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.

To convict anyone of resisting without violence, a Florida prosecutor must prove the officer was acting lawfully and that the accused actually obstructed that duty. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former police academy instructor who taught criminal procedure, I know what officers are trained to write in a resisting report, and I have spent more than 25 years in Hillsborough County courtrooms. Our attorneys use that knowledge every week to test both elements.

What Does the State Have to Prove for Resisting Without Violence?

Two things — and both are genuinely contestable. Under Section 843.02, Florida Statutes, and as the Florida Supreme Court framed it in C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009), a juvenile case about a teenager who ran from officers, the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant’s action — by words, conduct, or a combination — constituted obstruction or resistance of that lawful duty.

Both elements have teeth. If the stop or detention wasn’t lawful at the moment the alleged resistance happened, element one fails — and that fight doesn’t end if a pretrial motion to suppress is denied, because the lawfulness of the officer’s duty is an element the State must still prove at trial. Losing the suppression motion means the jury hears the evidence; it does not take the defense away. And not everything that annoys an officer is “obstruction” — element two requires actual resistance, not confusion, fear, or a few seconds of hesitation. Our attorneys attack both in Hillsborough, Pinellas, and Pasco County courtrooms:

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

What Are the Penalties for Resisting Without Violence?

Up to one year in jail, twelve months of probation, and a fine — because it is a first-degree misdemeanor. That’s the same maximum as a battery or possession of 20 grams or less of cannabis, for conduct that is often nothing more than a chaotic few seconds during someone else’s bad night. A conviction also puts a “resisting” offense on a permanent record that employers and licensing boards read as fighting with police — which is exactly why we fight these charges instead of pleading them out by default. And the felony version is always lurking: resisting an officer with violence is a felony, and prosecutors sometimes charge up first and negotiate down later.

What Is the Difference Between Resisting With and Without Violence?

Violence toward the officer — and it is the difference between a misdemeanor and a felony. Under Section 843.01, Florida Statutes, whoever knowingly and willfully resists an officer “by offering or doing violence to the person of such officer” commits a felony of the third degree — up to five years in prison. Without violence, the same resistance is the first-degree misdemeanor discussed in this article.

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

The line between the two is contested in real cases constantly: tensing an arm, pulling away, or stumbling during a chaotic arrest gets written up as “violence” in reports more often than you would think. When our attorneys see a felony resisting charge, the first fight is usually over that word — because reducing § 843.01 to § 843.02 takes a felony off the table entirely. Our Tampa violent crime lawyer page covers how we defend the felony charge.

Why Do Resisting Charges Get Added to Other Charges?

Because resisting is the easiest charge to write — it requires no victim, no property, and no evidence beyond the officer’s own account of the encounter. In Tampa Bay arrest paperwork, we routinely see it stacked on top of the charge that started the encounter, and sometimes it is the only charge left standing when the original suspicion fizzles: the search comes up empty or the battery call falls apart, but the arrest still happened, so the report says the person “resisted.”

September 2026 update: Resisting without violence is most often paired with disorderly conduct, and the two charges frequently fail together: if the underlying disorderly conduct arrest was unlawful because the officer saw only protected speech or did not witness the conduct, the officer was not engaged in the lawful execution of a legal duty. Our fully rewritten guide, Is Disorderly Conduct a Crime in Florida, and Can You Be Arrested Just for Yelling?, covers the Second District’s leading disorderly conduct decision and the 2024–2026 cases on arrests made outside the officer’s presence.

That pattern is also where the defense leverage lives. A resisting count that depends entirely on an unlawful stop collapses with the stop. A count built on a few chaotic seconds collapses against the video. And stacked counts collapse under the double jeopardy rule discussed below. Our firm treats an add-on resisting charge as a signal to scrutinize the whole encounter — because if the resisting count is weak, the rest of the report deserves the same skepticism.

What Counts as Resisting an Officer Without Violence?

Real obstruction of a lawful police duty — classic examples include refusing lawful commands during a valid stop, physically pulling away from a lawful arrest, or giving false identifying information during a lawful detention.

Running from the police can qualify too, and the leading case is worth knowing. In C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009), a teenager in a high-crime area took off running the moment he saw officers, and kept running after they ordered him to stop. The Florida Supreme Court held that his flight was resisting without violence — because his own unprovoked, headlong flight in that setting gave the officers reasonable suspicion to stop him, which made their order to stop a lawful command he then defied. But C.E.L. cuts both ways, and it sets two limits the State must satisfy: the person must know the officer intends to detain them, and the officer must be legally justified in the stop at the moment the command is given. Walking away from an officer who has no lawful basis to detain you is not a crime.

Notice what all of those examples share: a lawful police command plus a real act of defiance. In our experience reviewing Tampa Bay arrest reports, plenty of resisting charges are missing one or both — the “command” was never lawful, or the “resistance” was a scared person freezing.

When Is It NOT Resisting? A 13-Year-Old’s Case Was Just Thrown Out

Hesitating for a few seconds is not a crime — a Florida appellate court said so this month. In E.Y., a Child v. State, No. 4D2025-2551 (Fla. 4th DCA Aug. 19, 2026), officers responding to a call about a girl suspected of battering her mother approached a 13-year-old, and an officer yelled “come here!” The child, within a few seconds, stopped walking and started crying. The appellate court held she was entitled to a judgment of dismissal on the resisting charge — because a momentary pause followed by compliance is not obstruction of a legal duty.

That case is worth sitting with, because it is how these charges actually happen: a tense scene, a shouted command, a frightened kid or adult who doesn’t respond instantly, and a charge that treats fear as defiance. When our attorneys defend a resisting case, the first question is always the same — what exactly did our client do, second by second? The answer, surprisingly often, is: nothing the law recognizes as resistance.

Can You Legally Resist an Unlawful Arrest in Florida?

Yes — as long as you use no force or violence at all. This surprises almost everyone, but it has been Florida law for generations: as the Second District — the appellate court for Hillsborough, Pinellas, and Pasco Counties — put it in Lobb v. State, 290 So. 3d 591 (Fla. 2d DCA 2020), a Lee County case, “[i]f an arrest is not lawful, then a defendant cannot be guilty of resisting it . . . the common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence.” In Lobb itself, the court threw out a resisting conviction because the deputy had no lawful basis to take the defendant into protective custody under the Marchman Act in the first place.

