As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, a member of the National College for DUI Defense, and a former police academy instructor, I have watched a single DUI arrest threaten careers that took truck and bus drivers decades to build. A CDL case is two fights at once: the disqualification with the Florida Department of Highway Safety and Motor Vehicles and the criminal charge in county court. Our attorneys take both from the first day, and in 2025 our firm won back a commercial driver’s CDL on appeal after a hearing officer upheld his suspension.

What is the blood-alcohol limit for CDL drivers in Florida?

The limit is 0.04 while driving a commercial motor vehicle and 0.08 in a personal vehicle. Florida goes further for commercial vehicles: section 322.62, Florida Statutes, says a person “who has any alcohol in his or her body may not drive or be in actual physical control of a commercial motor vehicle in this state.”

Florida defines a commercial motor vehicle in section 322.01 as one with a gross vehicle weight rating of 26,001 pounds or more, one designed to carry more than 15 people including the driver, or one carrying hazardous materials that require placards. Section 322.62 also makes clear that a commercial driver can still be prosecuted for regular DUI under section 316.193.

How long is a CDL disqualified after a DUI in Florida?

A first DUI conviction or test refusal disqualifies a CDL holder from commercial driving for 1 year. Florida adopts these periods in section 322.61, Florida Statutes, and they match the federal table in 49 C.F.R. § 383.51.

Federal rules allow a state to reinstate a driver disqualified for life after 10 years if the driver voluntarily completed an approved rehabilitation program, and a driver reinstated that way who is later convicted of another disqualifying offense can never be reinstated, under 49 C.F.R. § 383.51(a)(6). Our attorneys at The Brancato Law Firm tell CDL clients at the first meeting how close a plea offer would put them to that lifetime line.

Does a DUI in my personal car affect my CDL in Florida?

Yes. Under section 322.64(1)(a), the officer disqualifies a CDL holder who is arrested with a 0.08 or higher result, or who refuses a test, while driving any motor vehicle, and section 322.61(3)(b) imposes the same 1-year disqualification for a DUI conviction in a personal car. The officer issues a 10-day permit that covers noncommercial vehicles only. Our firm talks through the CDL consequences in the first phone call so the driver does not report to work behind the wheel of a truck.

Can a CDL holder get a hardship license after a DUI in Florida?

A CDL holder can apply for a business-purposes license for a personal vehicle, but no hardship license allows commercial driving. Section 322.64(10) says a disqualified driver may be eligible for a business or employment license under section 322.271, but “such business or employment purposes license shall not authorize the driver to operate a commercial motor vehicle.” For a driver whose income depends on the CDL, the review hearing and the criminal case are the only ways to keep driving commercially.

Can a CDL holder get a withhold or diversion on a DUI in Florida?

A withhold of adjudication or a diversion program does not protect a CDL the way it can protect a regular license. Federal law bars masking: under 49 C.F.R. § 384.226, a state “must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program” that would keep a CDL holder’s traffic conviction off the national driver record, in any type of vehicle. Florida applies the federal definition of conviction to CDL holders in section 322.01(11)(b), and that definition in 49 C.F.R. § 383.5 includes a plea of guilty or no contest accepted by the court and the payment of a fine or court cost, regardless of whether the penalty is suspended or probated.

That rule changes how our attorneys negotiate. In Hillsborough County, the State Attorney’s RIDR program resolves many first-time DUI cases with a plea to reckless driving, but reckless driving is a serious traffic violation for a CDL holder under section 322.61(1), and two of them within 3 years bring a 60-day disqualification. For a commercial driver, our firm weighs every offer against the CDL record before recommending it, and we often push for a dismissal or a trial rather than a plea that keeps the client off the road.

How many commercial drivers are kept off the road for drug and alcohol violations?

As of January 2, 2026, 202,345 commercial drivers were in prohibited status in the Federal Motor Carrier Safety Administration’s Drug and Alcohol Clearinghouse, meaning they could not drive commercially until completing the return-to-duty process, according to the Clearinghouse December 2025 monthly report. The same report shows 16,213 violations recorded for drivers holding Florida-issued CDLs or learner’s permits, the third-highest total of any state, behind Texas and California. Those figures come from workplace testing, which runs separately from a DUI case, and a DUI arrest can set off both.

