defects is a suppression argument, and in a case built on placing your phone at a scene, suppression is usually the whole case. Location-data challenges also travel with the rest of the digital-privacy toolbox — see our guides to whether the State can get your medical records in a DUI case and what to do after being arrested in Tampa. And because these motions are won on timing — witnesses’ memories, preservation letters to Google, litigation before the State’s filing decision — the sooner the defense starts, the more options you have. If you learn you are under investigation before any arrest, our representation before charges are filed can put those challenges in front of the prosecutor early.

For more about our defense strategies, visit our Tampa Criminal Forensic Science Attorney page.

For how this fits into the rest of a case, see our overview of how a Florida criminal case moves from investigation to appeal.

Frequently Asked Questions

Do police need a warrant to get my Google location history?

Yes. After Chatrie v. United States (2026), obtaining your historical cell-phone location data — including Google Location History — is a Fourth Amendment search, so police generally need a valid warrant supported by probable cause. Our attorneys examine whether the warrant in your case actually meets those requirements, because “a warrant existed” is not the same as “the warrant was valid.”

Can police still use geofence warrants after Chatrie?

Geofence warrants were not banned — the Court held only that they are searches, which means they require valid warrants. Whether any particular geofence warrant satisfies probable cause and particularity is now the contested question, and Justice Jackson’s concurrence gives the defense a roadmap for attacking the unmasking steps. We raise those challenges by motion to suppress in Florida courts.

Does Chatrie apply if police only got a couple hours of my location data?

Yes — that was precisely the government’s argument, and the Court rejected it. Two hours of Location History was enough to trigger the Fourth Amendment because even short windows reveal private associations. There is no minimum number of hours before your rights apply.

Will the evidence in my case be thrown out automatically?

No. Chatrie decided that a search occurred; whether evidence is suppressed depends on whether the warrant was valid and whether the good-faith exception applies — the questions remanded in Chatrie’s own case. That is exactly the analysis The Brancato Law Firm, P.A. performs when location data appears in discovery, because the suppression fight is where these cases are won or lost.

How do I know if a geofence warrant was used in my case?

You usually learn it from discovery — search warrant returns, affidavits, or references to Google legal process in reports. Defense counsel can demand the full warrant package, the data Google produced at each step, and the communications around it. If you were arrested in Hillsborough, Pinellas, or Pasco County and phone location evidence is involved, The Brancato Law Firm, P.A. can obtain and audit that paperwork.

Does turning off Location History protect me?

Turning it off stops Google’s Location History logging going forward, but other apps, your carrier’s cell-site records, and data brokers still generate location trails — each with its own legal protections. Chatrie and Carpenter now protect the two biggest categories. The safest assumption is that your phone creates records someone may one day try to use, and the Constitution now stands between those records and warrantless access.

Chatrie redrew the digital-privacy map on June 29, 2026, and the next rounds — warrant validity, good faith, keyword warrants — are being litigated right now. If cell-phone location data shows up anywhere in your Tampa Bay case, call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159 before the State’s filing decision is made. Suppression issues are strongest when they are raised early, and location-data challenges are the sharpest new tool in the box. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking and Haitian Creole-speaking clients.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

Being arrested is terrifying. Being arrested when you cannot understand what is happening—or cannot communicate with your lawyer, the judge, or the prosecutor—is even worse. The same is true if your child is facing juvenile charges and you, as the parent, do not speak English.

Florida law guarantees you the right to an interpreter in criminal and juvenile delinquency cases. This article explains who qualifies, how to request an interpreter, and what to do if the court fails to provide one.

Your Rights Under Florida Law

Two Florida rules protect your right to understand and participate in your own case:

Rule 2.560 – Spoken Language Interpreters

Under Florida Rule of General Practice and Judicial Administration 2.560, the court must appoint an interpreter in any criminal or juvenile delinquency proceeding if:

• The accused cannot understand or has limited understanding of English
• The parent or legal guardian of an accused juvenile cannot understand English
• The victim or alleged victim cannot understand English

The word “must” is important. This is not discretionary. If you qualify, the court is required to provide an interpreter.

Rule 2.540 – ADA Accommodations (Deaf and Hard of Hearing)

If you are deaf or hard of hearing, Florida Rule of General Practice and Judicial Administration 2.540 requires the court to provide accommodations under the Americans with Disabilities Act (ADA). This includes:

• American Sign Language (ASL) interpreters
• CART (Communication Access Realtime Translation) services
• Assistive listening devices
• Other auxiliary aids and services

These accommodations are provided at the court’s expense, not yours. Separately, § 90.6063, Florida Statutes, requires the court to appoint a qualified interpreter whenever a deaf person is a defendant, complainant, witness, or juror, paid from county funds.

Who Is Entitled to an Interpreter?

In criminal and juvenile delinquency cases, the following people are entitled to a court-appointed interpreter:

• The defendant – If you are the person facing charges, the court must ensure you understand every proceeding.
• Parents or guardians of juvenile defendants – If your child is facing juvenile delinquency charges, you have the right to understand what is happening.
• Victims and alleged victims – The court must also provide interpreters for victims who do not speak English.
• Witnesses – If a witness cannot testify in English, the court must provide an interpreter under the Florida Evidence Code (§ 90.606, Florida Statutes).

What About My Family Members?

If your spouse, parent, or other family member wants to attend your hearing but does not speak English or is deaf, they may be able to request accommodations depending on their role:

• If they are the victim – The court must provide an interpreter.
• If they are the parent of a juvenile defendant – The court must provide an interpreter.
• If they are a witness – The court must provide an interpreter when they testify.
• If they are a spectator with a disability – They may request ADA accommodations under Rule 2.540.

For ADA accommodations, the request should be made at least 7 days before the court date. Contact information for the court’s ADA coordinator is typically available on the circuit court’s website and on court notices.

Do Not Use Family Members as Interpreters

Here is why:

• They lack certification. Court interpreters must meet specific qualifications. An untrained interpreter can make critical errors that change the meaning of testimony.
• You risk compromising attorney-client privilege. Rule 2.560(g) protects communications made through a qualified interpreter. Using an unqualified interpreter endangers confidentiality.
• The State can use the interpretation against you. If the interpreter translates inaccurately, the State may use your own words—incorrectly translated—as evidence.
• The court must provide an interpreter. You should not have to solve this problem yourself. Insist on your right to a qualified interpreter.

How to Request an Interpreter

If You Have an Attorney

Tell your attorney immediately that you need an interpreter. Your attorney will notify the court and ensure one is provided for all hearings, depositions, and meetings.

If You Do Not Have an Attorney

Tell the court at your first appearance. The judge should ask if you need an interpreter. If no one asks, speak up. Say: “I need an interpreter. I do not speak English well enough to understand these proceedings.”

For ADA Accommodations (ASL, CART, Assistive Devices)

Under Rule 2.540, you should request ADA accommodations at least 7 days before your court date. The process is:

• Contact the court’s ADA coordinator (contact information is on court notices and the circuit website)
• Describe the accommodation you need (ASL interpreter, CART, etc.)
• Provide the date and location of your court hearing

If your court date is less than 7 days away, contact the ADA coordinator immediately. The court may waive the timing requirement.

What Languages Are Available?

Florida courts provide interpreters for many languages. The court prefers to use certified interpreters—professionals who have passed testing and meet specific qualifications. The need is large here. According to the U.S. Census Bureau’s QuickFacts, 30.7 percent of Hillsborough County residents age 5 and older spoke a language other than English at home in the 2020 to 2024 American Community Survey, compared with 30.6 percent statewide. In Hillsborough County and throughout Florida, interpreters are commonly available for:

• Spanish
• Haitian Creole
• Portuguese
• Vietnamese
• Mandarin and Cantonese
• Arabic
• American Sign Language (ASL)
• Many other languages

If a certified interpreter is not available for your language, the court must still find a qualified interpreter. Under Rule 2.560(f)(3), a judge who appoints an interpreter in exceptional circumstances must first find on the record that the interpreter is competent.

What If the Court Does Not Provide an Interpreter?

If you requested an interpreter and the court failed to provide one, tell your attorney immediately. Proceeding without an interpreter when one is required can be grounds for appeal or other relief.

If you are a defendant and the court proceeds without ensuring you understand the proceedings, your constitutional rights may be violated. The right to understand your charges, the evidence against you, and the proceedings is fundamental to due process.

If you need a lawyer who speaks your language, learn about our Spanish-speaking criminal defense lawyer in Tampa.

For how this fits into the rest of a case, see our overview of how a Florida criminal case moves from investigation to appeal.

Frequently Asked Questions

About the Author

Tampa Criminal Attorney Rocky Brancato is the founder of The Brancato Law Firm, P.A., a Tampa criminal defense practice. With more than 25 years of experience—including service as Chief Operations Officer of the Hillsborough County Public Defender’s Office, where he oversaw a staff of over 100 attorneys, Rocky has handled thousands of criminal cases and understands the challenges that non-English speakers and individuals with disabilities face in the court system.

A language barrier should never decide your case. If you or a family member is facing criminal charges in Hillsborough, Pinellas, or Pasco County, call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159 before your next court date. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

Filming an arrest on your phone is legal, but the way you film it can get you arrested. As a former police academy instructor, a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys, and the founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I have seen these encounters from the training side and the defense side. Our attorneys defend people arrested while recording police, and the cases usually turn on distance, warnings, and what the video itself shows.

Is it legal to record police in Tampa?

Yes. In Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000), a Georgia couple sued after police kept Mr. Smith from videotaping officers. The Eleventh Circuit, whose decisions bind federal courts in Florida, held that people have “a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct,” though it found the Smiths had not shown the officers violated that right. The right covers sidewalks, streets, parks, and other public places in Tampa and Hillsborough County.

The right has limits. In Crocker v. Beatty, 995 F.3d 1232 (11th Cir. 2021), a driver stopped on the median of I-95 in Martin County to photograph a fatal crash, and a deputy took his phone. The Eleventh Circuit held the deputy had qualified immunity on the First Amendment claim because it was not clearly established that Smith protected photographing from a highway median at a chaotic crash scene. Crocker still won $1,000 from a jury on his separate Fourth Amendment claim over the phone seizure. The lesson: film from a lawful place, and the seizure of your phone can be challenged even when the recording claim fails.

Scholars have tied this right to the role phone video now plays in public debate. Professor Seth F. Kreimer’s article “Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record,” 159 University of Pennsylvania Law Review 335 (2011), argues that recording images is protected expression, not mere conduct. Encounters with police are common: the Bureau of Justice Statistics report Contacts Between Police and the Public, 2022 found that 19% of U.S. residents age 16 or older, about 49.2 million people, had contact with police in 2022.

What does Florida’s 25-foot buffer law, section 843.31, prohibit?

Section 843.31, Florida Statutes, created by chapter 2024-85, Laws of Florida (SB 184) and effective January 1, 2025, makes it a crime to knowingly and willfully violate a first responder’s verbal warning not to approach and to approach or remain within 25 feet with the intent to impede or interfere with the responder’s duties, threaten the responder with physical harm, or harass the responder. “First responder” includes law enforcement officers, correctional probation officers, firefighters, and emergency medical care providers.

A violation is a second-degree misdemeanor, punishable by up to 60 days in jail and a fine of up to $500 under sections 775.082 and 775.083. Standing within 25 feet is not a crime by itself, and neither is recording. The intent element is where most of these cases are won or lost.

What other charges do people face for filming police?

The most common charge is resisting an officer without violence under section 843.02, Florida Statutes, a first-degree misdemeanor punishable by up to one year in jail. That charge requires proof that the officer was engaged in the lawful execution of a legal duty and that the person obstructed or opposed it. Filming, by itself, is not obstruction. Refusing a lawful order to move, physically blocking an officer, or stepping into an active scene can be.

In Hillsborough County, these charges are misdemeanors filed in county court, and a person taken into custody is booked at the Orient Road Jail. Our Hillsborough County criminal defense attorney team reviews body camera footage, the bystander’s own video, and dispatch records to test the officer’s account of distance and intent.

Can police make you stop recording or delete your video?

Officers can give lawful orders that affect where you stand, but they cannot lawfully order you to delete a recording, and a warrantless search of your phone is generally prohibited under the Fourth Amendment. If an officer seizes your phone as “evidence,” do not consent to a search, do not unlock it, and say clearly that you do not consent. That refusal preserves a later motion to suppress and, as Crocker shows, a seizure claim.

Does Florida’s wiretap law ban recording police audio?

Usually not for police encounters in public. Section 934.03, Florida Statutes, makes it a third-degree felony to intercept an “oral communication” without the consent of all parties, but section 934.02 defines oral communication as one made with a justified expectation that it is not being intercepted. In Waite v. State, No. 5D2023-1354 (Fla. 5th DCA Aug. 16, 2024), a Citrus County man was charged with intercepting oral communications for secretly recording his conversations with on-duty sheriff’s deputies about official business. The Fifth District held the deputies had no reasonable expectation of privacy in those conversations and reversed the denial of his motion to dismiss those charges.

There is a caution. A concurring judge in Waite noted that phone calls are “wire” communications, not oral ones, and that secretly recording a phone call with an officer could be charged under a different part of the statute. Recording an officer you can see in public is very different from secretly recording a private phone call, and the safest course is to record openly.

How can you film police safely in Tampa?

1. Record openly from a lawful place. Sidewalks and public property are best; do not stand in a roadway, median, or active crime scene.
2. Keep your distance. Use zoom rather than stepping closer. Staying 25 feet back avoids a section 843.31 charge entirely.
3. Obey a warning to back up. Move, keep recording, and say aloud that you are complying so the video captures it.
4. Do not touch officers or equipment, and do not block anyone’s path.
5. Do not unlock or hand over your phone. State that you do not consent to a search.
6. Save and back up the video. Upload it to cloud storage quickly; it may be the best evidence in your case or someone else’s.

Frequently asked questions

Is it illegal to film police within 25 feet in Florida?

No, not by itself. Section 843.31 requires a verbal warning, a knowing violation, and intent to interfere, threaten, or harass, so filming within 25 feet without that intent is not a crime under that statute. The Brancato Law Firm uses the video and the officer’s own body camera to contest the intent element in these cases.

Can I be arrested for recording a traffic stop in Tampa?

Recording a traffic stop is legal, including your own stop, as long as you follow lawful commands and do not interfere. Our attorneys at The Brancato Law Firm defend drivers and passengers when a recording leads to a resisting charge, and we often use that same recording as the defense.

Can police take my phone because I recorded them?

Officers sometimes seize phones as evidence, but searching the phone generally requires a warrant or your consent. The Brancato Law Firm challenges unlawful phone seizures and searches with a motion to suppress through our Hillsborough County defense practice.

Can charges for filming police be dropped in Florida?

Yes. Section 843.31 and resisting charges are frequently dropped or dismissed when video shows the person kept distance, complied with warnings, or did not interfere. The Brancato Law Firm gathers bystander video and body camera footage early, before it is overwritten.

Is it legal to record police inside a police station in Florida?

The answer depends on the area, because lobbies and secure areas are not the same as a public sidewalk, and federal courts have treated recording inside government buildings differently from recording outdoors. Our attorneys at The Brancato Law Firm advise checking posted rules and leaving rather than arguing if told to stop in a non-public area.

For how this fits into the rest of a case, see our guide to each stage of a Florida criminal case.

Talk to a Tampa criminal defense attorney about a recording arrest

Video from the scene, yours and the officers’, is the evidence that wins these cases, and body camera footage is not kept forever. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159 as soon as you are released so our attorneys can request it. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking criminal defense clients in Tampa. For more about our defense strategies, visit our Hillsborough County Criminal Defense page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

In a sexual battery case that comes down to one person’s word against another’s, some of the most important rulings happen before a jury is seated, when the judge decides what the jury will be allowed to hear about the accuser. I learned how those cases are built as a Major Crimes Unit attorney handling sex crime and child abuse cases. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and I have tried more than 150 jury trials to verdict. Our attorneys prepare rape shield motions early because the evidence the statute allows must be proven to the judge before trial, in writing and with witnesses ready.