The flip side is just as firm: you may not use force. Under Section 776.051(1), Florida Statutes, a person is not justified in using or threatening force to resist an arrest or detention by a law enforcement officer who is acting in good faith and is known, or reasonably appears, to be an officer, even if the arrest is later found to be unlawful. The moment resistance becomes physical force against the officer, the legality of the arrest stops being a defense to that force, and a felony charge is on the table.

Our attorneys give every client the same practical advice: this is a courtroom right, not a street tactic. Comply calmly, say nothing about the incident, and let us litigate the lawfulness of the arrest afterward — where the right actually wins cases, the way it did in Lobb.

Can You Be Charged With Resisting Twice for One Incident?

Not when the resistance was one continuous act — even if several officers were involved. In K.B., a Child v. State, No. 5D2025-1370 (Fla. 5th DCA Aug. 21, 2026), a student resisted two school officers trying to take her vape device, kept resisting after being handcuffed, and was charged with two counts of resisting — one per officer. The Fifth District reversed one of them: her “continuing resistance to an arrest can amount to a single act of resistance, even if several officers are involved in the effort,” and charging it twice violated double jeopardy.

The court applied a five-factor test to decide whether resistance is one act or several:

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

In K.B., the location stayed the same, nothing intervened, and the child’s intent never changed — so it was one act, charged once. The court also confirmed that a double jeopardy violation is fundamental error, meaning it can be raised for the first time on appeal. When our firm reviews a case with stacked resisting counts — and multiple counts are common whenever several officers respond — this test is the first thing we run.

How Our Attorneys Defend a Resisting Without Violence Charge

By litigating it like the constitutional case it usually is, not the throwaway misdemeanor it looks like. The pattern that wins these cases:

1. Reconstruct the encounter second by second. Body camera, dash camera, school and business surveillance, and witness phones — matched against the report’s timeline. The E.Y. case turned on a few seconds.
2. Test the lawfulness of the duty. Was there reasonable suspicion for the stop, a lawful basis for the detention, a valid arrest? If not, element one fails — and a motion to suppress or dismiss follows.
3. Isolate the actual “act” of resistance. Fear, hesitation, questions, and reflexive movement are not obstruction. We make the State name the act — precisely — and then measure it against the video.
4. Run the double jeopardy test on stacked counts. One continuous episode is one charge, no matter how many officers responded.
5. Protect the record. Where the case resolves, we fight for outcomes that preserve eligibility to seal the record — because “resisting an officer” is a phrase no background check reads charitably.

That last point matters beyond the courtroom: a resisting case handled well ends quietly, and one handled carelessly follows a client for decades. It is also why these cases deserve real defense attention even though they are “only” misdemeanors — in our Hillsborough County practice, the resisting count is often the most winnable charge on the arrest affidavit.

What Should You Do After a Resisting Arrest in Tampa Bay?

Say nothing about the incident, and get the paper fast. Three things matter in the first days:

1. Don’t explain yourself to anyone but your lawyer. “I only pulled away because…” is a confession to element two.
2. Preserve the video. Body cameras, school cameras, and bystander phones decide these cases — the E.Y. facts were won on what actually happened, second by second. Video gets overwritten; preservation letters need to go out early.
3. Have counsel test both elements before any plea. Whether the stop was lawful and whether the conduct was truly resistance are legal questions — the kind our attorneys resolve in motions, not at sentencing.

Call The Brancato Law Firm at (813) 727-7159. You can call us at any hour.

Frequently Asked Questions: Resisting Without Violence in Florida

Is resisting an officer without violence a felony in Florida?

No — it is a first-degree misdemeanor under § 843.02, Fla. Stat., punishable by up to a year in jail. Resisting an officer with violence is a separate felony offense. In our Tampa Bay cases, we regularly see the line between the two contested — and it matters enormously.

Can I be convicted of resisting if the stop was illegal?

Generally no — the State must prove the officer was in the lawful execution of a legal duty when the alleged resistance occurred. But timing matters: under C.E.L. v. State, flight itself can sometimes create the suspicion that makes a later command lawful. Our attorneys analyze the lawfulness of the encounter moment by moment.

Is running from the police a crime in Florida?

It can be — defying a lawful order to stop is resisting without violence, and unprovoked flight in a high-crime area can itself justify the stop under C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009). But the person must know the officer intends to detain them, and the order must be lawful when given.

Can a resisting without violence charge be dropped?

Yes — these charges get dismissed or reduced regularly, especially where the stop was unlawful, the “resistance” was momentary hesitation, or counts were stacked from a single episode. The Brancato Law Firm challenges both elements and, where the record supports it, moves for dismissal before trial.

My child was arrested at school for resisting — what happens now?

The case goes to juvenile delinquency court, and the recent appellate decisions in E.Y. and K.B. — both juvenile cases — show how vulnerable these charges are to challenge. In our juvenile cases, we also work to keep school-based incidents from becoming lasting records.

Can a resisting without violence case be sealed in Florida?

Often, yes — the outcome of the case controls eligibility, which is exactly why the resolution matters as much as the verdict. A dismissal, a dropped charge, or in many cases a withhold of adjudication can preserve the ability to seal or expunge the record, while a conviction generally cannot. Our firm handles record sealing and expungement, and we negotiate resisting cases with that endgame in view from day one.

Do I need a lawyer for a misdemeanor resisting charge?

Yes — a resisting conviction reads like “fought with police” to every future employer, landlord, and licensing board, and the charge is often the most defensible count on the arrest report. The attorneys of The Brancato Law Firm, P.A. handle these cases throughout Hillsborough, Pinellas, and Pasco Counties. Call (813) 727-7159 for a free, confidential consultation.

For more about our defense strategies, visit our Tampa Violent Crime Lawyer page.

Related reading: Teen Takeover Arrests in Tampa Bay: What Every Parent Needs to Know · What to Do After Being Arrested in Tampa, Florida · How Does a Bond Hearing Work in Tampa? · The Criminal Court Process in Hillsborough County

Charged With Resisting in Tampa Bay? The Video Won’t Wait

Body camera and surveillance footage — the evidence that wins these cases — starts disappearing within weeks of an arrest. If you or your child is facing a resisting 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 before the recordings are gone. 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.

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.

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.

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 Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. Today our attorneys defend probation violation cases in Hillsborough, Pinellas, and Pasco Counties, where the hearing moves fast and the judge decides the case without a jury.

What happens after a probation violation arrest in Hillsborough County?