Record-keeping errors also affect CDL holders. In a 2021 audit, the U.S. Department of Transportation’s Office of Inspector General found that states did not transmit 18% of 2,182 major-offense convictions on time and that some drivers served shorter disqualifications than federal law requires, as summarized in report ST2021030. Our attorneys check the driver record itself before advising a client on dates, because the disqualification a driver is told about is not always the one on file.

What happens at a CDL disqualification hearing in Florida?

A CDL disqualification hearing is a review before a hearing officer of the state motor vehicle department, and the driver must request it within 10 days of the notice. Under section 322.64(7), the hearing officer decides by a preponderance of the evidence whether the officer had probable cause to believe the person was driving or in actual physical control with alcohol or drugs in the body, and either whether the result was 0.08 or higher or whether the person refused after being warned of the 1-year or permanent consequence.

The statute gives the driver real leverage. If the department fails to schedule the formal hearing within 30 days of the request, it must invalidate the disqualification, and if the arresting officer or breath technician fails to appear under subpoena, the department must invalidate it as well. A hearing request does not pause the disqualification, so the timing of every step matters.

The regular-license suspension that usually comes with a CDL disqualification is reviewed under section 322.2615, and there the lawfulness of the arrest is fair game. In Florida Department of Highway Safety & Motor Vehicles v. Hernandez, 74 So. 3d 1070 (Fla. 2011), a driver lost his license for refusing a breath test, and the hearing officer would not consider his argument that the request did not follow a lawful arrest. The Florida Supreme Court held that the department cannot suspend a license for a refusal that was not incident to a lawful arrest, and that the hearing officer must decide that issue. Our attorneys raise the legality of the stop and arrest at the license hearing, months before a criminal judge rules on a motion to suppress. If the hearing officer sustains the disqualification, the driver can ask the circuit court to review the decision by petition for writ of certiorari, filed within 30 days of the order.

How did our firm get a CDL suspension overturned on appeal?

Our client, a commercial driver in Hillsborough County, was arrested for DUI, and the department suspended both his regular license and his CDL. Our firm requested a formal review hearing within the 10-day window.

We made a deliberate choice not to subpoena the arresting officer. We expected the department to rely only on its own paperwork, the packet containing the police report and test documents, and that paperwork did not establish probable cause on its face. The hearing officer upheld the suspension anyway, relying on facts that were not in the record.

Our firm filed a petition for writ of certiorari in the Thirteenth Judicial Circuit, arguing that the hearing officer departed from the essential requirements of law. On September 19, 2025, the court granted the petition in case number 25-CA-004400, the suspension was overturned, and both the client’s regular license and his CDL were reinstated. These redacted public records show the court’s reasoning:

• Petition for Writ of Certiorari (PDF, redacted)
• Order Granting the Petition (PDF, redacted)

Past results do not guarantee future outcomes.

What should a CDL holder do in the first 10 days after a DUI arrest?

The first 10 days decide whether the disqualification gets reviewed at all. Our firm uses that time this way:

Talk to a lawyer before signing any written statement for a carrier or an insurer. For the general timeline after any DUI arrest, see our guide on what happens after a DUI arrest in Hillsborough County, and for how the State proves the charge, see what DUI means in Florida. Our Tampa DUI lawyer page covers the rest of our DUI defense work, and our Hillsborough County criminal defense page explains the local court process.

Frequently asked questions about CDL DUI cases in Florida

Can I drive my truck for work after a DUI arrest in my own car in Florida?

No. A CDL holder who blows 0.08 or higher or refuses a test is disqualified from commercial driving at the arrest, and the 10-day permit covers noncommercial vehicles only. The Brancato Law Firm requests the review hearing right away, because a successful review is the only way to restore commercial driving while the criminal case is pending.

Is a DUI refusal treated the same as a DUI conviction for a CDL?