What does Florida’s rape shield law say?

Florida’s rape shield law says that “specific instances of prior consensual sexual activity between the victim and any person other than the offender may not be admitted into evidence” in prosecutions for sexual battery, lewd and lascivious offenses, and human trafficking. That rule appears in section 794.022(2), Florida Statutes, and it covers cases charged under section 787.06, section 800.04, and section 794.011, Florida’s sexual battery statute.

The same statute contains other rules that shape every sex crime trial. The accuser’s testimony “need not be corroborated,” so a case can go to a jury on testimony alone. Reputation evidence about the accuser’s sexual conduct, and evidence offered to show that the accuser’s manner of dress “incited the sexual battery,” may never be admitted. And a defendant’s use of a condom, or an accuser’s request that one be used, is not by itself relevant to whether a crime happened or whether there was consent. At The Brancato Law Firm, we walk clients through these rules at the first meeting so they understand which arguments are available and which are off the table.

Why does the rape shield law matter in Florida sex crime cases?

The rape shield law matters because many Florida sex crime cases rest almost entirely on the accuser’s credibility, and the statute decides which credibility evidence the jury hears. The number of these prosecutions is substantial. In 2025, Florida recorded 1,933 arrest events for rape, including 74 in Hillsborough County, according to Florida Department of Law Enforcement arrest data published on the Florida Department of Health’s FLHealthCHARTS. That statewide figure is about 41 percent lower than the 3,288 rape arrest events recorded in 2006 in the same data series. Each of those arrests can lead to a prosecution in which section 794.022 controls the evidence.

Legal scholars disagree about where the line should sit. Law professor Michelle J. Anderson argued in a 2002 analysis of rape shield laws that the exceptions in most state statutes weaken the protection the laws promise accusers. For a person accused in Florida, the practical lesson runs the other way: the exceptions are real, but they are narrow, and a judge will apply them only when the defense proves the specific facts. Our attorneys at The Brancato Law Firm build each exception on documents and witnesses, not on general claims about the accuser.

What are the exceptions to Florida’s rape shield law?

Florida’s rape shield law has two written exceptions in the statute and one constitutional exception created by the courts. Each one requires the defense to show the judge, outside the jury’s presence, exactly why the evidence matters to the case.

Exception 1: Proof the defendant was not the source of semen, pregnancy, injury, or disease

Evidence of the accuser’s activity with someone else is admissible if it may prove that the defendant “was not the source of the semen, pregnancy, injury, or disease.” In Audano v. State, 641 So. 2d 1356 (Fla. 2d DCA 1994), a Second District case, a nurse testified that a child’s physical findings showed intercourse that could have happened at any time in the prior three years. The defense was barred from showing that someone else had abused the child during that period. The court held the exclusion was error, explaining that when the State offers medical evidence of intercourse, the defendant is entitled to show prior intercourse with someone else, and it reversed for a new trial. Our post on how to challenge SANE exam evidence explains how this exception works with the medical file.

Exception 2: A pattern of conduct so similar that it is relevant to consent

When consent is the defense, the statute allows evidence of “a pattern of conduct or behavior” by the accuser “so similar to the conduct or behavior in the case that it is relevant to the issue of consent.” Courts read this narrowly. In Carlyle v. State, 945 So. 2d 540 (Fla. 2d DCA 2006), the defense argued that an accuser’s past prostitution showed a pattern, and the Second District called the argument that “prostitution is prostitution” insufficient. A pattern means repetitive conduct that closely resembles the defendant’s version of the encounter. Our attorneys look for specific, repeated, documented conduct before we rely on this exception.

Exception 3: The defendant’s right to a full and fair defense

The rape shield rule gives way when applying it would deny the accused a fair trial. In Lewis v. State, 591 So. 2d 922 (Fla. 1991), a stepfather argued that his stepdaughter invented the accusation to keep a scheduled gynecological exam from revealing her sexual relationship with her boyfriend. The trial court kept that evidence out. The Florida Supreme Court held that when the rule “interferes with confrontation rights, or otherwise precludes a defendant from presenting a full and fair defense, the rule must give way to the defendant’s constitutional rights,” and it sent the case back.

The Second District applied Lewis a year later in Dixon v. State, 605 So. 2d 960 (Fla. 2d DCA 1992). The prosecutor asked jurors how a five-year-old could describe sexual acts unless the accusation were true, while the defense had been barred from calling a witness who said he had seen the child engage in sexual play weeks earlier. The court held that the testimony was relevant and “critical” to the fabrication defense, and it reversed. Motive to fabricate and the source of a child’s sexual knowledge are two of the most common ways our attorneys at The Brancato Law Firm raise this exception.

What evidence is not covered by the rape shield law?

The rape shield law does not cover prior sexual activity between the accuser and the defendant, or accusations of nonconsensual acts by other people. Florida appellate courts have said the statute “only relates to consensual sexual activity with a person other than the accused,” a phrase from Gomez v. State, 245 So. 3d 950 (Fla. 4th DCA 2018) that the First District repeated in Thorne v. State, 271 So. 3d 177 (Fla. 1st DCA 2019). That evidence is still subject to the ordinary rules of relevance, and the judge can exclude it if its value is outweighed by unfair prejudice.

• Prior relationship with the defendant. Gomez held that “the statute does not prohibit admission of sexual incidents between the victim and offender.” A prior relationship can matter to consent and to motive.
• Accusations against other people. In Thorne, the accuser named three other men in an advocacy center interview but did not name the defendant. The First District held the rape shield law did not apply and that excluding the evidence was error, though it found the error harmless on that record.
• Another person as the attacker. In Vincent v. State, 368 So. 3d 993 (Fla. 4th DCA 2023), the trial court used the rape shield law to stop the defense from suggesting someone else raped the accuser. The Fourth District agreed that was error, but affirmed because DNA proved the defendant fathered the child.
• Prior false accusations. A prior accusation that was false is not “consensual sexual activity,” so the statute does not bar it. Gomez explained that admissibility turns on relevance, such as similarity to the current accusation. Our post on whether prior accusations can be used against you covers the other side of that issue.

What did the Second District decide in Johnson v. State in 2026?

In Johnson v. State, No. 2D2024-0982 (Fla. 2d DCA Sept. 25, 2026), the Second District Court of Appeal reversed two sexual battery convictions because the jury was not allowed to hear that, during a 2013 Department of Children and Families investigation, the accuser described sexual abuse by her stepfather while denying any sexual abuse by the defendant, her stepuncle. The trial judge in Sarasota County let the defense mention “abuse” in general terms but barred any reference to its sexual nature. The jury convicted on two counts and acquitted on three.

The Second District held that the sexual nature of the earlier allegation was “necessary to adequately draw a comparison” with the abuse she did not report against the defendant during the same interview, and that it supported the defense theory that the later accusation was fabricated. Because the case was “he said, she said,” the error was not harmless, and the court ordered a new trial on the two counts. The lesson for defendants is that a statement an accuser made years earlier to DCF or a Child Protection Team can be powerful evidence, and the defense should fight to present it in full rather than accept a watered-down version. Johnson binds trial judges in Hillsborough, Pinellas, and Pasco Counties, which sit in the Second District.

How does the in camera hearing work?

An in camera hearing is a private hearing, outside the jury’s presence, where the judge decides whether evidence of the accuser’s sexual history fits an exception before anyone mentions it at trial. The statute requires that the evidence be “first established to the court in a proceeding in camera,” so the defense carries the burden of showing the judge exactly what the evidence is and why it matters.

In our experience in Hillsborough County courtrooms, the defense that wins an in camera hearing is the one that arrives with the specific witnesses and documents, not a general argument about the accuser. Judges in the 13th Judicial Circuit rule on the record in front of them, and a vague proffer usually means the evidence stays out and the issue is weaker on appeal. Our Hillsborough County criminal defense attorneys prepare these motions alongside depositions so the proffer is complete.

What should you do if you are accused of a sex crime in Florida?

If you are accused of a sex crime in Florida, do not speak with investigators, do not contact the accuser, and preserve every message and record that shows your relationship and the accuser’s statements. The evidence that supports a rape shield exception, such as prior messages, earlier reports, or medical records, can disappear if no one asks for it early. If you think you are under investigation but have not been charged, our representation before charges are filed can address the case before the State decides what to file. For the charges themselves, see our guide to what sexual battery is in Florida, and for cases involving children, our guide to child hearsay in sex cases.

Frequently asked questions about Florida’s rape shield law

Can my lawyer ask about the accuser’s past relationships at trial?

Usually not about specific sexual activity with other people, unless the judge first finds an exception applies at an in camera hearing. The Brancato Law Firm files those motions before trial so the judge rules on a full record rather than an objection in front of the jury, as our Tampa sex crimes defense lawyers do in every contested case.

Does the rape shield law apply to a prior relationship between me and the accuser?

No. The statute covers only activity with people other than the defendant, so a prior relationship between the accuser and the accused is judged by ordinary relevance rules. Our attorneys at The Brancato Law Firm use that history when it bears on consent or on a motive to accuse.

Can the defense show the accuser made a false accusation before?

It can, if the earlier accusation is relevant, such as being similar to the current one or showing a motive. A prior false accusation is not consensual sexual activity, so section 794.022 does not bar it, and The Brancato Law Firm investigates earlier reports to DCF, police, and schools to find them. The leading appellate discussion is in Gomez.

Does the rape shield law apply in child sex abuse cases?

Yes. The statute applies to prosecutions under section 800.04, which covers lewd and lascivious offenses against children, as well as sexual battery. Our attorneys at The Brancato Law Firm often rely on Dixon and Audano in child cases, where the source of a child’s knowledge or injury is the central question; our guide to Florida’s age of consent explains the underlying charges.

Can the prosecutor bring up my sexual history?

The rape shield statute protects the accuser, not the defendant. Evidence of a defendant’s other sexual conduct is governed by the Williams rule and related statutes instead, and The Brancato Law Firm challenges that evidence through pretrial motions to exclude or limit it.

Can sexual battery charges be dropped in Florida?

Yes. Prosecutors can drop or reduce charges when the evidence, including evidence a rape shield ruling lets in, undermines the accuser’s account. Our attorneys at The Brancato Law Firm present that evidence to the State Attorney’s Office early when it gives the client the best chance at a dismissal.

For how this fits into the rest of a case, see our guide to each stage of a Florida criminal case.

Talk to a Tampa sex crimes defense attorney

Rape shield issues are decided before trial, so the time to prepare them is now, not the week before jury selection. Our attorneys will review the discovery, identify the evidence an exception may allow, and prepare the motion and witnesses the judge will expect. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159 at any hour; we defend clients in Hillsborough, Pinellas, and Pasco Counties from an office two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish and Haitian Creole speakers facing criminal charges.

For more about our defense strategies, visit our Sex Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If you were arrested after days of messages with someone who turned out to be an undercover deputy, the first thing our attorneys look at is who pushed the conversation toward a crime. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former police academy instructor who taught officers how investigations are supposed to be run. I have tried more than 150 jury trials to verdict, and our attorneys use that experience to take sting operations apart message by message, from the first contact to the arrest.

What is entrapment under Florida law?

Entrapment happens when a law enforcement officer, or someone working with or for one, induces or encourages a person to commit a crime using methods that create “a substantial risk that such crime will be committed by a person other than one who is ready to commit it.” That is the definition in section 777.201, Florida Statutes. The statute covers informants and civilians acting as police agents, not only sworn officers.

Under the same statute, a person “shall be acquitted” if he or she proves by a preponderance of the evidence that the criminal conduct occurred as a result of an entrapment. Preponderance means more likely than not, a lower bar than the State’s burden of proof beyond a reasonable doubt. The statute also says the issue “shall be tried by the trier of fact,” which is usually the jury. At The Brancato Law Firm, we treat entrapment as a defense to build from the first day, because the evidence that proves it, the messages and the officer’s choices, is fixed the moment the investigation ends.

What are the two kinds of entrapment in Florida?

Florida recognizes two separate entrapment defenses: subjective entrapment, which is the statutory defense, and objective entrapment, which comes from the due process clause of the Florida Constitution. The first asks about the defendant; the second asks only about the police. Our attorneys raise both whenever the facts support them, because they fail and succeed for different reasons.

How does a Florida court decide subjective entrapment?

A Florida court decides subjective entrapment by asking three questions, set out by the Florida Supreme Court in Munoz v. State, 629 So. 2d 90 (Fla. 1993). In Munoz, the Court read section 777.201 as adopting the subjective test and set the order of proof that Florida trial judges still follow today.

1. Inducement. Did a government agent induce the accused to commit the charged crime? The defense must prove this by a preponderance of the evidence.
2. Predisposition. If there was inducement, was the accused already “awaiting any propitious opportunity or was ready and willing, without persuasion, to commit the offense”? Once the defense produces evidence of no predisposition, the burden shifts to the State to rebut it beyond a reasonable doubt.
3. Judge or jury. If the facts are undisputed, inducement is shown, and the State lacks enough evidence of predisposition formed before and independent of the police conduct, the judge must rule for the defense as a matter of law. If the facts are disputed, or reasonable people could draw different conclusions, the jury decides.

The third question is where many sting cases are won or lost. When every message is preserved and the record shows the officer doing the persuading, our attorneys at The Brancato Law Firm ask the judge to decide entrapment before a jury is ever picked.

What counts as police inducement?

Police inducement means persuasion that goes beyond offering a chance to commit a crime: repeated pleading, pressure on a reluctant person, appeals to sympathy or friendship, promises of reward, or taking the lead in introducing the illegal idea. Florida courts draw a firm line between inducement and opportunity. In the words the Second District repeated in 2023, “creating nothing more than an opportunity to commit a crime is not prohibited.”

These are the patterns our attorneys look for when we read a chat log or listen to an informant’s recorded calls. A single message where the person backs away can matter more than fifty messages of small talk. When an informant is involved, we also look at what the informant was promised, which our post on whether the State has to reveal a confidential informant explains in more detail.

How do prosecutors try to prove predisposition?

Prosecutors try to prove predisposition with evidence that the accused was ready to commit the crime before police ever got involved, such as prior similar conduct, earlier messages, or eagerness at the first opportunity. Under Munoz, the State may make “an appropriate and searching inquiry” into the accused’s conduct and may even use prior criminal history that would normally be kept from a jury. But that evidence counts only to the extent it shows predisposition “both prior to and independent of the government acts.”

That limit matters. Statements a person makes after an officer spent days wearing down his resistance are weak proof of what he was inclined to do before the officer appeared. Munoz also said a judge may rule entrapment as a matter of law even when the State presents prior convictions. Our attorneys at The Brancato Law Firm separate the record into what the client said before inducement and what he said after it, and we build the predisposition argument around that timeline.

When does police misconduct violate due process?

Police misconduct violates due process, and bars the prosecution entirely, when law enforcement’s methods are so outrageous that a court will not let the case go forward regardless of the defendant’s predisposition. Munoz held that section 777.201 replaced the older objective test, but it preserved this due process defense for “egregious law enforcement conduct.” Two Florida Supreme Court decisions show what that looks like.

In State v. Glosson, 462 So. 2d 1082 (Fla. 1985), an informant was promised 10 percent of the civil forfeitures from the cases he developed, and he had to testify and cooperate in the prosecutions to get paid. The Court held that a trial court may dismiss charges on due process grounds when an informant stands to gain a contingent fee conditioned on testimony that is critical to the prosecution.

In State v. Williams, 623 So. 2d 462 (Fla. 1993), the Broward County Sheriff’s Office turned seized powder cocaine into crack cocaine for reverse-sting operations, and some of it was lost into the community. The Court held that illegally manufacturing crack for a reverse sting within 1,000 feet of a school violated due process and reversed the conviction. Cases like these are rare, and our attorneys raise objective entrapment only when the record supports it, because judges take the claim seriously only when it is precise.