Most people arrested on a violation of probation (VOP) in Hillsborough County stay in jail until they see the judge who handles the violation. Under the 13th Circuit’s 2026 bond schedule, Administrative Order S-2025-063, a VOP warrant that is silent about bond means no bond until the person’s next appearance before the assigned judge. The same order bars release before first appearance for anyone on probation who is arrested for a new felony.

The case then goes to one of two places. Under Administrative Order S-2024-062, technical violations and new misdemeanor violations go to Circuit Criminal Division “K,” which handles probation and community control violations. A violation based on a new felony charge goes back to the standard felony division where the case was last pending.

Speed matters. Administrative Order S-2024-062 requires the clerk to set the first revocation hearing for a jailed defendant no later than seven working days after arrest. Bond requests on a VOP go to the judge assigned to the violation and are not heard at first appearance without that judge’s agreement. Our Hillsborough County criminal defense attorneys handle these bond requests and violation hearings.

Can a violent felony offender of special concern get a bond on a VOP?

No, unless the only alleged violation is a failure to pay costs, fines, or restitution. Under section 948.06(8), Florida Statutes, a probationer who is a “violent felony offender of special concern” (VFOSC) “shall not be released and shall not be admitted to bail” and must be brought before the judge who granted the probation. Our attorneys at The Brancato Law Firm check the VFOSC label first, because it controls both the bond and the sentence.

The label depends on the offense and the person’s record, not on how serious the new allegation sounds. A person qualifies if the probation is for a listed “qualifying offense,” if the person has a prior conviction for one, if the alleged violation is a new qualifying offense, or if the person was previously found to be a habitual violent felony offender, three-time violent felony offender, or sexual predator and commits a qualifying offense. The list includes murder, manslaughter, aggravated battery, sexual battery, lewd or lascivious offenses, robbery, carjacking, home invasion robbery, kidnapping, and sexual performance by a child, among others.

The danger finding is where the defense has room to work. The statute tells the judge to weigh the nature of the violation, the person’s present conduct, the person’s amenability to non-prison sanctions based on past supervision, and the weight of the evidence. The Brancato Law Firm builds that record with treatment providers, employers, and the probation officer’s own notes so the judge has a written basis to find no danger.

What does the State have to prove at a Florida VOP hearing?

The State must prove that you violated a condition of probation, and that the violation was both willful and substantial, by the greater weight of the evidence. That standard is lower than “beyond a reasonable doubt,” but it is still the State’s burden.

The Florida Supreme Court set the rule in State v. Carter, 835 So. 2d 259 (Fla. 2002): “Trial courts must consider each violation on a case-by-case basis for a determination of whether, under the facts and circumstances, a particular violation is willful and substantial and is supported by the greater weight of the evidence.” Even one missed report can support revocation if it meets that test, and a minor slip may not.

The Second District Court of Appeal, which hears appeals from Hillsborough, Pinellas, and Pasco Counties, enforces that burden. In Weaver v. State, 335 So. 3d 774 (Fla. 2d DCA 2022), a Pasco County case, the court reversed because the officer’s testimony that Weaver was “non-reporting” did not prove willfulness. The court stressed that “the burden is not on Weaver to establish that he made a good faith effort.” In Smith v. State, No. 2D2025-1715 (Fla. 2d DCA Sept. 18, 2026), the court reversed a curfew violation and ordered probation reinstated because nothing showed Smith could have heard officers knocking at 10:25 p.m.

A VOP hearing works differently from a criminal trial:

That last point comes from Edwards v. State, No. 2D2025-1190 (Fla. 2d DCA Apr. 22, 2026). Admitting a violation waives the State’s burden of proof, so the decision to admit should come only after reviewing the evidence.

Can probation be revoked on hearsay alone in Florida?

No. Hearsay is admissible at a VOP hearing, but it cannot be the only evidence of a violation. In Russell v. State, 982 So. 2d 642 (Fla. 2008), the Florida Supreme Court held that hearsay “may not form the sole basis for revocation” and “must be supported by non-hearsay evidence.” The nonhearsay evidence does not have to prove every element by itself. It has to corroborate the hearsay.

Hearsay is a statement made outside the courtroom that is offered to prove it is true. At VOP hearings, the most common hearsay is a probation officer testifying about what is in a police report, a lab report, or a phone call.

In Marcus, the Second District put it plainly: “While the State can rely on hearsay evidence to prove a violation, it cannot rely on hearsay alone.” The court ordered Marcus discharged.

What did the court decide in Marshall v. State?

In Marshall v. State, No. 5D2025-3795 (Fla. 5th DCA Oct. 5, 2026), the Fifth District reversed a revocation because the only proof of the violation was an arrest affidavit and paperwork based on it.

Shane Marshall was on probation in Volusia County for misdemeanor battery and criminal mischief. One special condition barred any contact with the victim. On June 26, 2025, at his monthly report, his probation officer asked whether he had any contact with the victim or her family. Marshall said no. Three days later, police arrested him on new charges involving the same victim.

The probation officer read the arrest affidavit and filed a violation affidavit. He alleged that Marshall broke the no-contact condition and also broke Condition 9 of the standard probation order, which requires a probationer to “promptly and truthfully answer all inquiries directed to you by the court or the officer.” The officer had no personal knowledge of any contact. At the hearing, Marshall declined to answer questions about the new charges on his lawyer’s advice and testified that he did not recall the contact. The trial judge said that “once he takes the Fifth Amendment, the violation regarding the contact has been proven” and revoked his probation.

The Fifth District reversed on both conditions:

• The truthfulness condition. Marshall’s denial came three days before the contact allegedly happened, so the court held that “no evidence” supported the finding that his statement to the officer was false.
• The no-contact condition. The court held that the violation affidavit, the violation report, and the arrest affidavit were all hearsay. “Thus, the violation was only supported by hearsay evidence and not supported by competent substantial evidence.”

The appellate court did not decide whether the trial judge was wrong to treat Marshall’s silence as proof. It did not need to, because the State’s evidence failed on its own. The court also noted that the State may file a second violation affidavit on the same incident if the tolled probation term has not expired, following Cote v. State, 278 So. 3d 320 (Fla. 5th DCA 2019).

Marshall binds trial courts in Hillsborough, Pinellas, and Pasco Counties. Under Pardo v. State, 596 So. 2d 665 (Fla. 1992), a district court decision binds every Florida trial court when no other district disagrees, and the Second District’s hearsay cases point the same way.