Yes, for disqualification purposes. A first refusal brings the same 1-year disqualification as a first conviction under section 322.61 and the federal table, and a second refusal or conviction in a separate incident brings a lifetime disqualification. Our attorneys at The Brancato Law Firm test whether the arrest was lawful and whether the officer gave the CDL warning the statute requires.

Can a CDL DUI charge be dropped or reduced in Florida?

Yes. A CDL DUI can be dismissed when the stop was unlawful, the test is excluded, or the evidence of impairment is weak, but a reduction to reckless driving still counts as a serious traffic violation on a CDL record. The Brancato Law Firm builds CDL cases toward dismissal or trial when a plea would cost the client the license, as described on our DUI defense attorney in Tampa page.

Does a withhold of adjudication protect my CDL?

No. Federal rules treat a plea accepted by the court as a conviction for CDL purposes and bar states from masking it. Our attorneys at The Brancato Law Firm explain this before any plea, as our guide to Florida DUI penalties notes for regular licenses as well.

What if the hearing officer upholds my CDL disqualification?

You can ask the circuit court to review the decision through a petition for writ of certiorari, filed within 30 days of the order. The Brancato Law Firm won that kind of review in the Thirteenth Judicial Circuit in 2025, restoring a commercial driver’s regular license and CDL.

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

Talk to our attorneys about a CDL DUI

If you hold a CDL, call before the 10-day review deadline passes, because the disqualification is already running. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, handles the review hearing and the criminal case together; call (813) 727-7159 at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. For more about our defense strategies, visit our DUI 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.

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.

Published September 8, 2026.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I have tried cases in Tampa Bay courtrooms for more than 25 years, and the hardest conversations I have are with families whose loved one was convicted at a trial where the defense lawyer sat silent through a closing argument that should have drawn five objections. Green is a reminder that silence is not always fatal — and a warning about how much has to go wrong before an appellate court will step in without it.

What Counts as Prosecutorial Misconduct in a Florida Trial?

Argument or evidence that asks the jury to convict for a reason other than proof of the charged crime beyond a reasonable doubt. A prosecutor is an advocate, and closing argument is supposed to be forceful; the line is crossed when the argument does one of the things Florida courts have long held improper:

A single stray remark rarely reverses a conviction. What reverses convictions is a pattern — and, when no one objected, a pattern severe enough to meet the fundamental-error standard.

Why Does It Matter Whether Your Lawyer Objected?

Because Florida’s contemporaneous objection rule ordinarily means that an error no one raised at trial cannot be raised on appeal. The theory is that the trial judge should have the chance to fix the problem — strike the comment, instruct the jury, or grant a mistrial — while it is happening. An appellate court will not reverse a conviction for a mistake the defense never asked the judge to correct.

The one exception is fundamental error. Green states the standard in the terms Florida courts have used for decades: fundamental error is “the type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the alleged error.” As the court put it, “the sole exception to the general rule is where the unobjected-to comments rise to the level of fundamental error.” That is a deliberately high bar. It is not enough that the prosecutor said something improper; the improper conduct has to be so pervasive or so damaging that the trial itself cannot be trusted.

What Happened in Green v. State?

A credibility contest was decided with evidence that had no bearing on credibility. In Green v. State, No. 2D2024-1803 (Fla. 2d DCA Sept. 4, 2026), Gregory Green was tried in Pinellas County on sexual battery and incest charges arising from an encounter with his biological niece in his van. (Read the opinion.) The State’s theory was force; the defense’s theory was that the sexual contact was consensual — a theory that conceded the incest count, to which the defense stipulated, and put the sexual battery counts squarely on the question of consent.

Into that trial the State introduced two things recovered from the van: a steak knife found in a recessed compartment, and two sealed, unused condoms. The niece never testified that Green used a weapon, threatened her with one, or that she ever saw one. She said nothing about condoms. Defense counsel did not object to either exhibit. In closing, the prosecutor made the items a theme — “Had two condoms in it. It’s a strange thing to find, I would submit to you folks. Two condoms in the back of his van, a knife in plain view[,] which is — it’s odd things” — and told the jury: “When he took [the victim] in that van, I submit to you he knew exactly what he was doing. It was thought out. He preyed on her.” The State argued the jury should consider the knife as evidence of guilt and relied on the knife and condoms to show Green’s “state of mind and intent.”