How does entrapment work in online sting cases?

Online sting cases are where Florida’s entrapment law is most often tested, because the entire conversation between the officer and the accused is usually preserved word for word. Charges in these cases typically include using a computer to solicit a minor and traveling to meet a minor under section 847.0135, Florida Statutes; the traveling charge is a second-degree felony. The statute applies even when the “child” is an adult officer, because it covers a person “believed by the person to be a child.”

The volume of these cases is large. In 2025, Internet Crimes Against Children task forces conducted nearly 347,000 investigations and arrested more than 17,000 people nationw

Entrapment is a common response to these charges, and research shows it rarely wins by itself. A national study published in 2005 in Sexual Abuse: A Journal of Research and Treatment, based on 2000 to 2001 case data, found that entrapment or police conduct was raised in 44 percent of undercover “proactive” cases, compared with 4 percent of cases involving real child victims. The same study found that 4 percent of offenders arrested in undercover cases had prior arrests for sexual offenses against minors, compared with 11 percent in real-victim cases, and the authors described the entrapment defenses they saw as common but not successful (Mitchell, Wolak, and Finkelhor, Crimes Against Children Research Center). That gap in prior records is why predisposition, not the raw fact of the sting, is usually the fight.

How DeMare v. State drew the line on adult-profile stings

In DeMare v. State, 298 So. 3d 1269 (Fla. 2d DCA 2020), a detective created a profile of an 18-year-old woman named “Amber” in the adult section of a dating site. Jason DeMare answered that adult profile. After four days of flirting as an adult, “Amber” said she was 14. DeMare immediately tried to end it and said sex would be illegal. The detective kept pressing: she said she liked older men, said her parents were out of town, accused him of being scared, and coaxed him for details. He had no record of offenses against minors.

The Second District Court of Appeal, which hears appeals from Hillsborough, Pinellas, and Pasco Counties, held that DeMare was entrapped as a matter of law, reversed his conviction for traveling to meet a minor, and ordered him discharged. The lesson is that an adult-profile start, a late age reveal, a clear refusal, and persistent police pressure can add up to entrapment that a judge must recognize without sending the case to a jury.

The same court has also shown the limits. In State v. Panebianco, 370 So. 3d 345 (Fla. 2d DCA 2023), a Sarasota County judge dismissed charges against a man who answered a 19-year-old’s profile but was told early and repeatedly that she was 14. The Second District reversed. It agreed he had shown a lack of predisposition, since he had no record of offenses against minors, but held that his own sexual messages created a question of predisposition for a jury, and that the operation was not outrageous enough to be objective entrapment. Our attorneys read every message with these two cases side by side. For more on the charges themselves, see our guides to solicitation of a child using a computer, what happens after a Tampa sex sting arrest, and what to do if you messaged a minor online.

Can entrapment get charges dismissed before trial?

Yes. Entrapment can end a case before trial through a sworn motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4), which allows dismissal when “there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt.” The State can defeat that motion by showing a real factual dispute, and on the motion the judge reads the evidence in the light most favorable to the State.

In Hillsborough County, in our firm’s experience, prosecutors contest nearly every entrapment motion in a sting case, and the decision to file one can change the plea discussions already underway. That makes timing a strategic call, not a formality. Losing the motion also does not end the defense. Because the statute sends entrapment to the trier of fact, the same evidence can be argued to a jury at trial, and jurors may weigh the officer’s persistence differently than a judge reading a cold transcript. Our Hillsborough County criminal defense team plans for both stages from the start.

What should you do if you think police entrapped you?

If you think police entrapped you, stop all contact, say nothing to investigators, and get a defense attorney before the case is charged or before your first court date. The steps below protect the evidence that an entrapment defense depends on.

1. Do not answer more messages from the account, and do not try to explain yourself to it.
2. Do not delete anything. Deleting messages can look like consciousness of guilt and can lead to a separate tampering charge; the full thread is often your best evidence.
3. Write down, privately and for your lawyer only, how the contact started and when the other person first raised anything illegal.
4. Decline any interview. Politely say you want a lawyer, then stop talking.
5. Call a defense attorney right away. If you believe you are under investigation but have not been charged, our representation before charges are filed can sometimes shape what the prosecutor decides.

Frequently asked questions about the entrapment defense in Florida

Is it entrapment if the officer pretended to be an adult first?

It can be. In DeMare, the Second District found entrapment as a matter of law where the officer posed as an 18-year-old, revealed a younger age days later, and kept pushing after the man refused. The Brancato Law Firm compares the timing of the age reveal and the officer’s pressure in every sting case we take, as our guide to vigilante predator catchers also discusses for civilian stings.

Who has the burden of proof for entrapment in Florida?

The defense must first prove inducement by a preponderance of the evidence, and must offer some evidence of lack of predisposition. The burden then shifts to the State to prove predisposition beyond a reasonable doubt under Munoz and section 777.201. Our attorneys at The Brancato Law Firm gather the background evidence, such as a clean record and the client’s history, that triggers that shift.

Does a prior criminal record defeat an entrapment defense?

Not automatically. Prosecutors may use prior conduct to argue predisposition, but Munoz said a judge may still find entrapment as a matter of law even when the State presents prior convictions, and the evidence must show predisposition formed before and independent of the police conduct. At The Brancato Law Firm, we look at whether a prior record has anything to do with the crime the officer was pushing.

Can entrapment charges be dropped in Florida?

Yes. Prosecutors can drop charges when the evidence of inducement is strong, and a judge can dismiss them on a successful motion. Our Tampa internet crimes defense attorneys present the inducement record to the prosecutor early when that gives the client the best chance at a dismissal or a reduced charge.

Is it entrapment if police only gave me the chance to commit a crime?

No. Florida courts hold that creating an opportunity to commit a crime is not entrapment; there must be persuasion or pressure that overcame a person who was not ready to commit it. The Brancato Law Firm looks for the moment the conversation turned and who turned it, because that is usually where the defense lives.

Can I raise entrapment if I have not been charged yet?

Entrapment is a defense raised in court, but the groundwork starts during the investigation, when the messages can be preserved and the prosecutor has not committed to a charge. Our attorneys at The Brancato Law Firm offer pre-file advocacy for people who believe a chat or a meeting is under investigation.

For how this fits into the rest of a case, see our overview of how a Florida criminal case moves from investigation to appeal.

Talk to a Tampa defense attorney about entrapment

The window to preserve a sting case’s best evidence closes quickly, often within days of the arrest. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159 at any hour, and our attorneys will review how the contact started, who raised the crime, and whether an entrapment motion fits your case. Our office is two blocks from the courthouse, and we defend clients in Hillsborough, Pinellas, and Pasco Counties. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking criminal defense clients in Tampa.

For more about our defense strategies, visit our Internet Crimes page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

A Florida judge deciding whether to postpone a trial asks one practical question: will the defense be unfairly hurt if the case goes forward today? I have argued that question for more than 25 years in Hillsborough County courtrooms, including more than 150 jury trials to verdict, first in public defense and now as founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. Our attorneys ask for more time when the case needs it, oppose delay when the State is not ready, and build the record so a wrongly denied continuance can be fixed on appeal.

What is a continuance in a Florida criminal case?

A continuance is the postponement of a hearing or trial to a later date. Florida Rule of Criminal Procedure 3.190 defines it as “the postponement of a cause for any period of time” and allows the court to grant one on motion of the State, the defense, or on its own motion “for good cause shown.” The rule requires the motion to be made before or when the case is set for trial unless the reason arose later, and it must include counsel’s certificate that the motion is made in good faith.

Continuances are routine. Most felony cases are reset several times while discovery, depositions, and plea negotiations proceed. The fight comes at trial, when one side is ready and the other is not.

What are good reasons for a continuance?

Good cause is any reason that makes going forward unfair or impossible. The 13th Judicial Circuit’s standard motion for continuance form for Hillsborough County lists the grounds judges see most often:

• Defense counsel needs more time to prepare or investigate
• Illness of a witness, a party, or the attorney
• A witness or attorney is unavailable
• The other side disclosed evidence late
• A witness or the alleged victim could not be deposed
• A question about the defendant’s competency to proceed
• New counsel was appointed or retained

In our experience, judges in the 13th Circuit weigh how old the case is, how many times it has been continued, and whether the request is made early or on the morning of trial. When a defendant moves for the continuance, the Hillsborough form requires counsel to state that the client was consulted, has no objection, and understands that speedy trial is waived if the motion is granted. Our attorneys explain that trade-off to every client before we sign it.

Does asking for a continuance waive speedy trial in Florida?

Usually, yes. Under Florida Rule of Criminal Procedure 3.191, the State must try a misdemeanor within 90 days and a felony within 175 days of formal charging, but a defense continuance generally waives those periods. In State v. Naveira, 873 So. 2d 300 (Fla. 2004), the Florida Supreme Court held that a defendant who asked for a continuance during the recapture period could not then be discharged, quoting the rule that a defense request for continuance, absent State misconduct or discovery violations, “waives the 175 day ‘speedy trial’ time.”

The constitutional right to a speedy trial survives a continuance, but it is harder to win. Section 918.015, Florida Statutes gives both the State and the defendant the right to a speedy trial. Our guide to how speedy trial works in Florida explains the 2025 rule change and how the notice of expiration works.

When does a denied continuance get a conviction reversed?

A conviction is reversed when the record shows a palpable abuse of discretion that caused the defendant undue prejudice. When the request involves a missing witness, Florida courts require the defense to show prior due diligence to get the witness there, that the testimony would be substantially favorable, that the witness was available and willing, and that denying the continuance caused material prejudice.

In Surratt v. State, 407 So. 3d 1270 (Fla. 2d DCA 2025), a Pasco County woman charged with aggravated child abuse relied on one witness, a board-certified radiologist who would testify that an undiagnosed bone disease, not abuse, explained the child’s injuries. On the morning of trial, the expert would not fly in from California. The judge refused to let her testify remotely and refused a continuance, the jury convicted, and the court imposed 30 years in prison. The Second District reversed, finding the expert’s testimony “critical to her defense” and the denial unduly prejudicial. Our Tampa child abuse attorney page describes how our firm uses medical experts in these cases.

Late changes by the State can also require a continuance. In Turner v. State, 311 So. 3d 185 (Fla. 2d DCA 2020), a Sarasota County case, the State added a first-degree burglary charge less than a week before trial and listed three new police witnesses. The Second District held that denying a continuance was an abuse of discretion and ordered a new trial on the new charge, because the defense had no fair chance to prepare for different elements and a much higher penalty.

How long do continuances delay a criminal case?

Each continuance adds weeks. A National Center for State Courts study, Brian Ostrom and colleagues’ Timely Justice in Criminal Cases: What the Data Tells Us, examined felony cases from 2016 in 136 courts across 21 states and found that each continuance added about 21 days to a case on average. Continuances and hearings were the main drivers of how long cases took, and faster courts averaged 2.5 continuances per felony disposition compared with 3.2 in slower courts.

Hillsborough County’s docket shows the pressure. The 13th Judicial Circuit received 12,317 felony filings and disposed of 10,862 felony cases in FY 2024-25, a clearance rate of 88.2%, according to the Florida courts’ FY 2024-25 Statistical Reference Guide. Florida’s presumptive time standard is 180 days from arrest to final disposition for a felony and 90 days for a misdemeanor under Rule 2.250 of the Florida Rules of General Practice and Judicial Administration, and many cases exceed it.

Can the alleged victim object to a continuance?

Yes. Marsy’s Law, in Article I, Section 16 of the Florida Constitution, gives crime victims the right to proceedings “free from unreasonable delay, and to a prompt and final conclusion of the case.” Prosecutors often raise it when opposing a defense continuance. Some cases involving children carry an added statutory mandate: under section 918.0155, Florida Statutes, prosecutions for child abuse or sexual offenses involving a child under 16 “shall be heard and disposed of as expeditiously as possible.”

Those rules do not override the defendant’s right to a fair trial. They make the record more important. Our attorneys file a written motion that spells out exactly why the time is needed, what will be done with it, and how the client will be prejudiced without it, so the judge can weigh the victim’s interest against a concrete need.

How do our attorneys handle continuances?

1. Decide deliberately. We weigh whether delay helps the client, such as time for an expert or mitigation, or whether pressing for trial puts the State on the clock.
2. Ask early and in writing. A motion filed weeks ahead, with a specific reason, is far more likely to be granted than an oral request on the trial date.
3. Support it with facts. Affidavits, discovery dates, and expert schedules show good cause.
4. Offer alternatives. Remote testimony, a short delay, or a deposition to preserve testimony can save the defense when a full continuance is denied.
5. Preserve the record. If the motion is denied, we proffer what the missing evidence would have shown, which is what made reversal possible in cases like Surratt.

Our Hillsborough County criminal defense attorney page explains the local court process, and our guide to expert witnesses in criminal defense explains why expert scheduling is a common reason for continuances.

Frequently asked questions about continuances in Florida criminal cases

How many continuances can you get in a Florida criminal case?

Florida’s rules set no fixed limit, but each request must show good cause, and judges grow less willing as a case ages. The Brancato Law Firm plans each request so the client does not use up the court’s patience before the time is truly needed.

Can I ask for a continuance to hire a new lawyer?

You can, and courts consider whether the request is made in good faith or to delay. A short continuance for newly retained counsel is often granted when the request is prompt. When our attorneys at The Brancato Law Firm take over a case, we tell the court right away what preparation is needed and how long it will take.

What happens if the State is not ready for trial?

The State must show good cause, and a State continuance does not waive the defendant’s speedy trial rights. Our attorneys at The Brancato Law Firm object when the State is unprepared and use the speedy trial clock to press for dismissal or a better resolution, as explained in our speedy trial guide.

Can a judge deny a continuance if my expert witness is unavailable?

A judge can, but the denial may be reversed if the expert was critical, the defense was diligent, and the absence caused real prejudice, as in Surratt v. State, 407 So. 3d 1270 (Fla. 2d DCA 2025). The Brancato Law Firm schedules experts early and asks for remote testimony as a backup to protect that record.

Do I have to be in court for a continuance hearing?

Often your attorney can handle a continuance without you, but some judges require the defendant’s presence, especially when speedy trial is being waived. The Brancato Law Firm tells clients ahead of time whether they need to appear so they never miss a required court date.

Does a continuance mean my case is going badly?

No. Most continuances reflect ordinary preparation, such as depositions, lab results, or plea discussions. Our attorneys at The Brancato Law Firm explain the reason for each reset so clients know exactly where their case stands.

For how this fits into the rest of a case, see our step-by-step guide to what happens in a Florida criminal case.

Get advice before you agree to more time, or less

Before you agree to a continuance, or push for a fast trial, call The Brancato Law Firm, P.A. at (813) 727-7159. We are available 24/7. Tampa Criminal Defense Attorney Rocky Brancato founded the firm, and our attorneys will review your discovery, your speedy trial dates, and your witnesses, then tell you whether time helps or hurts your case. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa.

For more about our defense strategies, visit our Hillsborough County criminal defense page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

A Florida judge deciding a motion for judgment of acquittal looks at one thing: whether the State’s evidence, taken at its strongest, proves each element of the crime, or only suggests it. I have made and answered that argument for more than 25 years in Hillsborough County courtrooms, in more than 150 jury trials to verdict. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and our attorneys build circumstantial-evidence defenses around the gaps between the facts the State can prove and the conclusions it wants a jury to draw.

What is circumstantial evidence in Florida?

Circumstantial evidence is proof of facts from which a jury can infer another fact, such as guilt. Direct evidence proves the fact itself, without an inference. A witness who says “I saw him take the wallet” gives direct evidence. A fingerprint on the wallet is circumstantial, because the jury must infer when and how it got there. Florida’s evidence code admits both kinds if they are relevant under section 90.401, Florida Statutes.

Is circumstantial evidence weaker than direct evidence?