The lesson is practical. When a VOP rests on a new arrest, the State usually has to bring a witness who saw or heard something, such as the alleged victim or the arresting officer. In no-contact cases that arise from domestic disputes, the alleged victim does not always cooperate with the State. Our Tampa domestic violence defense attorney page explains how the new charge itself is defended.

Do you have to testify at your own probation violation hearing?

Not about a new crime. Florida probationers have only a “qualified” privilege against self-incrimination at a VOP hearing, and its scope depends on the question.

• Questions about supervision. In State v. Heath, 343 So. 2d 13 (Fla. 1977), the Florida Supreme Court held that a probationer may be required to confirm where he was at a particular time and to explain noncriminal conduct, and that refusing may itself be grounds for revocation. In State v. Mangam, 343 So. 2d 599 (Fla. 1977), the court allowed a judge to infer a residence violation from the probationer’s silence.
• Questions about a separate crime. Heath also held that the privilege still applies to “specific conduct and circumstances concerning a separate criminal offense.” A probationer facing a new charge can decline to testify about it.
• Answers forced by threat of revocation. Under Minnesota v. Murphy, 465 U.S. 420 (1984), if the State threatens revocation to force incriminating answers, those answers cannot be used in a criminal prosecution.

No Florida appellate court has squarely held that a judge may never consider a probationer’s refusal to testify about a pending new charge. Whether to testify is a strategic decision. Anything you say at the VOP hearing can be used against you in the new criminal case, so our attorneys decide that question with each client after reviewing what evidence the State can actually present.

Does a new arrest automatically violate probation in Florida?

No. An arrest is not proof of a violation. Under § 948.03(1)(e), a conviction is not required to find a violation of the “live without violating any law” condition, but the State must still prove by the greater weight of the evidence that you committed the new offense.

In Contreras v. State, 274 So. 3d 532 (Fla. 2d DCA 2019), the Second District held that “it is improper to revoke probation solely on proof that the probationer has been arrested.” The reverse is also true: an acquittal on the new charge does not automatically end the VOP, as Bones v. State, 764 So. 2d 888 (Fla. 4th DCA 2000), held.

If you are on probation and learn you are under investigation for something new, call a lawyer before you talk to police or your probation officer. Our pre-file advocacy work starts before an arrest or a violation affidavit exists.

What defenses can beat a violation of probation?

The strongest VOP defenses attack either the State’s proof or the court’s power to act. These are the defenses our attorneys evaluate in every case:

Two of these defenses changed over time, and many websites still state them wrong.

First, timing. The probation term is now tolled once the State files a violation affidavit and a warrant issues, an officer makes a warrantless arrest, or a notice to appear is issued, under § 948.06(1)(g). Older cases required both an affidavit and a warrant before the term ended. The question in every expiration defense is whether one of those steps happened in time. In Minninger v. State, 517 So. 2d 758 (Fla. 2d DCA 1987), a new criminal information filed during probation was not enough to start the violation process.

Second, inability to pay. Section 948.06(5) still says a probationer must prove inability to pay by clear and convincing evidence. The Florida Supreme Court held that heightened burden unconstitutional in Del Valle, and the State must first present evidence that you had the ability to pay.

Disputes about conditions that appear in the written order but were never announced in court come up often. We covered one in Florida Sex-Related Probation Conflict Explained.

A condition also has to be clear enough to follow. In White v. State, No. 5D2023-3166 (Fla. 5th DCA July 31, 2026), a Brevard County probationer’s no-contact condition referred to a No Contact List that was mentioned at sentencing but never given to him. The Fifth District sent the case back so the trial court could disclose the list and revise the condition, because expecting compliance without knowing who is on the list “creates a risk of inadvertent violations.” When our attorneys review a probation order, we make sure every no-contact condition names the people it covers, so a client is never violated for contact with someone they did not know was off limits.

What sentence can a judge impose if probation is revoked?

If the judge revokes probation, the judge can impose any sentence that could have been imposed originally, under § 948.06(2). For a felony, that means anything up to the statutory maximum. The judge can also modify probation by adding conditions, or continue it.

The judge may weigh only the violations you admitted or the State proved. In Smith v. State, No. 6D2023-3417 (Fla. 6th DCA July 31, 2026), a probationer was accused of two violations: unsupervised contact with a minor and excessive use of intoxicants. He admitted the first, the State dropped the second, and the judge said it would not consider it. Months later at sentencing, the judge mistakenly treated both as admitted and imposed 20 years in prison. The Sixth District held that relying on a violation that was never admitted, proven, or pursued is fundamental error, reversed even though defense counsel never objected, and ordered a new hearing based only on the admitted violation. Our attorneys put the exact scope of any admission on the record when it is entered and object at sentencing if the court drifts beyond it.

The stakes are real across Florida. Florida had 187,410 adults on probation at the end of 2023, according to the Bureau of Justice Statistics. A report prepared for the Florida Department of Corrections by the Crime and Justice Institute (Improving Outcomes and Safely Reducing Revocations from Community Supervision in Florida, 2022) found that technical violations made up 54% of all revocations in 2019, and that nearly one in three revocations resulted in state prison. The same report listed the 13th Circuit among the circuits whose revocation rate was higher in 2019 than in 2010.

Several limits and alternatives apply:

• Youthful offenders. Under § 958.14, a youthful offender cannot be committed for more than 6 years on a technical violation, as Dunbar v. State, 664 So. 2d 1093 (Fla. 2d DCA 1995), applied. A substantive violation removes that cap. See our guide to youthful offender sentencing in Florida.
• Alternative sanctions in Hillsborough. Under Administrative Order S-2024-032, eligible probationers with technical violations can accept sanctions such as extra reporting, curfew, or treatment instead of a hearing. New law violations, absconders, no-contact violations, and people with three or more prior violations are excluded.
• Scoresheet and departure. A VOP sentence is scored on a new scoresheet. A sentence below that scoresheet requires a valid departure ground, which we explain in how to get a downward departure in Florida.

Why act in the first week after a probation violation arrest?

The first week decides whether you wait in jail and whether your defense is ready. In Hillsborough, the first revocation hearing must be set within seven working days of arrest for a jailed probationer, and bond goes through the judge assigned to the violation, not the first appearance judge.

In that first week, our attorneys:

1. Get the violation affidavit and violation report, and identify what the State’s evidence is.
2. Check the dates: when probation was set to end, and when the affidavit, warrant, arrest, or notice to appear happened.
3. Determine whether the case belongs in Division “K” or the standard division, and request a bond hearing from the right judge.
4. Find out whether the State has any live witness or only paperwork.
5. Advise you on whether to talk to your probation officer and whether to testify, especially if a new charge is pending.