The Second District reversed the sexual battery and battery convictions and remanded for a new trial. It held that admitting the knife and the condoms was error because “the only possible relevance of the [items] would be to demonstrate [Green’s] bad character or propensity” — no link to the charged crimes was ever established, and intent is not an element of sexual battery. It further held that the prosecutor “made improper statements that amounted to personal opinions of guilt” and “improper statements implicating Green’s right to not testify and shifting the burden of proof.” And it concluded that “the improper statements taken together with the State’s use and emphasis on irrelevant evidence … lead to the conclusion that their cumulative effect constitutes fundamental error requiring reversal.” The incest conviction, which the defense had conceded, was affirmed. Judges Silberman, Morris, and Black sat on the panel.

Why Were the Knife and the Condoms Inadmissible?

Because Florida’s evidence code forbids exactly the inference the State wanted the jury to draw. Section 90.404(1), Florida Statutes, provides that “evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion.” Subsection (2)(a) allows evidence of other acts when it is “relevant to prove a material fact in issue” such as motive, intent, plan, or identity, “but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” And even relevant evidence goes out under section 90.403 when “its probative value is substantially outweighed by the danger of unfair prejudice.”

Run the knife and the condoms through that framework and they fail at the first step. A knife in a compartment that the alleged victim never saw does not prove force; it proves that the defendant owned a knife. Sealed condoms do not prove a sexual battery; they prove, at most, that the defendant anticipated consensual sex — which was the defense. The State’s only real use for them was the one the prosecutor made explicit: they were “odd things,” they showed “he knew exactly what he was doing,” and therefore he was the kind of man who would do this. That is a propensity argument, and the code prohibits it. The court’s related point about intent is technical but important: sexual battery is defined by the act and the absence of consent, so “state of mind and intent” was not a material fact the knife could have been offered to prove.

The same body of law governs the State’s use of prior bad acts in sex-crime prosecutions more broadly — our article on the Williams rule in Florida sex crimes cases covers the procedural requirements the State must meet before that evidence comes in.

How Does Cumulative Error Work?

By adding up errors that might each be survivable alone. Green did not rest on the knife alone, or the condoms alone, or any single sentence of the closing. It rested on all of it together: irrelevant physical evidence admitted without objection, a closing argument that made that evidence its centerpiece, personal opinions of guilt, and comments touching the right to remain silent and the burden of proof — in a trial that came down to whether the jury believed the complainant or the defendant’s account of consent. In a case like that, the court reasoned, the cumulative effect of the errors was such that a guilty verdict could not be trusted to have been obtained without them.

For appellate counsel, cumulative error is the argument that turns a list of individually “harmless” mistakes into a reversal. For trial counsel, it is a reason to put every one of those mistakes on the record as it happens, because a preserved error is reviewed under a far more forgiving standard than an unpreserved one.

What Does This Mean If You or a Family Member Has Already Been Convicted?

That the transcript is worth reading closely, and quickly. Three things follow from Green:

1. A failure to object is not the end of the appeal. If the trial record shows improper evidence and a pattern of improper argument, fundamental error is a live claim on direct appeal even though trial counsel stayed silent.
2. The clock is short. A notice of appeal in a Florida criminal case must be filed within thirty days of the sentence. If that window is missed, the fundamental-error argument may have to be repackaged as an ineffective-assistance claim in a postconviction motion, which is a different and harder path.
3. The trial lawyer’s silence is itself evidence. Where the record shows errors that should have drawn objections, the failure to object can support a claim that counsel was ineffective — a separate route to a new trial if the direct-appeal route is unavailable.