No. Florida law treats the two as equally capable of proving guilt, and the jury decides what weight each deserves. In Bush, the Florida Supreme Court quoted the U.S. Supreme Court’s view that circumstantial evidence is “intrinsically no different from testimonial evidence.” Direct evidence can be wrong too. Of the 147 exonerations recorded nationwide in 2024, 38, or 26%, involved convictions based at least in part on mistaken witness identification, and 42, or 29%, involved false or misleading forensic evidence, according to the National Registry of Exonerations 2024 Annual Report.

Both halves of that statistic matter to a defense. A circumstantial case often rests on forensic conclusions, and the 2009 National Research Council report Strengthening Forensic Science in the United States found that, apart from nuclear DNA analysis, no forensic method had been rigorously shown to consistently connect evidence to a specific person or source with a high degree of certainty. Our attorneys test the science behind each inference rather than accepting the label on a lab report.

How did Bush v. State change circumstantial evidence cases?

Bush ended Florida’s special standard of review for cases built entirely on circumstantial evidence. Bush was convicted in St. Johns County of murdering his estranged wife on a wholly circumstantial record and sentenced to death. On appeal, he asked the Court to apply the old rule that such a conviction cannot stand unless the evidence is inconsistent with every reasonable hypothesis of innocence. The Court refused, held that the special standard was confusing and out of step with Florida’s jury instructions, and affirmed.

One correction to a common belief: Florida juries were not told to apply the “reasonable hypothesis of innocence” rule even before Bush. The Florida Supreme Court explained in Bush that it eliminated the special circumstantial-evidence jury instruction in 1981. Florida’s standard jury instructions do not include it, so the defense argues innocent explanations to the jury under the ordinary reasonable doubt standard instead.

Can the State stack inferences after Bush?

No. The Second District Court of Appeal, which hears appeals from Hillsborough, Pinellas, and Pasco Counties, held in 2026 that Bush did not permit the State to prove guilt by pyramiding inferences. In Young v. State, No. 2D2025-0042 (Fla. 2d DCA July 10, 2026), a Hillsborough County felony murder appeal, the State argued that Bush made inference stacking a permissible way to convict. The court rejected that argument, explaining that each inference must rest on an evidentiary fact and a jury may not draw an inference from an inference to fill a hole in the proof. The court found no improper stacking in Young’s case and affirmed his conviction, but the rule it reaffirmed applies in every case in our district.

Two months later, the same court applied the rule to reverse. In Smith v. State, No. 2D2025-1715 (Fla. 2d DCA Sept. 18, 2026), a Sarasota County probationer was accused of violating curfew because officers knocked at night and got no answer. The officers did not say how long they knocked, how loudly, or where his room was. The Second District held there was no basis to infer he would have heard the knock, and no basis to infer from his silence that he was gone, and it ordered his probation reinstated. Chief Judge Lucas dissented and questioned whether the stacking rule survives Bush, so the issue may reach the Florida Supreme Court. For now, it is binding law in the 13th Judicial Circuit and a key tool in our Hillsborough County criminal defense work. Our guide to fighting a probation violation in Florida covers how this plays out at violation hearings.

How do our attorneys fight a circumstantial evidence case?

Our attorneys attack the chain of inferences link by link, at every stage where the law allows it. These are the five moves we use most:

1. Map the inference chain. We write out each fact the State can prove and each conclusion it needs, and mark every place where one inference rests on another.
2. Exclude unfair evidence before trial. Under section 90.403, Florida Statutes, relevant evidence can be excluded if unfair prejudice, confusion, or misleading the jury substantially outweighs its value. We file motions in limine on flight, motive, and other evidence that invites guessing.
3. Challenge the forensic science. Fingerprints, DNA mixtures, cell phone location, and digital records are circumstantial. We retain experts and cross-examine the State’s analysts on method and limits. See our guides to challenging fingerprint evidence and cell phone location evidence.
4. Move for judgment of acquittal. At the close of the State’s case we argue that the evidence, even viewed favorably to the State, requires stacked inferences or leaves an element unproven.
5. Give the jury the innocent explanation. We present the alternative account through witnesses, records, and cross-examination, and argue that it creates reasonable doubt.

Doctrine survives procedure here. If a judge denies the motion for judgment of acquittal, the stacking argument is not lost: it is preserved for appeal and still frames the reasonable doubt argument to the jury. Possession cases are a common example, because the State often must infer knowledge from proximity; our article on constructive possession in Florida explains that issue.

Has our firm won cases where the State relied on one key piece of evidence?

Yes. In one trial, our client was charged with robbery with a firearm based on an identification. Rocky Brancato presented a mistaken identity defense, pointing out that the client had a very noticeable rosary tattoo covering his arm that the victim never mentioned in her description to police. The jury found the client not guilty. In a cold-case sexual battery prosecution, a DNA expert’s full review of the evidence led to a complete dismissal based on mistaken identity. Past results do not guarantee future outcomes.

Frequently asked questions about circumstantial evidence in Florida

Can you be convicted of murder on circumstantial evidence alone in Florida?

Yes. Bush v. State itself affirmed a first-degree murder conviction and death sentence on a wholly circumstantial record. The Brancato Law Firm defends these cases by testing each forensic link and holding the State to proof that does not depend on stacked inferences; see our Tampa homicide defense page.

Does Florida still use the reasonable hypothesis of innocence standard?

No. The Florida Supreme Court discontinued that standard for judgments of acquittal and appeals in Bush in 2020. Our attorneys at The Brancato Law Firm now frame the same facts under reasonable doubt and the prohibition on pyramiding inferences, which the Second District reaffirmed in 2026.

What is inference stacking in a Florida criminal case?

Inference stacking means drawing one inference from another inference rather than from a proven fact, and Florida courts do not allow a conviction built that way. The Brancato Law Firm raises the issue in motions for judgment of acquittal, relying on Young v. State, No. 2D2025-0042 (Fla. 2d DCA July 10, 2026).

Is fleeing from police evidence of guilt in Florida?

Flight can be admitted as circumstantial evidence of consciousness of guilt, but people run for many reasons, and the jury decides its weight. Our attorneys at The Brancato Law Firm move to limit flight evidence when its link to the charged crime is weak.

Can circumstantial evidence be used at a probation violation hearing?

Yes, but the State still must present competent evidence of a willful and substantial violation, and stacked inferences fail there too. The Second District reversed a curfew violation on that basis in Smith v. State, No. 2D2025-1715 (Fla. 2d DCA Sept. 18, 2026). The Brancato Law Firm uses the same analysis at violation hearings in Hillsborough County.

How do I know if the evidence against me is only circumstantial?

Ask whether any witness or recording shows you committing the act itself; if not, the case is likely circumstantial. Our attorneys at The Brancato Law Firm review the discovery to separate the facts the State can prove from the conclusions it is asking the jury to draw, and our Tampa criminal forensic science attorney page explains how we use experts in that review.

For how this fits into the rest of a case, see our step-by-step guide to what happens in a Florida criminal case.

Find the weak link before the State builds the chain

A circumstantial case is only as strong as its weakest inference, and finding it early gives our attorneys time to retain experts and file the right motions. The Brancato Law Firm, P.A. was founded by Tampa Criminal Defense Attorney Rocky Brancato. Call (813) 727-7159 at any hour to have our attorneys review the evidence in your case. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa.

For more about our defense strategies, visit our Forensic Science Defense page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If someone you love has been sitting in a Hillsborough County jail for three weeks while the prosecutor says the case is “still under review,” the 21-day rule may be the fastest lever the defense has. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I have spent more than 25 years in Hillsborough County courtrooms, including as former COO of the Hillsborough County Public Defender’s Office, overseeing a staff of over 100 attorneys. Our attorneys decide case by case whether to demand this hearing, because it can win a client’s release and it can also hand the State testimony it later uses at trial.

What is the 21-day rule in Florida?

The 21-day rule is the right, under Rule 3.133(b), to an adversarial preliminary hearing on any pending felony when the State has not formally charged the defendant within 21 days of arrest or service of a capias. Filing an information later does not erase the right once it attaches. The rule covers felonies only.

The hearing matters because many people wait in jail during the charging window. Nationally, 68% of the 658,700 people held in local jails at midyear 2024 had not been convicted, and the average jail stay for people admitted from July 2023 through June 2024 was 31 days, according to the Bureau of Justice Statistics report Jail Inmates in 2024. A three-week wait without charges is common. Hillsborough County also does not offer pretrial services supervision as a release option, so a detained client’s options for release are narrower here than in some nearby counties.

What are the deadlines after an arrest in Florida?

Florida sets four checkpoints between arrest and formal charges, and each one gives the defense a chance to seek release.

Do not assume release happens on its own. Courts act on these rules when the defense raises them, and our attorneys calendar the 21-day, 30-day, and 33-day marks from the first day of every in-custody case.

How is an adversarial preliminary hearing different from first appearance?

An adversarial preliminary hearing is a live evidentiary hearing, while the 48-hour probable cause check is a paper review. At the 48-hour stage, a judge can find probable cause from a sworn complaint or affidavit without the defendant present. At the adversarial hearing, witnesses testify in the defendant’s presence, the defense can cross-examine them, the court can issue subpoenas for witnesses on either side, and either party can ask that witnesses be kept out of the courtroom while others testify.

The difference is real. In Davis v. Junior, 300 So. 3d 307 (Fla. 3d DCA 2020), a Miami-Dade man was arrested for driving while his license was suspended as a habitual traffic offender. At the adversarial hearing, the State’s only witness was the arresting officer, who testified that a records check showed the habitual-offender status. The State offered no driving record. The Third District held that the State cannot rely solely on hearsay at a Rule 3.133(b) hearing, granted habeas corpus, and ordered the man released on his own recognizance. The lesson for Tampa cases is direct: if the State cannot bring a witness with personal knowledge of a key element, the hearing can end in release.

What happens if the judge finds no probable cause?

If the judge finds no probable cause, the defendant must be released from custody, on recognizance or by summons if formal charges have since been filed. Release does not end the case. The State can still file charges, so the hearing wins freedom while the case continues, not a dismissal.

Release itself changes outcomes. A study of randomly assigned bail judges by Will Dobbie, Jacob Goldin, and Crystal Yang, published in the American Economic Review in 2018, found that pretrial detention significantly increases the chance of conviction, mainly through more guilty pleas. A client who is home can work, help gather evidence, and decide on a plea offer without the pressure of a jail cell.

Can testimony from the hearing be used at trial?

Yes, and it can be used against the defendant. Under section 90.804(2)(a), Florida Statutes, sworn testimony from an earlier hearing is admissible at trial if the witness later becomes unavailable and the opposing party had the opportunity and a similar motive to cross-examine. In Thompson v. State, 995 So. 2d 532 (Fla. 2d DCA 2008), a Second District case, the victim testified at the defendant’s adversarial preliminary hearing and was murdered before trial. The court held the State could play that testimony to the jury because identification was at issue at both proceedings and defense counsel had cross-examined the victim.

Thompson shows why the hearing is a trial-level event. Whatever the State’s witness says on that day may be the only version a jury ever hears. Our attorneys prepare cross-examination for an adversarial hearing as carefully as for trial, and we ask that the hearing be recorded so the defense has a transcript to lock in the witness’s account.

When should the defense waive the hearing?

The defense should waive or delay the hearing when the risks of creating sworn testimony and public detail outweigh the chance of release. Our attorneys weigh these factors with every client:

Confessions deserve special care. Under section 119.071(2)(e), Florida Statutes, information revealing the substance of an arrested person’s confession is exempt from public records until the case is finally resolved. Testimony in open court has no such protection. If the State would describe a confession at the hearing, that detail can reach the press and the jury pool.

How do our attorneys use the 21-day rule?

Our attorneys treat the 21-day mark as a decision point, not an automatic motion. We follow these steps:

1. Calendar the dates on day one. We count 21, 30, 33, and 40 days from the arrest or capias service.
2. Talk to the prosecutor first. Before the 21st day, we put mitigation and legal problems with the case in front of the assigned prosecutor, which sometimes ends the case with no charges filed.
3. Decide whether to demand the hearing. We weigh release value against the risk of creating trial testimony.
4. Prepare cross-examination and subpoenas. We identify which State witnesses have personal knowledge and which elements rest only on hearsay.
5. Enforce Rule 3.134. If no charges are filed by day 30, we move for release under Rule 3.134 and, if the court will not act, seek habeas corpus in the Second District Court of Appeal.

If charges have not been filed yet, early representation before charges are filed can matter more than any hearing. For what happens once charges are filed, read our guides to bond hearings in Tampa, the Hillsborough County criminal court process, motions to dismiss in Florida, and speedy trial rights. Our Hillsborough County criminal defense attorney page explains how our firm handles cases in the 13th Judicial Circuit.

Frequently asked questions about adversarial preliminary hearings in Florida

Do misdemeanor cases get an adversarial preliminary hearing in Florida?

No. Rule 3.133(b) applies to felony charges pending after 21 days without an information or indictment. For a misdemeanor, The Brancato Law Firm focuses instead on the 48-hour probable cause determination, release conditions, and Rule 3.134’s charging deadline.

Does the 21-day rule apply if I am out on bond?

Yes. The right to an adversarial preliminary hearing on a pending felony does not depend on custody, though release is the most common reason to use it. Our attorneys at The Brancato Law Firm often weigh whether a client on bond gains more from a hearing or from pre-file advocacy with the prosecutor.

Can the State use only a police report at an adversarial preliminary hearing?

No. A Florida appellate court held in Davis v. Junior, 300 So. 3d 307 (Fla. 3d DCA 2020) that the State cannot rely solely on hearsay at a Rule 3.133(b) hearing. The Brancato Law Firm objects to hearsay at these hearings and holds the State to witnesses with personal knowledge.

If the judge finds no probable cause, are the charges dropped?

No. The defendant is released, but the State can still file charges later. Our attorneys at The Brancato Law Firm use the hearing’s results in negotiations, because a State case that failed probable cause is often weak at trial too.

What happens if the State files charges before the hearing?

Under Rule 3.133(b), filing an information or indictment after the 21st day does not eliminate the right to the hearing. The Brancato Law Firm reviews the filing date against the arrest date to confirm the right attached before moving forward on our Hillsborough County criminal defense cases.

Can someone be held more than 40 days without charges in Florida?

No. Rule 3.134 says no defendant may remain in custody beyond 40 days unless formally charged, and release on recognizance is generally ordered for day 33 if the State shows no good cause. When a jail ignores those dates, our attorneys at The Brancato Law Firm seek habeas corpus relief in the Second District Court of Appeal.

For how this fits into the rest of a case, see our stage-by-stage guide to the Florida criminal case process.

Count the days now

Every day in custody without charges counts toward the 21-day and 33-day marks, and the defense has to raise them. The Brancato Law Firm, P.A. was founded by Tampa Criminal Defense Attorney Rocky Brancato, and our attorneys can review the arrest date, the State’s file, and whether a hearing or a release motion fits the case. Call (813) 727-7159; you can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking and Haitian Creole-speaking clients.

For more about our defense strategies, visit our Hillsborough County Criminal Defense page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys, I have watched disqualification motions win and fail for the same reason: the facts in the motion. Judges do not step aside because a defendant feels uneasy. They step aside when a sworn motion lays out concrete facts that would make a reasonable person doubt the court’s fairness. Our attorneys draft these motions to meet that test and file them inside the deadline.

When can you disqualify a judge in Florida?

You can disqualify a Florida judge when specific facts would make a reasonably prudent person fear not receiving a fair and impartial trial, or when the judge has a listed conflict with the case. Rule 2.330 and section 38.10, Florida Statutes, govern the process. Both the defense and the State can file the motion.

Actual bias is not required. The question is the appearance of bias seen through the eyes of a reasonable person in the defendant’s position. In Hillsborough County, where the 13th Judicial Circuit says its two courthouses are staffed by 70 judges as of 2026, the motion is a tool for a real problem with one judge, not a way to shop for another.

What test do Florida courts use?