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

Frequently asked questions about probation violations

Can my probation officer violate me for lying if I answered before the incident happened?

No. In Marshall v. State (Fla. 5th DCA 2026), a denial made three days before the alleged contact could not be proven false, so the truthfulness violation was reversed. The Brancato Law Firm lines up the dates of every probation officer interview against the dates of the alleged conduct before the hearing.

Can I be violated for a new arrest if the charges get dropped?

Yes, it is possible, but the State still has to prove you committed the new offense. A dropped charge does not end the VOP, yet an arrest alone is not enough under Contreras. At The Brancato Law Firm, we press the State to produce a live witness instead of the arrest report.

Will I get a bond on a violation of probation in Hillsborough County?

It depends on the warrant and your record. A VOP warrant that is silent about bond means no bond until you see the assigned judge under Administrative Order S-2025-063, and violent felony offenders of special concern cannot get bond before a hearing on a felony probation violation. Our attorneys at The Brancato Law Firm file bond requests with the judge assigned to the violation, because VOP bond requests generally are not heard at first appearance.

If I take the Fifth at my VOP hearing, can the judge hold it against me?

It depends on the question. A judge may draw an inference from silence about supervision matters such as where you live, but the privilege still protects you from testifying about a separate criminal offense. The Brancato Law Firm decides with each client whether testifying helps, because anything said at the VOP hearing can be used in the new case.

Can my probation be revoked for not paying fines I cannot afford?

Not if the failure to pay was not willful. Under Del Valle v. State, the judge must inquire into your ability to pay and find willfulness by the greater weight of the evidence. Our team at The Brancato Law Firm documents income, expenses, and job searches so the judge sees the full financial picture.

Can a violation of probation be dropped or dismissed in Florida?

Yes. The judge can dismiss the affidavit, the State can withdraw it, and a violation filed after probation expired must be dismissed for lack of jurisdiction. The Brancato Law Firm checks the tolling dates and the strength of the State’s witnesses first, because either one can end the case.

What happens if the appeals court reverses my revocation?

The revocation is vacated, and what happens next depends on the ruling. In Smith v. State (Fla. 2d DCA 2026), the court ordered probation reinstated, while in Marshall the court allowed the State to refile if the tolled probation term had not expired. Our attorneys at The Brancato Law Firm build the hearing record with a possible appeal in mind.

Does probation stop running while a violation is pending?

Yes. Under § 948.06(1)(g), probation is tolled once an affidavit is filed and a warrant issues, a warrantless arrest occurs, or a notice to appear is issued, and it stays tolled until the judge rules. The Brancato Law Firm pushes for a prompt hearing so a client does not sit in limbo on a weak affidavit.

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 criminal defense attorney about your probation violation

If you or a family member has been arrested or received a notice to appear for a violation of probation, the attorneys of The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, can review the affidavit, the dates, and the State’s evidence right away. Call (813) 727-7159. In Hillsborough, a jailed probationer’s first hearing is set within seven working days, so the time to prepare is now.

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.

Porch cases are usually won or lost on the photographs, long before a jury hears anything about intent. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and I learned that over more than 25 years in Hillsborough County courtrooms, including as a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. Our attorneys examine the scene, the roofline, and every photo the State intends to use before deciding how to fight a porch burglary charge.

Is a Porch Part of a Dwelling Under Florida Law?

Yes, if the porch is attached. Section 810.011(2), Florida Statutes, defines a “dwelling” as “a building or conveyance of any kind, including any attached porch,” that “has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.” The same section defines a “structure” as any roofed building “together with the curtilage thereof.”

The statute does not define “attached porch,” so Florida courts decide each case from its photographs and testimony. The key questions are whether the area shares the home’s roof, whether it touches an entrance, whether it is physically set apart from the yard, and whether the residents use it as part of their living space. Burglary is defined in section 810.02, Florida Statutes, as entering a dwelling, structure, or conveyance with intent to commit an offense inside, unless the premises are open to the public or the person was invited.

What Happened in Krasner v. State?

The Fourth District Court of Appeal held that a covered front porch was part of the dwelling and affirmed a package thief’s burglary conviction. In Krasner v. State, No. 4D2024-0355 (Fla. 4th DCA June 11, 2025), Jennifer Liza Krasner was charged with burglary of an occupied dwelling after she took delivered packages from the front of the victims’ home.

The jury convicted her of a lesser offense, burglary of an unoccupied structure. On appeal she argued the area was not a porch at all. The court rejected that argument, describing the area this way: it “is covered by the same roof that covers the rest of the house,” it “is adjacent to and touching the front door,” and it held several of the residents’ belongings, “including a ‘welcome’ rug.” The court concluded, “In short, the area constitutes a porch.”

The court also rejected Krasner’s claim to a twelve-person jury, following its earlier decision that six-person juries are constitutional in non-capital cases. It remanded only to fix two clerical errors in the judgment, which listed the wrong offense and said she pleaded guilty when she went to trial. At the time of this update the opinion had not been assigned a Southern Reporter citation.

When Is a Porch Not Part of a Dwelling in Florida?

A porch-like area that is open to the street, uncovered, or unconnected to an entrance usually is not part of a dwelling. The Krasner court compared two lines of cases:

• Not a porch: In Colbert v. State, 78 So. 3d 111 (Fla. 1st DCA 2012), a man took a bicycle from a mulch area beside a townhouse’s concrete entry pad. The First District held the area, “both visually and physically open to the general public,” was “not a logical extension of one’s dwelling in a way that comports with the concept of an ‘attached porch.'”
• A porch: In Morlas v. State, 211 So. 3d 286 (Fla. 4th DCA 2017), men tried to break into a home and entered only an elevated, cemented front patio. The Fourth District held the patio was an “attached porch” because it was “directly adjacent to and touching the home,” it “shares a common roof with the home,” and the homeowner kept personal items there.

The curtilage rule adds another limit. In State v. Hamilton, 660 So. 2d 1038 (Fla. 1995), two men took boat motors from an unfenced backyard, and the homeowner shot and killed one of them. The Florida Supreme Court held that the yard around a home counts as “curtilage” only if there is “some form of an enclosure,” and it reversed the surviving man’s burglary and felony murder convictions because the yard was open.