Our attorneys review trial transcripts for exactly these patterns, and Green gives that review a fresh Second District precedent to anchor it. For a related look at how appellate courts treat trial-level errors, see our discussion of jury instruction error on appeal.

How Do Our Attorneys Guard Against This at Trial?

By treating every physical exhibit and every sentence of closing as something that has to be earned. Concretely:

• Motions in limine on physical evidence. Before the jury is seated, we force the State to articulate the link between each exhibit and an element of the charged crime. A knife no witness will mention and condoms no witness will discuss do not survive that hearing.
• Objection, every time. A single objection to a pattern of improper argument is not enough; each improper comment is objected to, the objection is ruled on, and where warranted a mistrial is requested. That preserves the issue under the ordinary harmless-error standard rather than leaving the client to hope for a fundamental-error finding later.
• Curative instructions on the record. When the judge sustains an objection, we ask for the instruction — and note for the record when it cannot cure the harm.
• Protecting the silence. Any argument that edges toward what the defendant “did not explain” or what the defense “did not show” draws an immediate objection on both constitutional and burden grounds.

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

What Should You Do If You Suspect Misconduct in Your Trial?

Get the transcript ordered and reviewed by counsel who did not try the case, before the appeal deadline runs. Write down every moment of the trial that felt wrong — an exhibit that seemed to come from nowhere, a comment about you not taking the stand, a closing that talked about what kind of person you are rather than what happened. Those impressions often point straight to the pages an appellate lawyer needs to read first.

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 Prosecutorial Misconduct in Florida

Is prosecutorial misconduct the same as fundamental error?

No. Misconduct is the improper conduct; fundamental error is the standard an appellate court applies when deciding whether unobjected-to misconduct requires reversal. Most misconduct that is objected to at trial is reviewed for harmless error, a lower bar. Unobjected-to misconduct must reach the fundamental-error level — an error without which “a verdict of guilty could not have been obtained.”

What is “vouching,” and why is it improper?

Vouching is a prosecutor personally endorsing a witness’s truthfulness or the defendant’s guilt — “I believe her,” “I submit to you he knew exactly what he was doing.” It is improper because it asks the jury to rely on the prosecutor’s judgment instead of the evidence, and because the prosecutor’s office carries an authority a witness does not.

Can the prosecutor comment on the defendant not testifying?

No. Any comment that is fairly susceptible of being interpreted as a reference to the defendant’s silence is improper, and arguments about what the defense failed to explain or disprove risk crossing the same line by shifting the burden of proof. Green identified both kinds of comment among the errors that required reversal.

Does a reversal mean the charges are dismissed?

Usually not. Green was remanded for a new trial on the sexual battery and battery counts, which the State may retry without the improper evidence and argument. A reversal for insufficient evidence would bar retrial, but a reversal for trial error does not.

Why was the incest conviction affirmed?

Because the defense conceded it. The theory of the case was consent, and a consensual sexual relationship with a biological niece is still incest under Florida law. The court reversed only the counts on which the improper evidence and argument could have affected the verdict.

My lawyer didn’t object to anything. Do I still have an appeal?

Potentially yes, on a fundamental-error theory — and Green is a September 2026 example of exactly that. Whether the errors in your trial reach that level depends on the record, which is why the transcript has to be reviewed by appellate counsel promptly.

If you or a family member was convicted after a trial in Hillsborough, Pinellas, or Pasco County and something about the evidence or the prosecutor’s closing argument did not sit right, the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — can review the transcript and tell you whether Green applies. Call (813) 727-7159 before the thirty-day appeal window closes.

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.

An appellate judge reading a Florida trial transcript looks first for a timely, specific objection and a ruling on it. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I have taken more than 150 jury trials to verdict and have spent more than 25 years in Hillsborough County courtrooms. Our attorneys try every case knowing that the transcript we make at trial is the only record an appeals court will ever read.

What does it mean to preserve an issue for appeal in Florida?

Preserving an issue means giving the trial judge a clear chance to rule on it, on the record, before the case ends. Section 924.051(1)(b) defines “preserved” to mean that an issue, legal argument, or objection “was timely raised before, and ruled on by, the trial court” and was “sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.”