Florida courts ask whether the facts alleged, assumed to be true, would place a reasonably prudent person in fear of not receiving a fair and impartial trial. The Florida Supreme Court set out that test in Livingston v. State, 441 So. 2d 1083 (Fla. 1983). In Livingston, a capital defendant in the Second Judicial Circuit swore to years of open hostility between the trial judge and his defense lawyer, including a contempt finding against the lawyer. The Court held the motion legally sufficient, reversed the murder conviction and death sentence, and ordered a new trial before a different judge.

The lesson from Livingston is that the focus is on the defendant’s reasonable fear and its basis. How the judge feels about his or her own fairness does not decide the motion.

What does not count as grounds?

Adverse rulings and loose social connections usually do not support disqualification. Florida courts have said repeatedly that a judge who rules against you has not shown bias by ruling against you. A motion built on complaints about past rulings will be denied as legally insufficient.

Social media is a common question. In Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass’n, 271 So. 3d 889 (Fla. 2018), a law firm sought to disqualify a trial judge who was Facebook friends with a lawyer on the other side. The Florida Supreme Court held that a Facebook friendship, standing alone, is not a legally sufficient basis to disqualify a judge, because the label says nothing about how close the relationship is. The Court left room for disqualification when the friendship is close or comes with an additional factor.

What do the cases say about conduct that does require a new judge?

Conduct that shows the judge has sided with one party, in or out of the courtroom, can require disqualification even if the judge believes she can be fair. The clearest recent example is Tundidor v. State, 361 So. 3d 775 (Fla. 2023). In that Broward County capital case, the defense alleged that the judge, still in her robe, left the bench after a different high-profile murder sentencing and hugged members of the prosecution team, including the prosecutor assigned to the defendant’s own case. Two days later, during the defendant’s hearing, the judge and that prosecutor had a personal exchange that the defense believed was commiseration over the other case.

The Florida Supreme Court held that the combination of the courtroom hug and the later exchange would give a reasonably prudent person a well-founded fear of an unfair proceeding. It granted a writ of prohibition and ordered the case reassigned. Two facts, each arguable alone, were enough together. That is why our attorneys document every relevant event, with dates, before drafting the motion.

How do you file a motion to disqualify a judge in Florida?

You file a written motion that meets every requirement of Rule 2.330, because a motion that misses one can be denied without reaching the merits. Our attorneys follow these five steps:

1. Pin down the facts and the date you learned them. The motion must state the specific facts and the date the defendant or counsel discovered them.
2. Have the defendant swear to it. The motion must be sworn to or affirmed by the party, either by signing it under oath or by attaching an affidavit.
3. Add counsel’s certificate of good faith. The lawyer must separately certify that the motion is made in good faith.
4. List any prior disqualifications. The motion must disclose earlier granted motions in the case and their dates.
5. File within 20 days and serve the judge. File with the clerk within a reasonable time, no later than 20 days after discovering the grounds, and promptly serve a copy on the judge. Grounds that arise during a hearing or trial can be raised on the record and must then be put in writing and filed promptly.

What happens after the judge rules?

If the motion is legally sufficient, the judge must enter an order of disqualification and take no further action in the case. If it is not, the judge must deny it. The judge may not argue with the facts in the motion. A judge who disputes the truth of the allegations, rather than ruling on their sufficiency, can create a new ground for disqualification.

After a grant, the case goes to a new judge. In our experience in Hillsborough County, reassignment comes through the clerk’s rotation, so neither side picks the successor. Rulings the first judge made before disqualification stand unless a party moves to reconsider them within 30 days of the order. Timing matters for a second reason: once a judge is disqualified for prejudice, Rule 2.330(i) generally bars the same party from disqualifying the successor on a later motion unless the successor rules that he or she cannot be fair. Your attorney should be sure the first motion is the right one.

What if the judge denies the motion?

If the judge denies a legally sufficient motion, the remedy is a petition for writ of prohibition in the district court of appeal, filed before the case goes forward. For cases in Hillsborough, Pinellas, and Pasco Counties, that court is the Second District Court of Appeal. In death penalty cases, review can go to the Florida Supreme Court, as it did in Tundidor. The appellate court reviews legal sufficiency de novo, without deferring to the trial judge.

Waiting for a direct appeal is risky. In Davis v. State, 347 So. 3d 315 (Fla. 2022), a Polk County murder defendant moved to disqualify a judge who had served in the homicide unit prosecuting his case while it was pending. The Florida Supreme Court agreed the motion should have been granted, but held that on direct appeal an erroneous denial is reviewed for harmless error under section 924.33, Florida Statutes. Davis won a new trial only because the judge had changed jury-selection rulings that could have affected the verdict. A defendant who waits may face a harder test than one who seeks prohibition right away.

Will filing a motion to disqualify hurt your case?

A well-founded motion should not hurt your case, because judges are trained to treat it as a legal question and the rule limits what they can do in response. A weak motion carries more risk: it can strain the courtroom relationship and waste the one motion that the successor rule effectively allows. Douglas J. Glaid’s article in The Florida Bar Journal (October 2000) made the same point decades ago: complaints about rulings have consistently failed, while specific facts about personal bias succeed. Our firm files when the facts meet the test and tells clients plainly when they do not.

For how a felony case moves from arraignment to trial in Tampa, see our guide to the criminal court process in Hillsborough County. If a judge’s conduct arises at a bond hearing, our article on how a bond hearing works in Tampa explains that stage, and our post on contempt of court in Florida covers what happens when a judge accuses someone of contempt.

Frequently asked questions about disqualifying a judge in Florida

How long do I have to file a motion to disqualify a judge in Florida?

You must file within a reasonable time, and no later than 20 days after you or your lawyer learn the facts supporting the motion, under Rule 2.330(g). Our attorneys at The Brancato Law Firm record the discovery date in the motion itself so the State cannot argue the motion is late.

Can a judge be disqualified for being a former prosecutor?

Not for that reason alone, but a judge who worked on your specific case as a prosecutor, or served in the unit handling it while it was pending, should be disqualified. The Brancato Law Firm checks a new judge’s prior assignments against the case history, which is the issue the Florida Supreme Court addressed in Davis v. State, 347 So. 3d 315 (Fla. 2022).

What happens if the judge does not rule on my motion within 30 days?

The motion is deemed granted, and you may ask the clerk for an order reassigning the case. When a ruling is overdue, our attorneys at The Brancato Law Firm move promptly for that order so the original judge takes no further action.

Can I disqualify a judge because the judge keeps ruling against me?

No. Adverse rulings alone are not a legally sufficient ground, and a motion built on them will be denied. The Brancato Law Firm looks instead for facts outside the rulings themselves, such as statements, relationships, or prior involvement, before recommending a motion to a client in our Hillsborough County criminal defense practice.

Can the prosecutor move to disqualify the judge in a criminal case?

Yes. Rule 2.330(b) lets any party, including the State, seek disqualification under the same procedure. When the State files one, our attorneys at The Brancato Law Firm hold it to the same sworn-facts and timing requirements a defendant must meet.

Does a judge being Facebook friends with the prosecutor require disqualification?

No, not by itself. The Florida Supreme Court held in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass’n, 271 So. 3d 889 (Fla. 2018) that a Facebook friendship alone is not legally sufficient, though a close relationship or another factor can change the answer. The Brancato Law Firm investigates the actual relationship before deciding whether the facts support a motion.

For how this fits into the rest of a case, see our guide to each stage of a Florida criminal case.

Talk to a lawyer before the 20-day window closes

The clock on a disqualification motion starts the day you learn the facts, and a late motion can be denied no matter how strong it is. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. Call us at any hour; our attorneys will review what happened, the dates, and the court file, and tell you whether a motion is the right move. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking criminal defense clients in Tampa.

For more about our defense strategies, visit our Hillsborough County Criminal Defense page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

When a new criminal statute takes effect, prosecutors start filing charges that did not exist the day before, and the first cases show how hard the State intends to use it. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys, I have spent more than 25 years in Hillsborough County courtrooms watching new laws go from bill to charging document. This guide summarizes each October 1, 2026 law in plain English and links to our full post on each one, where our attorneys explain the legislative history, the statute text, and how we defend the charge.

Which Florida Criminal Laws Changed on October 1, 2026?

Eight bills passed in the 2026 legislative session changed Florida criminal law on October 1, 2026. The table below lists each one, the statute it created or changed, and the penalty, with a link to our full guide on each law.

Is Violating a No-Contact Order Now a Crime in Florida?

Yes. Under the Victim Safety in Pretrial Release Act (HB 397), section 903.0472, Florida Statutes, willfully violating a no-contact order set as a bond condition after an arrest for a listed violent crime, such as battery, robbery, stalking, kidnapping, or sexual battery, is a separate crime. Before October 1, 2026, a violation in a non-domestic case usually meant only a bond revocation. Now a first violation is a first-degree misdemeanor, a second is a third-degree felony, and anyone arrested for a violation is held in jail until first appearance.

Jail phone calls are where most of these cases start. In Hillsborough County, prosecutors pull recorded jail calls and charge one count for every call to the protected person, and the Fourth District upheld that approach in Caldwell v. State, No. 4D21-117 (Fla. 4th DCA May 18, 2022), where a defendant who called his victim from jail was convicted on 41 counts. Our full guide, is violating a no-contact order a crime in Florida, explains which charges trigger the law and how The Brancato Law Firm defends these cases.

Is Indecent Exposure in Front of a Child a Felony Now?

Yes. HB 1525 created section 800.035, Florida Statutes, which makes it a third-degree felony for an adult to expose himself or herself while observing a child, even if the child never sees or senses the act. The older lewd or lascivious exhibition statute required proof that the child saw or sensed it. The same bill repealed section 800.02, the old unnatural and lascivious act misdemeanor.

The new crime carries a lower maximum than lewd exhibition, up to 5 years instead of 15, and does not require sex offender registration, but the State no longer has to prove the child was aware of the act. Our post on indecent exposure while observing a child compares the two statutes side by side and explains what our attorneys look for in these cases.

Is It a Felony to Sell Nitrous Oxide in Florida?

Yes, for licensed tobacco and nicotine retailers. Meg’s Law (SB 432), section 569.216, Florida Statutes, makes it a third-degree felony for a licensed tobacco or nicotine dealer, or the dealer’s employee or agent, to possess, sell, deliver, or give away nitrous oxide on or from the licensed premises. That covers smoke shops, vape shops, and convenience stores, but not licensed grocery stores or supermarkets, and it does not ban whipped cream or other foods that use nitrous oxide as a propellant.

The same bill created a new crime of trafficking in xylazine under section 893.135, with mandatory minimum prison terms of 3, 7, or 25 years depending on weight, counting any mixture. Xylazine caused 171 deaths in Florida in just the first six months of 2024, according to the Florida Medical Examiners Commission’s 2024 Interim Drug Report published by FDLE. Store owners and clerks should read our guide on selling nitrous oxide in Florida, and anyone contacted by investigators should ask about our representation before charges are filed.

Can Social Media Make Someone a Gang Member in Florida?

Yes, it can now count. HB 429 expanded the definition of a criminal gang member in section 874.03(3), Florida Statutes to include admitting membership online, using gang-related language on social media in furtherance of gang activity, and being identified or claimed by a gang. It also lowered the number of times a person must be seen with known members from four to two. A person meets the definition by satisfying any two of 13 criteria.

Gang membership is not a crime by itself, but a gang finding can raise penalties and lengthen sentences. Our guide to when someone counts as a gang member in Florida walks through each criterion and how The Brancato Law Firm challenges the evidence behind a gang label.

What Changed for Career Offender Registration?

Career offenders now have to register in person, more often, and on shorter deadlines. SB 1332 amended section 775.261, Florida Statutes, the Career Offender Registration Act, which applies for life to anyone designated a habitual violent felony offender, violent career criminal, three-time violent felony offender, or prison releasee reoffender. Since October 1, 2026, a career offender must register in person at the sheriff’s office within 48 hours, report a new residence after just 3 days, reregister in person every birth month, and carry a driver license or ID marked “775.261, F.S.”

Most failures to register or report are third-degree felonies, and each failure is a separate offense. Our guide to career offender registration in Florida lists every deadline in a before-and-after table and explains how our attorneys defend failure-to-register charges.

Is Animal Cruelty Around a Child a Felony?

Yes. HB 559 made it a separate third-degree felony under section 828.12(4), Florida Statutes for an adult to commit aggravated animal cruelty in the presence of a child under 18, or to cause or entice a child to commit it. The same rule now applies to animal fighting or baiting and to sexual activity involving animals. Starting January 1, 2027, anyone who pleads to or is convicted of animal cruelty, even with adjudication withheld, will appear on a public FDLE website for 3, 5, or 10 years.

Lawmakers tied the bill to research on animal abuse and family violence. In a 1998 study, psychologist Frank Ascione surveyed women at a shelter for battered partners and found that 71% of those who had pets reported that their partner had threatened, hurt, or killed a pet. Our post on animal cruelty around a child covers the new offenses, the database, and how The Brancato Law Firm approaches these charges.

Is Lying on a Rental Application a Crime in Florida?

It can be. HB 1293 created section 817.537, Florida Statutes, which makes it a third-degree felony to take possession of a rental home by knowingly making a materially false written statement about your identity, presenting forged documents such as a fake ID or paystub, or impersonating the person named on the application. The crime carries up to 5 years in prison and a $5,000 fine.

Florida’s identity theft numbers drove the bill. Floridians filed 115,840 identity theft reports in 2024, or 528 per 100,000 residents, the highest rate of any state, according to the Federal Trade Commission’s Consumer Sentinel Network Data Book 2024. Our guide to lying on a rental application in Florida explains the intent element and how our attorneys defend these cases.

Do You Still Have to Report a Car Accident in Florida?

Yes, for injury crashes and crashes with at least $2,000 in apparent damage. SB 488 raised the threshold in section 316.065, Florida Statutes from $500, a figure unchanged since 1989, to $2,000. Failing to call the police is a noncriminal traffic infraction, but the higher threshold does not change the duty to stop, exchange information, and render aid, and leaving the scene is still a crime.

Leaving the scene is a real problem in Florida. The state recorded 395,175 crashes in 2023, and 105,092 of them were hit-and-run crashes, which caused 276 deaths, according to the Florida Department of Highway Safety and Motor Vehicles’ Traffic Crash Facts 2023. SB 488 also lets the state send license suspension notices by email if the driver authorized it. Our guide on whether you have to report a car accident in Florida covers every crash scenario and how The Brancato Law Firm defends leaving-the-scene charges.

How Did the Legislature Vote on the New Criminal Laws?

Five of the eight bills passed with one or no dissenting votes in either chamber. The gang bill, HB 429, drew the most opposition, passing the Senate 29 to 9 largely along party lines. Vote tallies come from the official bill histories.

Do the New Laws Apply to Conduct Before October 1, 2026?

No. A new crime or a harsher penalty applies only to conduct on or after October 1, 2026, because the Ex Post Facto Clause of the U.S. Constitution bars punishing an act under a law passed after it happened. A case based on conduct from September 2026 or earlier is charged under the law as it stood then, even if the arrest happens later.

That timing can help the defense. For example, the repeal of section 800.02 does not erase it for older conduct, and for cases involving conduct before October 1, 2026, our attorneys request the section 800.02 lesser-included offense instruction, a misdemeanor that is not a sex offense, where the evidence supports it. The date of the alleged conduct is one of the first things The Brancato Law Firm checks in any case charged under one of these statutes.

What Should You Do If You Are Charged Under One of the New Laws?

Call a criminal defense attorney before first appearance, and do not talk about the case with police, the alleged victim, or anyone on a jail phone. In Hillsborough County, first appearance judges routinely give no-contact orders in writing, yet our firm still sees paperwork with no signature or a refusal noted, and that detail can matter when the State later claims a violation was willful. Jail calls are recorded, and prosecutors here use those recordings.