The table reflects the factors Florida courts have used; no single factor controls. Our attorneys at The Brancato Law Firm photograph the property ourselves, because the State’s photos are usually taken to make the area look as enclosed as possible.

Why Did the Legislature Add “Attached Porch” to the Burglary Statute?

The Legislature added “attached porch” to the dwelling definition in 1996, after Hamilton made the boundaries of burglary a live issue. A Florida Senate Criminal Justice Committee staff analysis of CS/SB 590 (February 18, 1998) explains that the 1996 changes responded to the Hamilton decision, and it quotes the court’s observation that a definition “is crucial to comprehending the full scope of the crime of burglary.”

That history matters for defense arguments. The porch language expanded burglary to a specific, named area, but it did not erase the line between a porch and an open yard. Courts still apply Hamilton’s enclosure requirement to curtilage, as the Fifth District did in J.L. v. State, 57 So. 3d 924 (Fla. 5th DCA 2011), a juvenile case in which a go-cart, a four-wheeler, and a skateboard leaning against the side of a house were held to be outside its curtilage.

What Are the Penalties for Porch Burglary in Florida?

Burglary of a dwelling without an assault, battery, or weapon is a second-degree felony punishable by up to 15 years in prison, whether or not anyone is home. That correction matters, because many websites say burglary of an occupied dwelling carries life. Under section 810.02, burglary becomes a first-degree felony punishable by life only if the offender commits an assault or battery, is or becomes armed with explosives or a dangerous weapon, uses a motor vehicle to damage the building, or causes more than $1,000 in damage.

The maximums come from section 775.082, Florida Statutes. Actual sentences depend on the Criminal Punishment Code scoresheet, the person’s prior record, and the facts of the case.

Is Stealing a Package From a Porch a Felony in Florida Even Without Burglary?

Often, yes. Since October 1, 2024, section 812.014(2)(d), Florida Statutes, makes theft of property “valued at $40 or more, but less than $750” a third-degree felony when it is “taken from a dwelling” or from the unenclosed curtilage of a dwelling. Before that change, the threshold was $100.

The Florida Senate’s summary of HB 549 (2024) also describes a second-degree felony for taking property from more than 20 dwellings or their curtilages, and a misdemeanor for property under $40 unless the person has prior theft convictions. In practice, prosecutors can charge a single package theft as felony theft, burglary, or both, so our attorneys look at the value evidence as closely as the porch itself.

How Common Are Burglary and Theft Arrests in Florida?

Florida law enforcement agencies made 12,584 burglary arrests and 46,565 larceny arrests statewide in 2020, according to FDLE’s Uniform Crime Report arrest tables, the most recent year FDLE published in that county format. Hillsborough County agencies made 2,766 larceny arrests that year.

Every one of those cases turns on facts like the ones in Krasner: where the property was, what it was worth, and whether the person entered a protected area. For a full breakdown of how burglary charges are built and defended, see our guide How to Fight a Burglary Charge in Florida.

How Do You Fight a Porch Burglary Charge in Florida?

The defense attacks the elements the State must prove: that the area is a dwelling or structure, that the person entered it, and that the person intended to commit a crime inside at the moment of entry. These are the arguments our attorneys raise most often:

1. The area is not an attached porch. Photos, measurements, and the roofline can show an open pad, walkway, or yard, as in Colbert.
2. The yard is not enclosed curtilage. Under Hamilton, an unfenced yard is not curtilage, so taking an item from it is not burglary.
3. No entry occurred. Reaching from a walkway or picking up an item at the edge of a step may not be an entry into the porch at all.
4. No intent at entry. A person who stepped onto a porch to knock or deliver something did not enter with intent to steal.
5. Identification. Doorbell video is often grainy or partial, and photo lineups can be suggestive.
6. Value. For felony theft from a dwelling, the State must prove the property was worth at least $40, with competent evidence of value.

Burglary and theft cases in Hillsborough County are prosecuted by the State Attorney’s Office for the 13th Judicial Circuit and heard at the courthouse on Twiggs Street, two blocks from our office. Our Hillsborough County criminal defense attorney page explains how felony cases move from first appearance to trial.

Frequently Asked Questions About Porch Burglary in Florida

Is a screened porch part of a dwelling for burglary in Florida?

Usually, yes, because a screened porch is typically attached, covered, and enclosed, which fits the “attached porch” language in section 810.011(2). The Brancato Law Firm still examines who had the right to occupy the porch, since a landlord or guest situation can change the analysis.

Can I be charged with burglary for taking a package from a front step with no roof?

It is harder for the State, because courts like the Colbert court have refused to treat open, uncovered areas as an attached porch. Our attorneys at The Brancato Law Firm use photographs and site measurements to show when a step or walkway is not part of the dwelling, though felony theft from the curtilage may still be charged.

Is burglary of an occupied dwelling a life felony in Florida?

No, not by itself. Burglary of an occupied dwelling is a second-degree felony punishable by up to 15 years, and it becomes a first-degree life felony only with an assault, battery, weapon, vehicle damage, or more than $1,000 in damage. The Brancato Law Firm reviews the charging document to make sure the degree matches the facts alleged.

What is the difference between burglary of a dwelling and burglary of a structure in Florida?

A dwelling is a building designed for people to sleep in at night, plus any attached porch, while a structure is any roofed building, such as a store or shed. The Brancato Law Firm often argues that an area is at most a structure or curtilage, which can lower the degree of the charge; see our burglary defense guide.

Can a porch burglary charge be reduced to trespass or petit theft in Florida?

Sometimes, if the evidence on entry, intent, or the nature of the area is weak. Our attorneys at The Brancato Law Firm negotiate reductions based on those weaknesses and take the case to trial when the State will not move; our trespass guide explains the lesser charge.

What should I do if police want to talk to me about a package theft in Tampa?

Decline to answer questions and call a defense attorney, because statements about where you stood or what you intended are often the State’s best evidence of entry and intent. The Brancato Law Firm offers representation before charges are filed for people contacted by detectives.

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

Talk to a Tampa Burglary Defense Attorney About the Porch in Your Case

Photographs of a porch, doorbell video, and the property itself can change within weeks, so the defense needs to document the scene early. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159, and our attorneys will review whether the area in your case is truly part of a dwelling. 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 and Haitian Creole speakers facing criminal charges.

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

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.

A Florida search warrant comes with a clock, and the date stamped on it can decide a case before anyone looks at the evidence. As a former police academy instructor, I trained officers on how to do things by the book, and as founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I have spent more than 25 years in Hillsborough County courtrooms holding them to it. Our attorneys compare the issuance date, the execution date, and the return on every warrant in every case, because a late search can end the prosecution.