That definition has three working parts:

1. Timely. The objection comes when the problem happens, not after the verdict.
2. Ruled on. The judge sustains it, overrules it, or denies the motion on the record.
3. Precise. The lawyer states the legal ground. A bare “objection” can preserve nothing when the ground is not obvious from context.

The consequence is written into section 924.051(3): “An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error.” A prejudicial error is one that “harmfully affected the judgment or sentence,” and under section 924.051(7) the defendant carries the burden of proving it. At The Brancato Law Firm, we treat those three words, timely, ruled on, and precise, as a checklist for every objection we make in front of a jury.

What do objections, proffers, and motions for judgment of acquittal do?

Each trial tool preserves a different kind of error, and each has its own timing. A lawyer who uses the wrong tool, or uses the right one too late, can lose the issue for good.

Objections to evidence

Section 90.104, Florida Statutes, allows reversal based on admitted evidence only when “a timely objection or motion to strike appears on the record, stating the specific ground of objection if the specific ground was not apparent from the context.” Hearsay, improper character evidence, and an officer’s opinion on guilt are common examples. If the defense lawyer says nothing, the jury hears the evidence and the appeals court usually will not review it.

Proffers of excluded evidence

A proffer is a short statement, or a question-and-answer session outside the jury’s presence, that shows the judge what a witness would have said. Section 90.104(1)(b) requires that “the substance of the evidence was made known to the court by offer of proof or was apparent from the context.” Without a proffer, the appeals court has no way to know whether keeping the evidence out mattered. The same statute adds a useful rule: when the judge makes a definitive pretrial ruling on the record, the lawyer does not need to renew the objection or proffer at trial.

Motions for judgment of acquittal

A motion for judgment of acquittal asks the judge to end the case because the State’s evidence cannot support a conviction. Florida Rule of Criminal Procedure 3.380 says the motion “must fully set forth the grounds on which it is based.” A one-line motion that names no missing element can leave a sufficiency claim unpreserved.

The Florida Supreme Court showed the cost in F.B. v. State, 852 So. 2d 226 (Fla. 2003). A child was found guilty of petit theft of items worth $100 to $300, yet the State offered no evidence of value. The defense never moved for acquittal on that ground. The Court held that a sufficiency claim generally must be preserved through a timely challenge in the trial court, with two narrow exceptions: death penalty cases and evidence that shows no crime was committed at all. It approved the decision that refused to reach the value argument. A 2015 article in the St. Thomas Law Review, Doin’ Time for an Unproven Crime, argues that this rule leaves some defendants convicted on records that never proved every element, which is exactly why our attorneys argue the specific missing element out loud before the jury deliberates.

Jury instruction objections

Jury instructions follow the contemporaneous objection rule. In State v. Delva, 575 So. 2d 643 (Fla. 1991), the trial judge did not tell the jury that the defendant had to know the package contained cocaine, and no one objected. The Florida Supreme Court held that instructions “are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred.” Because knowledge was not disputed at trial, the missing element was not fundamental error, and the Court quashed the lower appellate decision.

Sentencing errors

Florida Rule of Appellate Procedure 9.140(e) requires a sentencing error to be raised first in the trial court, either at the sentencing hearing or by a motion under Florida Rule of Criminal Procedure 3.800(b). Our firm reviews the scoresheet before the hearing so that a scoring mistake is corrected in the courtroom rather than argued for the first time on appeal.

What is fundamental error, and how often does it save an appeal?

Fundamental error is an error so serious that, in the words of Delva, it “reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Florida courts find it rarely. Florida Supreme Court Justice Jorge Labarga told trial lawyers at a June 2026 Florida Bar Convention program, as reported by The Florida Bar News, “Please object at trials,” adding that he had spent “half my life on the Supreme Court living in fundamental error land because someone doesn’t object.”