If you have not been arrested but think you are under investigation, for example as a store owner after a nitrous oxide inquiry or as a tenant accused of a false application, pre-file advocacy can sometimes keep a case from being filed. For more about how our attorneys handle cases in the 13th Judicial Circuit, visit our Hillsborough County criminal defense attorney page.

For how this fits into the rest of a case, see our step-by-step guide to what happens in a Florida criminal case.

Frequently Asked Questions

Which of the October 2026 Florida laws created new felonies?

Six did: a second no-contact order violation, indecent exposure while observing a child, selling nitrous oxide from a licensed tobacco or nicotine retailer, aggravated animal cruelty in front of a child, and rental application fraud are all third-degree felonies, and xylazine trafficking is a new felony with mandatory prison. The Brancato Law Firm reviews the charging document in each new-law case to confirm the State charged the right statute and the right degree.

Can one social media post make me a gang member in Florida?

It can count toward the definition, which requires any two of 13 criteria in section 874.03(3), and the statute says a single act can satisfy more than one criterion. Our attorneys at The Brancato Law Firm challenge who wrote a post, what it actually meant, and whether it was made in furtherance of gang activity.

Is the $500 crash reporting rule still the law in Florida?

No. Since October 1, 2026, the threshold for calling police after a crash without injuries is $2,000 in apparent property damage, though you must still stop and exchange information after any crash. When a client faces a leaving-the-scene charge, The Brancato Law Firm looks first at whether the other vehicle was occupied or the property attended, which decides whether the duty applied.

If a victim contacts me first, can I still be arrested for violating a no-contact order?

Yes. The order binds the defendant, not the protected person, so returning a call or text can be charged even if the other person reached out first. The Brancato Law Firm can ask the court to modify or lift a no-contact order, which is the safe way to restore contact; our full guide on no-contact order violations explains how.

Does a withheld adjudication keep me off Florida’s new animal cruelty database?

No. Under HB 559, a plea or a finding of guilt for animal cruelty, even with adjudication withheld, puts a name on the public FDLE website starting January 1, 2027. That is why The Brancato Law Firm weighs the database in every animal cruelty plea offer, not just the sentence.

Where can I read the full text of these new laws?

Each statute is posted on the Florida Legislature’s Online Sunshine website, and each of our eight guides links the exact section, such as section 817.537 for rental fraud. If you have been charged, The Brancato Law Firm can tell you how the statute applies to your facts.

Charges under a brand-new statute are often the first of their kind in the courthouse, and early motions can shape how the State uses the law. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, defends clients charged under every one of these October 2026 laws. Call (813) 727-7159 before first appearance if you can; call us at any hour; our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

A Florida judge deciding whether a pastor can testify asks four specific questions about the conversation, and the answers usually turn on details the State never mentions in its charging papers. I have spent more than 25 years in Hillsborough County courtrooms, including years in the Major Crimes Unit of the Hillsborough County Public Defender’s Office, where I handled sex crime and child abuse cases. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and our attorneys build the factual record that decides whether a statement to clergy stays out of a trial.

What Is the Clergy Privilege in Florida?

The clergy privilege is a rule of evidence that protects confidential conversations with a member of the clergy acting as a spiritual adviser. Under section 90.505, Florida Statutes, “a person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual adviser.”

The statute defines a “member of the clergy” as “a priest, rabbi, practitioner of Christian Science, or minister of any religious organization or denomination usually referred to as a church, or an individual reasonably believed so to be by the person consulting him or her.” The privilege belongs to the person who confided, not the pastor. It may be claimed by that person, a guardian, a personal representative, or the clergy member on the person’s behalf.

What Are the Four Requirements for Clergy Privilege in Florida?

Florida courts apply a four-part test. In Nussbaumer v. State, 882 So. 2d 1067 (Fla. 2d DCA 2004), the Second District Court of Appeal stated the test this way, and appellate courts across Florida still cite it:

1. A member of the clergy. The communication must be made to clergy as the statute defines the term, or to someone the person reasonably believed was clergy.
2. Spiritual counsel. The person must have been seeking spiritual counseling and advice, not secular help.
3. The usual course of practice. The clergy member must have received the communication in the usual course of his or her practice or discipline.
4. Private and not for further disclosure. The communication must be made privately and not intended for disclosure, except to others present in furtherance of it.

In Nussbaumer, a man charged with lewd or lascivious molestation of a child had received counseling from a pastor, and the State subpoenaed the pastor’s counseling records. The man testified that he “wanted Christian counseling,” and the sessions took place at the church and centered on prayer and Bible study. The court held that all four requirements were met, ruled the communications and records “privileged as a matter of law,” and quashed the orders compelling disclosure.

The table summarizes how courts have applied the test. Each case turns on its own testimony, which is why our attorneys at The Brancato Law Firm interview the client, and when possible the clergy member, before the privilege hearing.

What Did the Court Decide in Castano v. State?

The Third District Court of Appeal held that a father’s admission to his family’s pastor during family counseling was privileged, and it reversed his child sexual abuse convictions. In Castano v. State, No. 3D2022-2081 (Fla. 3d DCA May 14, 2025), Fernando Castano was tried in Miami-Dade County on eleven counts, including capital sexual battery and lewd and lascivious molestation of a child.

Castano had sought spiritual and pastoral counseling for his family from Lakhi Dadlani, a pastor and certified counselor. At a meeting at his son’s football practice, Castano told the pastor he had sexual encounters with his daughter and that his wife wanted a divorce. The pastor believed Castano wanted him to speak with the wife and daughter to help restore the family, and he then contacted the wife. The trial court found the defense had not proved the conversation was not intended for further disclosure, and the pastor testified at trial.

The appellate court disagreed. It reasoned that “the inclusion of the wife in this communication was in furtherance of the family counseling,” so the disclosure “was simply to another person within that sphere of privilege.” Because the case was a “he said, family said” dispute and the State highlighted the pastor’s testimony in closing, the error was not harmless. The court reversed the eight sexual abuse convictions and affirmed three convictions from a separate domestic incident involving his wife.

The opinion opens with a line that frames the whole decision: “The relationship between a member of the clergy and parishioner is sacred.” At the time of this update, the opinion had not been assigned a Southern Reporter citation.

When Does the Clergy Privilege Not Apply in Florida?

The privilege fails whenever one of the four requirements is missing. In McDermott v. State, 360 So. 3d 1213 (Fla. 5th DCA 2023), a Volusia County man charged with sexual battery of his stepdaughter made admissions to a church member at that man’s home. The Fifth District held the statements were not privileged because the listener “was not a member of the clergy” at the time; he was a lay volunteer who had not been licensed as a minister.

The court added a second reason. The stepdaughter’s mother and the listener’s wife were both present, and the court held their presence was not “in furtherance of the communication,” so the statements were not private. McDermott’s conviction was affirmed.

The contrast with Castano is instructive. A spouse who is part of family counseling can be inside the privilege, but adults who are simply in the room usually are not. These hearings often turn on exactly who was present and why.

Does Clergy Privilege Apply in Child Abuse Cases in Florida?

Yes. Florida abrogates most privileges in child abuse cases but expressly keeps the clergy privilege. Section 39.204, Florida Statutes, provides that the privileges between husband and wife, between professionals and their patients or clients, and “any other privileged communication except that between attorney and client or the privilege provided in s. 90.505” do not apply to communications involving an alleged perpetrator of child abuse.

That exception has two practical effects. A spouse can usually be compelled to testify about a defendant’s admissions in a child abuse case, as the McDermott court held, but a member of the clergy who received a privileged communication cannot. The same statute says abrogated privileges are not grounds for failing to report abuse under section 39.201, Florida Statutes, which requires any person who knows or suspects child abuse to report it to the central abuse hotline.

Florida’s approach is not universal. Law professor Norman Abrams surveyed all fifty states in Addressing the Tension Between the Clergy-Communicant Privilege and the Duty to Report Child Abuse in State Statutes, 44 B.C. L. Rev. 1127 (2003), and found that a majority of states expressly exempt privileged clergy information from reporting duties, some expressly override the privilege for child abuse reporting, and others do not address the conflict at all.

How Many Child Abuse Investigations Happen in Florida?

Florida conducted 175,314 child protective investigations in fiscal year 2021-2022, according to the Florida Department of Children and Families’ annual performance report on sheriffs performing child protective investigations. The same report states that the Hillsborough County Sheriff’s Office received 11,751 child and special condition reports that year.

Those numbers matter for privilege questions. Many child abuse cases begin with a hotline report, and an investigator’s first interviews often reach church leaders, counselors, and family members. Statements made in those early weeks become the evidence the State relies on, so our representation before charges are filed focuses on identifying privileged conversations before anyone repeats them to an investigator.

How Do Defense Attorneys Keep a Pastor’s Testimony Out of a Florida Trial?

The defense raises the privilege before trial, usually by a motion in limine or a motion for a protective order, and proves each of the four requirements with testimony. The person claiming the privilege must prove each requirement, which is where the Castano defense initially fell short in the trial court. Our Tampa child abuse attorney page explains how we defend the underlying charges.

These are the steps our attorneys take when a client has spoken with clergy:

• Identify every conversation. We list each talk with a pastor, priest, counselor, or church member, with the date, place, and who was present.
• Establish the clergy member’s status. Ordination, licensing, and the church’s own description of the role help satisfy the first requirement.
• Document the spiritual purpose. Prayer, confession, scripture study, and pastoral counseling support the second and third requirements.
• Explain anyone else’s presence. As Castano shows, a family member who is part of the counseling can fall within the privilege; a bystander usually cannot.
• Move to quash subpoenas for records. As in Nussbaumer, counseling notes held by the church can be protected along with the conversation itself.
• Preserve the issue for appeal. A timely objection and a full record are what allowed the Castano convictions to be reversed.

Privilege rulings often overlap with other evidence fights in sex crime cases, such as the State’s use of prior accusations, which our guide Can Prior Accusations Be Used Against You in a Florida Sex Crime Case? explains.

Frequently Asked Questions About Clergy Privilege in Florida

Can a pastor be forced to testify about a confession in Florida?

Usually not, if the confession was made privately to a member of the clergy for spiritual counsel, because section 90.505 lets the person who confided block the testimony. Our attorneys at The Brancato Law Firm raise the privilege before trial and build the record on all four statutory requirements.

Does the clergy privilege apply to a youth pastor or church volunteer in Florida?

It applies to a youth pastor who is a minister of the church, but usually not to a lay volunteer unless the person reasonably believed the volunteer was clergy, as McDermott shows. The Brancato Law Firm gathers ordination and church role records early, because this question often decides the hearing.

Is a conversation with a pastor privileged if my spouse was there?

It can be, if the spouse was present in furtherance of the counseling, as in family counseling in Castano v. State. Our attorneys at The Brancato Law Firm look closely at why each person was present, since adults who are not part of the counseling can defeat the privilege.

Do Florida clergy have to report child abuse they learn about in confession?

Florida law requires any person who suspects child abuse to report it, but section 39.204 preserves the clergy privilege, so a privileged communication is treated differently from other information. The Brancato Law Firm advises clients and families who are unsure what a conversation with clergy means for a pending investigation; see our child abuse defense page.

Can the State subpoena church counseling records in a Florida criminal case?

The State can issue the subpoena, but records of privileged clergy communications can be protected, as the court held in Nussbaumer v. State. The Brancato Law Firm moves to quash these subpoenas and seeks protective orders before any records are turned over.

Should I talk to my pastor if I am under investigation for a sex crime in Tampa?

Speak with a defense attorney first, because the privilege has strict requirements and a conversation that misses one of them can become trial evidence. Our attorneys at The Brancato Law Firm offer pre-file advocacy for people who learn they are under investigation.

For how this fits into the rest of a case, see our stage-by-stage guide to the Florida criminal case process.

Talk to a Tampa Defense Attorney Before Anyone Repeats Your Words

The best time to protect a conversation with clergy is before the State asks about it, usually in the first weeks of an investigation. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159, and our attorneys will review who you spoke with, what was said, and whether the privilege applies. Call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa.

For more about our defense strategies, visit our Tampa Child Abuse Attorney page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

The ruling that decides many Florida sex crime trials comes before a single juror is sworn: whether the jury will hear about other accusations. I saw that play out again and again in the Major Crimes Unit, defending homicide, sex crime, and child abuse cases, and over more than 150 jury trials to verdict. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, where our attorneys answer a Williams rule notice with depositions, an independent investigation of the prior accuser, and a targeted motion to exclude.

What is the Williams rule in Florida?

The Williams rule is Florida’s name for the law that controls when a jury may hear about crimes or bad acts other than the one charged. The general version, in section 90.404(2)(a), admits “similar fact evidence of other crimes, wrongs, or acts” only when it proves a material fact such as motive, opportunity, intent, plan, knowledge, identity, or absence of mistake. The same paragraph bars that evidence when it is relevant solely to prove bad character or propensity.

The rule takes its name from Williams v. State, 110 So. 2d 654 (Fla. 1959), a rape prosecution that began in a parking lot near Webb’s City in St. Petersburg. About six weeks before the charged attack, a 16-year-old found Ralph Williams hiding in the back of her car in the same lot at about the same hour. The Florida Supreme Court held that the earlier incident was admissible because it showed a plan, helped identify Williams, and answered his expected consent defense. The court also set the limit that still applies today: evidence whose only relevance is the accused’s character or propensity stays out.

The rule carries the most weight in sex crime prosecutions, where Florida law relaxes it, which is why our Tampa sex crimes lawyer team treats a Williams rule notice as one of the most important filings in the case.

How are sex crime cases different under Florida’s Williams rule?

Sex crime cases are different because Florida law relaxes the propensity ban when the charge is child molestation or a listed sexual offense. Two paragraphs of section 90.404 create that exception, and together they cover sexual battery, lewd or lascivious offenses involving children, and several related crimes.

• Paragraph (2)(b), child molestation. When the defendant is charged with child molestation, evidence of the defendant’s other acts of child molestation “is admissible and may be considered for its bearing on any matter to which it is relevant.” The statute defines child molestation by a list of offenses committed against a person 16 years of age or younger.
• Paragraph (2)(c), sexual offenses. When the defendant is charged with a listed sexual offense, such as sexual battery under section 794.011, evidence of the defendant’s other sexual offenses is admissible on the same terms. The Legislature added this paragraph in 2011, extending the child molestation approach to sexual offenses against victims of any age.

The Florida Supreme Court explained the reach of the child molestation paragraph in McLean v. State, 934 So. 2d 1248 (Fla. 2006), a Second District case in which the State offered testimony about earlier molestation to corroborate a child’s account. The court held that paragraph (2)(b) admits other acts regardless of whether they share any similarity or occurred within the family, and upheld the statute where identity was not disputed. The same opinion warned that section 90.403 keeps the statute from opening “the door to introduction of any and all propensity evidence in sexual molestation cases.” The court also left open whether the statute is constitutional when identity is disputed, an open question that matters whenever a case turns on who committed the act.

The exposure is wide. In October 2024, 1,999 registered sex offenders lived in Hillsborough County communities, with 1,579 in Pinellas and 872 in Pasco, according to the Florida Legislature’s OPPAGA Report 24-11 (December 2024). For anyone in that group who faces a new sex charge, the prior conviction is a likely candidate for a Williams rule notice.

What must the State prove before a jury hears about another accusation?

The State must clear five safeguards before a jury hears about a collateral act in a sex crime case. The first comes from the statute’s notice provision, and the rest come from McLean and section 90.403.

1. Written notice. Under section 90.404(2)(d), the State must serve the defense, no fewer than 10 days before trial, a written statement of the other acts it intends to offer, described with the particularity required of an indictment or information. No notice is required for evidence used only to impeach or in rebuttal.
2. Clear and convincing proof. Before considering admission, the judge must find that the other act was proved by clear and convincing evidence. A rumor, a hunch, or an unsworn complaint should not meet that standard.
3. A prejudice balancing test. Under section 90.403, relevant evidence is inadmissible when the danger of unfair prejudice, confusion, misleading the jury, or needless cumulative evidence substantially outweighs its probative value. McLean told judges to weigh similarity, closeness in time, frequency, and intervening circumstances, plus any factor unique to the case.
4. No feature of the trial. The judge must keep the collateral act from becoming a feature of the trial. When necessary, the court should exclude the evidence or substantially limit how much of it the jury hears.
5. A limiting instruction. When the evidence comes in, the court must, if asked, tell jurors the limited purpose for which they may consider it. At the close of the evidence, the jury must again be told that limited purpose and that the defendant cannot be convicted of a charge not in the information.