What Is Florida’s 10-Day Search Warrant Rule?

The rule is a deadline set by statute. Under section 933.05, Florida Statutes, a search warrant “must be returned within 10 days after issuance, not including the date of issuance.” Courts read that return deadline as an execution deadline: police have to carry out the search within the same 10 days.

The deadline dates back to 1923, and Florida courts enforce it strictly. In Spera v. State, 467 So. 2d 329 (Fla. 2d DCA 1985), officers searched a home for drugs 13 days after the warrant issued and found cocaine. The Second District held that “a search warrant in Florida becomes stale ten days after its issuance” and that a stale warrant “requires suppression of any evidence seized as a consequence of the search.”

The 10-day rule still governs warrants for homes, cars, and most physical evidence. The Legislature has carved out longer periods for a few kinds of warrants:

What Happened in Moschella v. State?

In Moschella v. State, 413 So. 3d 851 (Fla. 2d DCA 2025), the Second District reversed a child pornography conviction because a forensic search warrant was executed weeks late. Detectives from the Manatee County Sheriff’s Office seized two phones, a tablet, and a laptop. A judge issued a warrant to search the devices on July 27, 2020, but the detective admitted the search did not happen until “sometime in September.”

James Moschella pleaded no contest and reserved the right to appeal the denial of his motion to suppress. The State stipulated that the suppression issue was dispositive, meaning the case could not go forward without the evidence. The trial court had denied suppression because the delay did not prejudice him.

The Second District disagreed. Quoting Spera, it said “the legislature has decided that ten days is a reasonable time,” and it refused to add a prejudice requirement to “the firmly established statutory time limit.” Because the State’s stipulation was binding, the court reversed the judgment and sentences and remanded for dismissal of the charges.

Moschella matters in Tampa Bay for a specific reason. The Second District Court of Appeal hears appeals from Hillsborough, Pinellas, and Pasco Counties, so its rulings bind the trial judges our clients appear before.

Did Florida Change the Search Warrant Rule for Phones and Computers?

Yes, twice. A 2025 law gave police 45 days to return a warrant for a computer or electronic device already in police possession. Then the Legislature passed CS/HB 359, signed June 26, 2026 and effective July 1, 2026 as chapter 2026-177, Laws of Florida. Under the current statute, a device warrant is “considered timely executed” if police seize the device within 10 days, the return is due within 365 days, and the agency does not have to finish its forensic analysis within the return period.

The House Criminal Justice Subcommittee’s staff analysis of HB 359 discussed Moschella directly, and the bill responds to the problem the case exposed: forensic exams of phones and computers take longer than 10 days.

The change does not make device warrants deadline-free. The device still has to be seized within 10 days of the warrant, and the return still has a deadline. It also leaves open which version of the statute applies to a warrant issued before July 1, 2026. Our attorneys check the issuance date against the version of section 933.05 in effect that day, and we raise Moschella wherever the older rule governed.

Why Do Warrant Deadlines Matter So Much in Child Pornography Cases?

They matter because these cases usually rest entirely on what a forensic examiner finds on a seized device. Under section 827.071, Florida Statutes, knowingly possessing child sexual abuse material is a second-degree felony, and each image, and each child in each image, is a separate offense. A single phone can produce dozens of counts, each punishable by up to 15 years in prison.

Federal numbers show how heavily these cases are prosecuted. The U.S. Sentencing Commission’s Quick Facts on child pornography offenses report that 1,432 people were sentenced for these offenses in federal court in fiscal year 2025, with an average sentence of 118 months. The Middle District of Florida, which includes Tampa, sentenced 70 of them, among the most of any district in the country.

When the search that found the files was invalid, the files cannot be used. That is why a warrant timing problem can end a case that looks unbeatable. Our Tampa internet crimes attorney team treats the warrant file as the first piece of evidence to examine.

How Do Defense Attorneys Find a Late Warrant?

They line up the dates in the paperwork. The warrant shows when a judge signed it. The return and inventory show when officers executed it and what they took. Forensic reports, property receipts, and lab request forms often show when the device search actually started. Moschella’s case turned on a detective’s admission at the suppression hearing, so depositions matter too.

Our attorneys check these points in every case involving a search warrant:

1. Issuance date. The day the judge signed the warrant, which starts the clock the next day.
2. Execution date. When officers searched the place or seized the device.
3. Return date. When the warrant and inventory went back to the court.
4. Forensic start date. When the examiner began the device search, from lab logs and reports.
5. Applicable statute. Which version of section 933.05 was in effect on the issuance date.

Do Other Warrant Problems Lead to Suppression?

Yes. A late warrant is only one of several grounds for a motion to suppress in a digital evidence case. A warrant may lack probable cause, describe the place or files too broadly, or be searched beyond its scope. In Smallwood v. State, 113 So. 3d 724 (Fla. 2013), a Jacksonville robbery case, the Florida Supreme Court held that police could take a phone during an arrest but needed a warrant before searching its data, and it ordered a new trial because the photos found on the phone should have been excluded.

Many child exploitation investigations begin before any warrant, with a tip from a tech company and a subpoena for account records. Our guide to a Google account legal request in Florida explains that stage. If you suspect an investigation, representation before charges are filed can keep you from consenting to a search that no warrant would have allowed.

How Soon Should You Talk to a Lawyer After a Device Seizure?

Talk to a lawyer right away, ideally before the forensic exam is finished. Dates and chain-of-custody records are easiest to pin down early, and a lawyer can demand the warrant, the return, and the lab paperwork through discovery and take depositions before memories fade. For the charges and sentencing exposure in these cases, see our pages on child pornography defense in Tampa and child pornography sentencing enhancements.

Frequently Asked Questions

Does a late search warrant always get a case dismissed in Florida?

No. A late warrant leads to suppression of the evidence from that search, and dismissal follows only when the State cannot prove the case without it, as happened when the State stipulated in Moschella. The Brancato Law Firm evaluates what evidence would remain after suppression before advising a client on a plea or trial, as explained on our Tampa sex crimes lawyer page.

Do I have to prove the delay hurt my case?

No. The Second District held in Moschella that a defendant does not have to show prejudice from a late warrant, because the Legislature already decided what a reasonable time is. Our attorneys at The Brancato Law Firm raise the deadline issue on its own terms rather than trying to show harm.