Preserved issues face long odds too. In a national study of 2010 state criminal appeals, the Bureau of Justice Statistics found that 81% of appeals reviewed on the merits were affirmed, and appellate courts reversed, remanded, or modified part of the trial court decision in 12% of all appeals. A defendant who also has to prove fundamental error starts from an even weaker position. Our attorneys at The Brancato Law Firm build the record at trial so that a client’s appeal can rest on the ordinary preserved-error standard.

How did Anady v. State change the rule on the reasonable doubt instruction?

Anady v. State, No. 1D2023-2811 (Fla. 1st DCA Dec. 23, 2025) (en banc), held that failing to read Florida Standard Jury Instruction 3.7, the instruction that defines reasonable doubt and the presumption of innocence, is not fundamental error by itself. Joseph Anady was tried in Escambia County on child sexual battery and related charges and received consecutive life sentences. Neither side objected at the charge conference when Instruction 3.7 was left out of the final instructions.

The full First District Court of Appeal affirmed. The majority pointed to the rest of the record: the judge defined reasonable doubt for the jury panel during jury selection, both lawyers repeated the State’s burden, and the final instructions told the jury nine times that the State had to prove each element beyond a reasonable doubt. The court receded from two of its own earlier decisions and certified conflict with four decisions from other district courts. One of them was Usry v. State, 284 So. 3d 1128 (Fla. 2d DCA 2019), a Pasco County second-degree murder case in which the Second District accepted the State’s concession that omitting a reasonable doubt instruction was fundamental error and ordered a new trial.

Where Anady stands now. The Florida Supreme Court accepted the case for review as No. SC2026-0105. Florida Law Weekly’s review-granted listing shows an order dated May 19, 2026, with oral argument to be set. As of this update, the Court has not ruled, and no Southern Reporter citation has been published for the First District’s opinion.

The lesson does not depend on how the Supreme Court rules. A concurring judge in Anady wrote that failing to get the presumption of innocence instruction, without a sound strategic reason, is ineffective assistance of counsel, but that claim could not be decided on direct appeal. A defendant whose lawyer stays silent may wait years for a postconviction ruling. Our attorneys read the written instructions at every charge conference, confirm Instruction 3.7 is included, and object on the record if it is not.

Does the State admitting a mistake guarantee a reversal?

No. Florida appeals courts decide preservation for themselves, even when the prosecutor concedes that the trial court erred.

Wasko v. State, No. 6D2025-0557 (Fla. 6th DCA July 31, 2026), is a short per curiam affirmance of a Hendry County judgment. The opinion does not describe the charge or the specific error raised. It affirms by quoting section 924.051: its definitions of “prejudicial error” and “preserved,” its rule that an appeal may not be taken unless a prejudicial error is alleged and properly preserved or, if not preserved, would be fundamental, and its rule that the appellant carries the burden.

The two cases Wasko cites explain the point. In I.R. v. State, 395 So. 3d 567 (Fla. 6th DCA 2024), a Polk County juvenile appealed a finding that he sent written threats. The State conceded the trial judge used the wrong intent standard, but the court refused to reach the issue because the defense had argued the opposite position at trial, stating, “we are not bound by such concessions.” In Conner v. State, 987 So. 2d 130 (Fla. 2d DCA 2008), a DUI manslaughter appeal, the Second District said it “has an independent obligation to ensure that an alleged prejudicial error was properly preserved,” even though the State never raised preservation. The same opinion shows both sides of the rule: the preserved objection to a graphic, irrelevant photograph won Conner a new trial, while his unpreserved complaint about a police investigator’s opinion testimony was never reviewed.

For a defendant in Hillsborough, Pinellas, or Pasco, Conner is the Second District’s own statement of the rule. Our firm does not rely on a prosecutor’s later concession to rescue an issue we could have preserved in the courtroom.

Can an unpreserved error still win an appeal?