Can an accusation that never led to charges be used against you?

Yes. A prior accusation does not need an arrest, a charge, or a conviction to qualify as Williams rule evidence, as long as the State can prove the act by clear and convincing evidence and the evidence survives the balancing test. Florida law draws one firm line, however, and it depends on how the earlier accusation ended.

In State v. Perkins, 349 So. 2d 161 (Fla. 1977), the Florida Supreme Court held that evidence of a crime for which the defendant was acquitted is not admissible in a later trial, calling it fundamentally unfair to make a defendant defend the same accusation twice. By contrast, in Holland v. State, 466 So. 2d 207 (Fla. 1985), the court refused to extend that protection to a robbery charge the State had dropped, because a nolle prosequi (a prosecutor’s decision to abandon a charge) may have nothing to do with the strength of the evidence.

What happens when propensity evidence takes over a trial?

When evidence that proves only character takes over a trial, an appellate court can reverse the conviction even without a defense objection. Two lessons follow: jurors struggle to set that evidence aside, and judges know it.

Research supports that concern. In a mock-jury study of 160 adults published in Law and Human Behavior in 1985, R. L. Wissler and M. J. Saks found that conviction rates were highest when the defendant’s prior conviction was for a crime similar to the one charged, and that jurors did not limit their use of the record as the judge’s instruction directed (NCJRS abstract). For that reason, a limiting instruction should be the last safeguard, after the judge has already screened the evidence.

Green v. State, No. 2D2024-1803 (Fla. 2d DCA Sept. 4, 2026), a Pinellas County sexual battery case, shows the danger. The State introduced a steak knife found in a recessed area of Gregory Green’s van and two sealed, unused condoms, although no evidence connected either item to the crimes. Prosecutors returned to the items through a crime scene technician and a detective, and then told jurors in closing that the knife and condoms were “odd things” they should consider. The Second District held that the items’ only possible relevance was bad character or propensity. Because defense counsel never objected, the court applied fundamental error review, and it found the error, combined with improper prosecutorial comments, required reversal of the sexual battery and battery convictions and a new trial.

Can the defense use someone else’s prior acts? Torbit v. State (2026)

Yes, but only under the general Williams rule, and only with close similarity. A July 2026 First District decision shows how narrow that path is in sex crime cases.

What happened in Torbit

Torbit v. State, No. 1D2024-1393 (Fla. 1st DCA July 29, 2026), arose from a Leon County trial for sexual battery on a victim who was physically helpless to resist. The complainant, T.B., ranged from highly intoxicated to barely conscious during a night of sexual activity in 2018 involving Logan Torbit, another man named Pasinski, and a 17-year-old girl. Pasinski, T.B., and the 17-year-old all testified for the State. Torbit’s defense was that Pasinski, not Torbit, assaulted T.B.

To support that theory, Torbit sought to introduce evidence that Pasinski allegedly sexually battered a different woman, B.B., in May 2019, more than ten months later. Officers found B.B. in a towel because Pasinski had told her to shower. Torbit argued the shower instruction matched how Pasinski and the 17-year-old had bathed T.B. on the night in question, suggesting Pasinski had learned to remove DNA. He offered it as “reverse Williams rule” evidence under paragraph (2)(c), relied on bodycam footage, and specifically disclaimed paragraph (2)(a). The trial court excluded the evidence, and the jury convicted. Torbit faced up to 30 years but received a downward departure of three years in prison followed by three years of sex offender probation.

What the First District held

The First District affirmed on two grounds:

• Paragraph (2)(c) covers only the defendant. By its terms, the paragraph admits evidence of “the defendant’s commission” of other sexual offenses, so it does not reach a collateral offense committed by someone else.
• No proffer, no review. Even if the paragraph applied, Torbit never proffered B.B.’s testimony, so the appellate court had no record to judge what she would have said or how the trial court applied the McLean factors.

Judge Treadwell concurred to make the point sharper. He wrote that paragraph (2)(c) “creates an opportunity only for the prosecution,” so there is no reverse rule to be found in its text. He also explained that Torbit never raised a due process or Confrontation Clause argument in the trial court, which left any constitutional claim unpreserved. The concurrence did not endorse a reverse rule under (2)(c), and it did not decide the constitutional question.

What the defense can still do

The defense still has the traditional reverse Williams rule under paragraph (2)(a). In State v. Savino, 567 So. 2d 892 (Fla. 1990), a defendant charged with killing his six-year-old stepson tried to show that his wife had killed her infant daughter years earlier. The Florida Supreme Court held that defense-offered similar fact evidence is judged by the same standard as the State’s, which for identity means “a close similarity of facts, a unique or ‘fingerprint’ type of information,” and it upheld the exclusion. Six weeks after Torbit, Wellons v. State, No. 4D2025-2340 (Fla. 4th DCA Sept. 9, 2026), added a useful counterweight: the Fourth District agreed that a prior shooting at the defendant’s home was too dissimilar to qualify as reverse Williams rule evidence, yet reversed a murder conviction because the same evidence was admissible for another purpose, to explain why the defendant ran.

Three lessons from these cases shape how our firm tries sex cases:

1. Choose the right paragraph. Offer third-party collateral acts under (2)(a) and build the fingerprint-level similarity Savino requires.
2. Proffer the witness. Put the collateral witness’s actual testimony on the record outside the jury’s presence, because an appellate court will not guess.
3. Raise every ground at trial. State the due process, confrontation, and right-to-present-a-defense arguments to the trial judge, and offer any alternative purpose for the evidence, as the defense did in Wellons. Our post on why your lawyer must object at trial explains why preservation decides so many appeals.

How do our attorneys fight Williams rule evidence?

Our attorneys fight Williams rule evidence by attacking the prior accusation on facts first and on law second. A collateral accuser who looks strong in a police report often looks very different after a deposition and an independent investigation.

1. Investigate the prior accuser. We depose the collateral witness, gather records and social media, interview third parties, and look for motive, delay in reporting, and contradictions.
2. Challenge the notice. We hold the State to the 10-day deadline and the particularity requirement, and we object when the notice is vague about dates, places, or acts.
3. Force the clear and convincing finding. We ask the court to hear live testimony at a pretrial hearing and to rule on the proof standard before any balancing.
4. Argue dissimilarity and remoteness. We line up the differences in age, relationship, location, manner, and timing that McLean tells judges to weigh.
5. Limit what the jury hears. If some evidence comes in, we ask the court to restrict the number of witnesses and exhibits and to keep the prosecutor from making the other act the centerpiece of closing argument.
6. Protect the record. We request limiting instructions at the moment of admission and in the final charge, and we object to every improper use so the issue survives for appeal.

Losing the pretrial hearing does not end the issue. The defense can still limit how the evidence is used at trial, object when it starts to dominate the case, and raise the ruling on appeal.

Related rules often work alongside this one. Florida’s rape shield law limits evidence of the complainant’s sexual history, the child hearsay exception controls a child’s out-of-court statements, and a motion to sever can keep unrelated counts from being tried together. When the defense is that the encounter was consensual, our guide to the consent defense explains how prior-act evidence can shape that strategy.

When should you talk to a lawyer about a prior accusation?

You should talk to a lawyer as soon as you learn that detectives are investigating a sex crime allegation, before any charge is filed if possible. The 10-day notice rule sets only the State’s minimum, and a proper investigation of a collateral accuser takes far longer.

The window before charges is often the most valuable. The State Attorney’s Office reviews every case before deciding to prosecute, and during that window our attorneys can present evidence and context directly to the assigned prosecutor. Our page on representation before charges are filed explains how that process works.

For more about our defense strategies, visit our Sex Crimes page.

Frequently asked questions

Can the State use a sex charge I was acquitted of in Florida?

No. Under State v. Perkins, evidence of a crime for which a jury acquitted you is not admissible against you in a later trial, although a charge the State simply dropped can still be offered if it meets the other requirements. The Brancato Law Firm checks the disposition of every prior case listed in a Williams rule notice and moves to exclude any acquitted conduct before trial.

How old can a prior accusation be and still come in under the Williams rule?

Florida sets no fixed cutoff, but closeness in time is one of the factors a judge must weigh under McLean, and the presence or absence of intervening circumstances matters too. Our attorneys at The Brancato Law Firm build a timeline of the prior accusation and the charged act to show the court how remote and different the two events are. Our Tampa sex crime defense attorneys use that timeline at the pretrial hearing.

Does the prosecutor have to tell my lawyer before using prior accusations at trial?

Yes. Section 90.404(2)(d) requires written notice no fewer than 10 days before trial, describing the other acts with the particularity of a charging document, though no notice is needed for impeachment or rebuttal evidence. The Brancato Law Firm reviews every notice for timing and detail and objects when it falls short.

What should I do if detectives are contacting people from my past during a sex crime investigation?

Decline to give a statement and get a lawyer involved right away, because investigators often look for other accusers before a charging decision. The Brancato Law Firm can step in at that stage through pre-file advocacy, gathering our own evidence and presenting it to the prosecutor before charges are filed.

Is the Williams rule the same as Florida’s rape shield law?

No. The Williams rule governs evidence about the accused’s other acts, while the rape shield law in section 794.022 limits evidence about the complainant’s prior sexual conduct. The Brancato Law Firm litigates both rules when a case calls for it, and our post on Florida’s rape shield law covers its exceptions.

Can a Williams rule error get a sex crime conviction reversed on appeal?

Yes. Florida appellate courts reverse when collateral or propensity evidence was wrongly admitted and the error was not harmless, as the Second District did in Green v. State in 2026. At trial, The Brancato Law Firm makes a clear record with objections, proffers, and requests for limiting instructions so that any error can be reviewed on appeal.

Talk to a Tampa sex crimes defense team now

Before you talk to detectives, or to anyone from your past, about an accusation, call The Brancato Law Firm, P.A. at (813) 727-7159. Founded by Tampa Criminal Defense Attorney Rocky Brancato, our firm starts investigating collateral accusers as soon as we are retained, because the State’s Williams rule notice can arrive as late as 10 days before trial and the work to answer it takes far longer. Call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking and Haitian Creole-speaking clients.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former police academy instructor who taught officers the law of stops and searches, I read Vasquez Perdomo as a case about the Fourth Amendment as much as immigration. Many Florida criminal cases now begin with an encounter involving an officer who also holds federal immigration authority. Our attorneys look at how every stop started, because a stop without reasonable suspicion can still lead to suppression of evidence in a Florida criminal case.

What Happened in Noem v. Vasquez Perdomo?

The case began as a challenge to immigration sweeps in the Los Angeles area in the summer of 2025. Pedro Vasquez Perdomo and other plaintiffs, along with immigrant rights groups, sued the Department of Homeland Security in the U.S. District Court for the Central District of California (No. 2:25-cv-05605). They alleged that agents were stopping people at bus stops, car washes, tow yards, farms, and day-labor sites based on how they looked, what language they spoke, where they were, and what work they did.

On July 11, 2025, District Judge Maame Ewusi-Mensah Frimpong issued a temporary restraining order that barred stops based solely on four factors, alone or in combination:

1. Apparent race or ethnicity.
2. Speaking Spanish or speaking English with an accent.
3. Presence at a particular location, such as a bus stop, car wash, tow yard, day-labor pickup site, or agricultural site.
4. The type of work a person does.

The Ninth Circuit refused to stay that order on August 1, 2025. The government then asked the Supreme Court for emergency relief.

What Did the Supreme Court Decide?

The Supreme Court granted the government’s application and stayed the district court’s order. In Noem v. Vasquez Perdomo, 606 U.S. ___, 146 S. Ct. 1 (2025), the Court’s one-paragraph order stayed the July 11 order “pending the disposition of the appeal” in the Ninth Circuit and any timely petition for certiorari. The order did not explain the Court’s reasons, which is common for rulings on the emergency docket.

What Did Justice Kavanaugh’s Concurrence Say?

Justice Kavanaugh wrote that the four factors, taken together, can give agents reasonable suspicion of illegal presence in the Los Angeles area. He wrote: “To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a ‘relevant factor’ when considered along with other salient factors.” He relied on the high number of people in the Los Angeles region without legal status, which he put at “about 2 million illegal immigrants out of a total population of 20 million.”

He also described the stops as brief: “If the person is a U. S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter.” And he concluded that the plaintiffs likely lacked standing to seek a broad, forward-looking injunction under Los Angeles v. Lyons, because they could not show they were likely to be stopped again. Commentators have since used the term “Kavanaugh stop” for a brief immigration stop justified by a combination of these factors.

What Did Justice Sotomayor’s Dissent Say?

Justice Sotomayor, joined by Justices Kagan and Jackson, argued that stops based on the four factors violate the Fourth Amendment because they are not individualized. Quoting earlier precedent, she wrote that a set of facts cannot be reasonable suspicion if it “describe[s] a very large category of presumably innocent” people. She warned that the ruling pushes citizens to carry proof of status to move freely, which she described as creating a second-class citizenship status for people who look or sound a certain way.

How Does Vasquez Perdomo Fit With Brignoni-Ponce?

Vasquez Perdomo builds on a 50-year-old case about roving Border Patrol stops. In United States v. Brignoni-Ponce, 422 U.S. 873 (1975), Border Patrol officers in southern California stopped a car only because its three occupants appeared to be of Mexican descent. The Supreme Court held that officers on roving patrol need “specific articulable facts” supporting reasonable suspicion, and that Mexican ancestry “standing alone” does not justify a stop, though it can be “a relevant factor.” Justice Kavanaugh cited that “relevant factor” language; Justice Sotomayor cited the same case for its holding that appearance alone is not enough.

Scholars warned about this tension long before 2025. In “How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering,” 98 Geo. L.J. 1005 (2010), presented at a Georgetown Law Journal symposium, then-Dean Kevin R. Johnson of UC Davis School of Law examined how Brignoni-Ponce’s “relevant factor” language and Whren’s tolerance of pretext stops left room for race to shape enforcement decisions.

Has the Supreme Court Said Anything About Race-Based Stops Since?

Yes. Three months later, in Trump v. Illinois, 607 U.S. 1 (2025), a December 23, 2025 decision about the National Guard deployment in Illinois, Justice Kavanaugh wrote in a concurrence that the Fourth Amendment requires that immigration stops “be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force.” He added: “Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity.”

Where Does the Vasquez Perdomo Case Stand in 2026?

The Supreme Court’s stay is still the last word on the July 2025 restraining order, and the lawsuit continues in the district court. According to the Civil Rights Litigation Clearinghouse docket summary, the Ninth Circuit sent the case back in October 2025 so the district court could dissolve the Fourth Amendment portion of the restraining order. In 2026, the district court largely denied the government’s motion to dismiss, the plaintiffs filed a second amended complaint, and in June 2026 they moved for class certification and a new preliminary injunction against alleged warrantless arrests. As of the most recent docket update we reviewed, those motions had not been decided.

Does Vasquez Perdomo Apply in Florida?

The stay itself applies only to the Los Angeles order, but the reasoning reaches Florida because immigration enforcement here runs heavily through local police and sheriffs. Section 908.11, Florida Statutes, requires every sheriff or chief correctional officer operating a county jail to enter a written 287(g) agreement with U.S. Immigration and Customs Enforcement, which lets trained local officers perform certain immigration functions.

Participation goes well beyond county jails. A statewide snapshot posted by FDLE, the Immigration Agency Data Summary, which uses ICE and Criminal Justice Standards and Training Commission data as of June 2026, shows that 272 of 394 Florida law enforcement agencies held a 287(g) Task Force Officer agreement, and that Florida had 9,026 credentialed designated immigration officers.