Yes, but only when the error is fundamental. In Smith v. State, No. 6D2023-3417 (Fla. 6th DCA July 31, 2026), a Charlotte County probationer admitted one violation, unsupervised contact with a minor, and the State expressly dropped a second allegation of excessive intoxicant use. At sentencing months later, the judge mistakenly believed both violations had been admitted, revoked probation, and imposed 20 years in prison. Defense counsel did not object. The Sixth District held that revoking probation partly on a violation the State chose not to pursue was fundamental error, reversed, and sent the case back for a new hearing on the admitted violation alone. Our guide on how to fight a probation violation in Florida covers the hearing stage where an objection would have avoided the appeal.

What if your trial lawyer failed to object?

A missed objection is usually raised later, through a postconviction claim of ineffective assistance of counsel. In Anady, the concurring judge explained that, without fundamental error, an ineffective-assistance claim was not before the court on direct appeal. That claim normally goes in a motion under Florida Rule of Criminal Procedure 3.850, which generally must be filed within two years after the judgment and sentence become final.

To win, the defendant must show that the lawyer’s performance was deficient and that it prejudiced the outcome. That is a second trial-level fight, often years after the verdict. Our attorneys at The Brancato Law Firm would rather make the objection the first time than litigate its absence later.

What should you ask a Florida trial lawyer about preserving issues?

Ask how the lawyer protects the record before you sign a retainer. The answers show whether the lawyer tries cases with an appeal in mind.

Our firm also offers trial consulting and litigation support to other defense lawyers handling serious felony cases, and record-building is a central part of that trial planning.

How long do you have to file a notice of appeal in Florida?

A defendant generally has 30 days. Florida Rule of Appellate Procedure 9.140(b)(3) requires the notice of appeal to be filed “at any time between rendition of a final judgment and 30 days following rendition of a written order imposing sentence.” The clock runs from the written sentencing order, not the verdict.

Florida allows a belated appeal only in limited circumstances, so treat the 30-day deadline as fixed. For more about our defense strategies, visit our Hillsborough County Criminal Defense page.

Frequently asked questions

Can you appeal a Florida conviction if your lawyer never objected?

You can file the appeal, but the appeals court will review an unpreserved issue only if it is fundamental error. The Brancato Law Firm reviews the trial transcript issue by issue to separate preserved claims, possible fundamental errors, and ineffective-assistance claims that belong in a Rule 3.850 motion.

Does a motion in limine ruling preserve an objection in Florida?

Yes, if the judge makes a definitive ruling on the record, section 90.104(1) says the objection does not need to be renewed at trial. Our attorneys at The Brancato Law Firm press for a clear, final ruling and still object at trial when a ruling is tentative, as we explain in our post on the Williams rule in sex crimes cases.

Can you appeal after pleading guilty or no contest in Florida?

Only in narrow situations. Section 924.051(4) bars an appeal after a guilty or no contest plea unless the defendant expressly reserved the right to appeal a legally dispositive issue, and Rule 9.140(b)(2)(A) lists the few other issues that can be raised. Before any client of The Brancato Law Firm enters a plea after losing a suppression motion, we discuss whether the issue is dispositive and can be reserved.

Is leaving out the reasonable doubt instruction fundamental error in Florida?

The district courts disagree, and the Florida Supreme Court is reviewing the question in Anady. The Brancato Law Firm avoids the question entirely by confirming Standard Jury Instruction 3.7 is in the final charge and objecting on the record if it is missing.

How can you tell whether your trial lawyer preserved issues for appeal?

Read the transcript for three things: a stated legal ground, a ruling from the judge, and, for excluded evidence, a proffer. A trial attorney at The Brancato Law Firm can review the record with you, and our Hillsborough County criminal defense attorney page explains how we handle trials in the 13th Judicial Circuit.

Can errors the jury never heard about be raised after trial?

Some can, through a motion for new trial or a Rule 3.850 motion, when the facts were not in the trial record. The Brancato Law Firm has written about one example, challenging jailhouse informant testimony in Florida, where undisclosed deals can surface only after the verdict.

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 Florida trial lawyer before the deadline runs

Thirty days after the written sentence is all the time Florida gives to file a notice of appeal, and the record that appeal depends on is made at trial, objection by objection. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. Our attorneys will review where your case stands, what has been preserved, and what still has to be done in the trial court.

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.