That means a stop in Tampa Bay may be made by an officer who can ask both criminal and immigration questions. Justice Kavanaugh’s later statement in Trump v. Illinois, that officers “must not make interior immigration stops or arrests based on race or ethnicity,” is a point our attorneys raise when the facts show appearance or language drove the stop.

Can Evidence From an Unlawful Immigration Stop Be Suppressed in Florida?

In a Florida criminal case, yes, evidence from a stop made without reasonable suspicion can be suppressed under the Fourth Amendment, no matter which agency made the stop. A traffic or street stop that leads to drugs, a weapon, or a no-valid-license charge rises or falls on what the officer knew before the stop. Our Tampa criminal traffic lawyer page covers the license charges that often follow these stops.

Immigration court is different. In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Supreme Court held that the exclusionary rule generally does not apply in civil deportation proceedings, while leaving open “egregious violations of Fourth Amendment or other liberties.” So a suppression win in state court does not automatically end an immigration case, and a person facing both needs advice on each. Our firm handles the Florida criminal case and works with the client’s immigration counsel.

What Should You Do If You Are Stopped and Questioned About Immigration Status?

Stay calm, do not run or resist, and do not lie or show false documents. You can ask whether you are free to leave. You can decline to answer questions about where you were born or your immigration status and say you want to speak with a lawyer, though a driver must still produce a license, registration, and proof of insurance on request in Florida. Remember the officer’s name, agency, and badge number, and write down what happened as soon as you can.

If a family member is arrested in Hillsborough County, language matters from the first hearing. Under section 903.046, Florida Statutes, immigration status is one of the factors a judge considers in setting bail, and in the 13th Judicial Circuit, the Court Interpreter Center provides interpreters for first appearance, arraignment, and trial. Our guides to how a bond hearing works in Tampa and to our Spanish-speaking criminal defense team explain what families can expect. For another recent Fourth Amendment decision, see our post on Case v. Montana and police welfare checks.

Frequently Asked Questions About Noem v. Vasquez Perdomo

Did the Supreme Court rule that ICE can use race in immigration stops?

No, the Court issued an unexplained stay, and Justice Kavanaugh’s concurrence said apparent ethnicity alone cannot furnish reasonable suspicion, though it can be one factor among others. The Brancato Law Firm reads the stop reports in our clients’ Florida cases to see whether anything beyond appearance or language supported the stop.

Is Noem v. Vasquez Perdomo a final decision?

No, it is an emergency stay that keeps the July 2025 restraining order on hold while the case continues in the lower courts. Our attorneys at The Brancato Law Firm follow the litigation because a later ruling could change how courts view these stops.

What is a Kavanaugh stop?

A Kavanaugh stop is a commentator’s term for a brief immigration stop justified by a combination of factors such as location, type of work, language, and apparent ethnicity, based on Justice Kavanaugh’s concurrence. The Brancato Law Firm challenges the reasonable suspicion behind any stop that leads to a Florida criminal charge; see our criminal traffic defense page for license cases.

Do I have to answer an officer’s questions about my immigration status in Florida?

No, you generally have the right to remain silent and to ask for a lawyer, but you should not lie, run, or present false documents, and drivers must show a license on request. Our attorneys at The Brancato Law Firm, including Spanish-speaking staff, can explain these rights to your family in their own language.

Can a U.S. citizen be detained in an immigration stop?

Yes, the stops allowed by the stay can involve U.S. citizens, and Justice Kavanaugh wrote that a citizen “will be free to go after the brief encounter.” The Brancato Law Firm advises clients who were detained to write down the details right away, because those facts matter if a criminal charge follows.

Can a Florida criminal case be dismissed because of an illegal stop?

Often the remedy is suppression of the evidence, which can lead the State to drop the charge if the evidence was its whole case. Our attorneys at The Brancato Law Firm file motions to suppress in Hillsborough, Pinellas, and Pasco County courts when a stop lacked reasonable suspicion; our Tampa criminal defense team can review the report.

For how this fits into the rest of a case, see our stage-by-stage guide to the Florida criminal case process.

Talk to a Tampa Defense Attorney After a Stop

If a stop led to an arrest, the first decision is whether to challenge how the officer made it, and that review should happen before the arraignment. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French, so families can talk with us directly about the criminal case and its immigration consequences.

For more about our defense strategies, visit our Tampa Criminal Traffic Lawyer page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

Most contempt cases are won or lost on procedure, because the rules a judge must follow before punishing someone are strict and appellate courts reverse when they are skipped. I learned how courtroom conduct is judged as a former police academy instructor who trained officers on testimony, and over more than 25 years in Hillsborough County courtrooms. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and our attorneys start every contempt case by checking whether the order to show cause, the notice, and the proof meet the rules before we argue the facts.

What Is Contempt of Court Under Florida Law?

Contempt of court is conduct that defies a court’s authority, either by refusing to obey a lawful order or by obstructing or disrespecting the court itself. Section 38.23, Florida Statutes, defines one core form: “A refusal to obey any legal order, mandate or decree, made or given by any judge relative to any of the business of the court, after due notice thereof, is a contempt.” Section 38.22 gives every court the power to punish contempts “whether such contempts be direct, indirect, or constructive.”

Florida courts sort contempt into three types, and the type controls the procedure, the penalty, and the defense:

What Is Direct Criminal Contempt?

Direct criminal contempt is misconduct the judge personally sees or hears in the courtroom, and the judge can address it the same day. Under Florida Rule of Criminal Procedure 3.830, the judge must still tell the person what conduct is at issue, give the person a chance to explain or offer mitigation, and then enter a written judgment reciting the facts. The person must be allowed to present excusing or mitigating circumstances before sentencing.

Twine v. State, 188 So. 3d 44 (Fla. 3d DCA 2016) shows how fast this moves. Chakaris Twine said “This is a bunch of bullshit” after a judge refused to lower his bond in a cocaine case, then immediately apologized and explained that he was the sole caretaker for his mother, who was undergoing chemotherapy. The judge found him in direct criminal contempt and imposed 180 days in jail. The Third District said the sentence “appears to be excessive” but affirmed it, because the judge followed rule 3.830 and an appellate court has no authority to reduce a lawful sentence. The lesson is that the hearing in front of the trial judge is usually the only real chance to shape the sentence.

What Is Indirect Criminal Contempt?

Indirect criminal contempt is a violation of a court order that happens outside the courtroom, so the judge did not see it and the accused gets most of the protections of a criminal case. Under Florida Rule of Criminal Procedure 3.840, the process starts with a written order to show cause that states the essential facts, and when it is based on someone else’s report, that report must be sworn by a person with personal knowledge. The accused has the right to counsel, a reasonable time to prepare, and a hearing where the State must prove guilt beyond a reasonable doubt.

The most common source of indirect contempt in our practice is an alleged violation of a domestic violence injunction or a pretrial no-contact order. Under section 741.31, Florida Statutes, the State Attorney decides whether to file a new criminal charge for the violation, move for an order to show cause for criminal contempt, or both. A willful violation charged as a new crime is a first-degree misdemeanor, and it becomes a third-degree felony when the person has a prior conviction for domestic violence or an injunction violation against the same victim. Our Tampa domestic violence defense attorney page covers injunction cases in more detail.

Criminal vs. Civil Contempt: What Is the Difference?

Criminal contempt punishes something that already happened, while civil contempt pressures a person to do something the court ordered. The difference decides whether jail time has a fixed end date or ends the moment the person complies.

Civil contempt in Florida reaches a very large number of families through child support enforcement. The Florida Department of Revenue’s Child Support Program reports that, as of 2026, it provides child support services to over 879,000 children, and contempt is one of the tools courts use when a support order goes unpaid.

What Are the Penalties for Contempt of Court in Florida?

Criminal contempt in Florida carries up to 12 months in jail and a $500 fine, because contempt is a common-law crime and no statute sets a different maximum. In Aaron v. State, 284 So. 2d 673 (Fla. 1973), the Florida Supreme Court reviewed a man convicted of trying to influence a grand juror, held that “criminal contempt is a crime under Florida law,” and applied the limits in section 775.02, Florida Statutes: “the fine shall not exceed $500, nor the imprisonment 12 months.”

Contempt also carries consequences outside the jail sentence. A criminal contempt conviction is a criminal record, and a contempt finding in a family case can affect custody and timesharing decisions.

When Do You Get a Jury Trial for Contempt in Florida?

You are entitled to a jury in a criminal contempt case when the judge intends to impose six months or more in jail. In Aaron (1973), the Florida Supreme Court held that a judge who denies a jury “cannot impose a sentence of six months’ imprisonment, or greater,” and that a judge who contemplates that sentence “must empanel a jury to try the facts, unless the defendant has made a waiver thereof.” The court reaffirmed the six-month line in Aaron v. State, 345 So. 2d 641 (Fla. 1977), the second appeal in the same grand juror case, and declined to extend the jury right to every criminal contempt.

Demanding a jury changes the case. It caps the sentence a judge can impose without one, and it gives the defense time, discovery, and twelve citizens instead of one judge who may also be the person whose order was violated.

Firm case result: jury trial demand leads to dismissal. A client faced indirect criminal contempt with exposure to more than six months in jail. Our firm demanded a jury trial, a right that neither the judge nor the opposing attorney expected in a contempt case. As the case moved toward the jury trial date, the contempt charge was dismissed. Past results do not guarantee future outcomes.

What Happens When the Rules Are Not Followed?

When a judge skips a required step, Florida appellate courts often reverse the contempt finding as fundamental error, even if no one objected at the hearing. The Second District Court of Appeal, which hears appeals from Hillsborough, Pinellas, and Pasco Counties, has done this repeatedly in cases where the order to show cause was not backed by a sworn statement from someone with personal knowledge.

In A.N.W. v. State, 386 So. 3d 621 (Fla. 2d DCA 2024), a Pasco County dependency judge held a teenager in indirect contempt based on an unsworn report from a care provider who admitted at the hearing that she had not seen any of the conduct. The Second District reversed, holding that the affidavit requirement in Florida Rule of Juvenile Procedure 8.150(c)(2) is substantively the same as rule 3.840(a) and that failing to follow it is fundamental error. A year later, in C.M.B. v. State, 406 So. 3d 361 (Fla. 2d DCA 2025), the same court reversed another Pasco County juvenile’s contempt judgment and secure detention order because none of the orders to show cause was supported by an affidavit, and the State conceded the error.

These cases arose in juvenile court, but the same rule applies to adults through rule 3.840. Our attorneys read the order to show cause and the supporting affidavit first, because a defect there can end the case before the facts are ever argued.

Can You Go to Jail for Civil Contempt in Florida?

Yes, but only if the judge finds you have the present ability to do what the order requires. In Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985), a father was jailed for failing to pay a $966 child support purge amount even though the record showed he was indigent. The Florida Supreme Court held that the trial court “must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions,” and explained that without that ability, “the contemnor holds no key to the jailhouse door.”

The U.S. Supreme Court set national minimums in Turner v. Rogers, 564 U.S. 431 (2011). Michael Turner was sentenced to 12 months for unpaid support in South Carolina at a hearing where no one told him his ability to pay was the central question. The Court held that due process does not always require appointed counsel in civil support contempt, but it does require safeguards: notice that ability to pay is critical, a way to gather financial information, a chance to respond, and an express finding of ability to pay. Because Turner received none of these, his jailing violated due process.

Legal scholars have long warned about what happens when those safeguards fail. In “Civil Contempt and the Indigent Child Support Obligor: The Silent Return of Debtor’s Prison,” published in the Cornell Journal of Law and Public Policy in 2008, Professor Elizabeth G. Patterson examined how civil contempt can become imprisonment for debt when courts jail parents who cannot pay. Bowen and Turner are the tools our attorneys use to keep that from happening to a client.

How Do Our Attorneys Defend a Contempt Charge?

Our attorneys defend contempt by attacking the procedure first, then the proof of willfulness, then the sentence. The strongest defenses we see in Hillsborough, Pinellas, and Pasco County courts are:

1. A defective order to show cause. No sworn affidavit, an affiant without personal knowledge, or an order that does not state the essential facts.
2. No proof of willfulness. Indirect criminal contempt requires proof beyond a reasonable doubt that the person intended to disobey the court. An unclear order, lack of notice, or an honest misunderstanding can defeat that element.
3. No present ability to comply. In civil contempt, inability to pay or perform is a complete answer to jail under Bowen.
4. The jury demand. If the court wants a sentence of six months or more, the defense can insist on a jury, which caps the judge’s sentencing power without one.
5. Judicial disqualification. When the contempt involves criticism of the judge, the rules allow the defense to ask that a different judge hear it; our post on disqualifying a trial judge in Tampa explains that process.
6. Mitigation and a compliance plan. Showing the court that the order is now being followed often resolves a civil contempt and can reduce a criminal contempt sentence.

What Should You Do If You Receive an Order to Show Cause?

Appear on the date in the order, bring a lawyer, and do not argue with the judge. An order to show cause is a court order, and missing the hearing can lead to a writ of bodily attachment or an arrest warrant. Read the order closely, gather proof of any payments or compliance, and stop any contact the order prohibits, even if the other person reaches out first.

Courtroom conduct matters at that hearing. Our guides on what to wear to court and bringing a child to court cover the practical details that keep a hearing from going wrong, and our Hillsborough County criminal defense attorney page explains how local cases move through the 13th Judicial Circuit.

Frequently Asked Questions About Contempt of Court in Florida

Can a judge put you in jail on the spot for contempt in Florida?

Yes, for direct criminal contempt a judge can find you guilty and sentence you at the same hearing, as long as the judge follows rule 3.830 and lets you explain first. The Brancato Law Firm uses that moment to present mitigation, because the appellate court in Twine could not reduce a 180-day sentence it called excessive.

Is violating a no-contact order contempt of court in Florida?

Yes, violating a pretrial no-contact order or an injunction can be prosecuted as indirect criminal contempt, and some injunction violations can also be charged as a separate crime under section 741.31. Our attorneys at The Brancato Law Firm check whether the client was properly served with the order and whether the contact was actually prohibited; see our domestic violence defense page.

Can contempt of court charges be dropped in Florida?

Yes, a contempt charge can be dismissed when the order to show cause is defective, when the State cannot prove willfulness, or when the accused comes into compliance. The Brancato Law Firm has seen a contempt charge dismissed after demanding a jury trial, though every case turns on its own facts.

Do you get a public defender for contempt of court?

An indigent person facing indirect criminal contempt with possible jail time is generally entitled to appointed counsel, while in civil support contempt counsel is not automatically required under Turner v. Rogers. The Brancato Law Firm represents clients in both kinds of contempt hearings and can step in before the show cause date; our Tampa criminal defense team can be reached at any hour.

How long can you be jailed for civil contempt of child support in Florida?

Civil contempt jail lasts until the parent pays the purge amount or otherwise complies, but the judge must first find the parent can actually pay it under Bowen v. Bowen. Our attorneys at The Brancato Law Firm bring pay records, job search evidence, and financial affidavits to prove inability to pay when that is the truth.

Does a contempt conviction go on your criminal record in Florida?

Yes, a criminal contempt conviction creates a criminal record, while a civil contempt finding is part of the family or civil court file. The Brancato Law Firm looks at whether a withhold of adjudication or a later sealing is possible when we negotiate the outcome of a criminal contempt charge.

For how this fits into the rest of a case, see our overview of how a Florida criminal case moves from investigation to appeal.

Talk to a Tampa Attorney Before Your Contempt Hearing

The show cause date is the deadline that matters, and the defenses described above have to be raised at or before that hearing. Our attorneys at The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will review the order, the affidavit, and your proof of compliance before you stand in front of the judge. Call (813) 727-7159; you can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish and Haitian Creole speakers facing criminal charges.

For more about our defense strategies, visit our Tampa Domestic Violence Defense Attorney page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.