How many days do police have to search my phone under a warrant in Florida?

Under the current section 933.05, police must seize the phone within 10 days of the warrant, and the return is due within 365 days. The Brancato Law Firm checks whether an older version of the statute, with a shorter deadline, applied to your warrant, using the statute itself on Online Sunshine.

What is a dispositive plea, and why did it matter in Moschella?

A dispositive plea is a no contest plea that reserves the right to appeal a pretrial ruling the parties agree will decide the case, so a win on appeal ends in dismissal instead of a new trial. Our team at The Brancato Law Firm uses this tool when a suppression ruling is strong enough to carry an appeal.

Can child pornography charges be dropped in Florida?

Yes. Charges can be dropped or dismissed when key evidence is suppressed, when the State cannot prove the person knowingly possessed the files, or when the files were on a device others used. The Brancato Law Firm attacks each of those points, and our Tampa internet crime lawyer attorneys handle these cases in Hillsborough, Pinellas, and Pasco Counties.

Does the 10-day rule apply to search warrants for my house or car?

Yes. Warrants for homes, vehicles, and physical items still must be executed and returned within 10 days, as in Spera, where a home search on day 13 required suppression. The Brancato Law Firm reviews every warrant in a case, not only the device warrant, because one late search can taint the evidence that followed.

Talk to a Tampa Defense Attorney About a Search Warrant

The dates on a warrant do not change, but the chance to use them can slip away once a plea is entered. Our attorneys at The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will review every warrant, return, and forensic report in your case for timing and scope problems. 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 criminal defense in Spanish and Haitian Creole in Tampa.

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

When a judge rules on a suppression motion after a welfare check, the question is what the officers knew at the moment they crossed the threshold, and what they did after. I taught officers those rules as a former police academy instructor, and I have argued them for 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 challenge warrantless home entries in criminal cases across Hillsborough, Pinellas, and Pasco Counties.

What Happened in Case v. Montana?

William Case told his ex-girlfriend on the phone that he was going to kill himself. She heard a clicking sound like a gun being cocked, then “a pop” and silence, and she called 911. Three officers were sent to do “a welfare check on a suicidal male.” They knew Case had alcohol and mental health problems, had threatened suicide before, and had once appeared to try “suicide by cop.”

At the house, nobody answered their knocks or calls. Through the windows the officers saw empty beer cans, an empty handgun holster, and a notepad they believed was a suicide note. About 40 minutes after arriving, they went in. Case stepped out of a bedroom closet holding what looked like a gun, and an officer shot and injured him. Officers found a handgun nearby, and Case was charged with assaulting a police officer.

Case moved to suppress all evidence from the entry. The trial court denied the motion, a Montana jury convicted him, and a divided Montana Supreme Court upheld the entry. The U.S. Supreme Court took the case because federal appeals courts disagreed about whether emergency entries require probable cause.

What Did the Supreme Court Hold in Case v. Montana?

The Court held that an officer may enter a home without a warrant to render emergency aid if the officer has “an objectively reasonable basis for believing” that an occupant is seriously injured or imminently threatened with such injury. Justice Kagan’s opinion for a unanimous Court in Case v. Montana, 607 U.S. 107 (2026) reaffirmed the test from Brigham City v. Stuart, 547 U.S. 398 (2006), where officers entered after seeing a fight through a window, and said that test applies “with no further gloss.”

The Court also repeated a limit that matters in criminal cases: “an emergency-aid entry provides no basis to search the premises beyond what is reasonably needed to deal with the emergency while maintaining the officers’ safety.” Applying the standard, the Court found the officers had a reasonable basis to believe Case had shot himself or was about to, and it affirmed his conviction.

How Did Case v. Montana Change the Law in Florida?

Case v. Montana changed the federal rule that applied in Florida. The Court listed the Eleventh Circuit, the federal appeals court that covers Florida, among the courts that had required probable cause for emergency entries, citing United States v. Cooks, 920 F.3d 735 (11th Cir. 2019). That probable-cause gloss is gone; federal courts in Florida now apply the Brigham City standard as written.

Florida’s state courts were already close to the Brigham City test. In Seibert v. State, 923 So. 2d 460 (Fla. 2006), a roommate called 911 to report that Michael Seibert was suicidal. Seibert took several minutes to answer the door, opened it only partway, and slammed it shut. The Florida Supreme Court upheld the entry because “an objectively reasonable basis” existed to believe there was “an immediate need for police assistance for the protection of life.” The court also held that the search must be “strictly circumscribed by the exigencies which justify its initiation,” and that once officers determine no emergency exists, “any subsequent search is illegal.”

That scope rule is where many Florida welfare-check cases are won. Under Seibert, officers may seize contraband in plain view while the emergency is still being resolved, but not after it ends. Our attorneys build the timeline from body camera footage, dispatch records, and CAD logs to show the moment the emergency ended and what the officers did next.

What Did Justice Sotomayor Say About Mental Health Welfare Checks?

Justice Sotomayor joined the Court’s opinion but wrote separately to warn that entering a home is not always the reasonable response to a person in a mental health crisis, because “the presence of law enforcement at times can escalate the situation rather than ameliorate it, putting both the occupant and the officers in danger.” She cited research showing that people with serious mental health conditions are “seven times more likely to be killed during police interactions” than the general population, and a Washington Post review finding that over a 2-year period, “calls for help resulted in law enforcement officers shooting and killing the very people they were called on to assist” in 178 cases.

She also cited a 2024 American Journal of Public Health study by Ward and colleagues finding that police shootings involving behavioral health concerns were 2.1 times more likely to be fatal than other police shootings, and a 2018 International Journal of Law and Psychiatry study by Saleh and colleagues finding that people with mental illness were “2.8 times more likely” to “be killed in their own homes.” She suggested officers may sometimes do better to call from a distance, contact family, or bring in crisis-trained officers or mental health professionals before entering, and she wrote that once officers decide to go in, the “manner” of the entry and their conduct inside must also be “reasonable.”

A concurrence is not the holding, but it is persuasive authority a Florida judge can consider. The majority noted that Case never challenged how the officers entered or what they did inside, so those questions remain open for future cases.

How Often Do Florida Police Respond to Mental Health Crises?

Constantly. In fiscal year 2023-2024, Florida conducted 161,576 involuntary examinations under the Baker Act, and 52.36% of them were initiated by law enforcement, according to the Baker Act Reporting Center at the University of South Florida. Involuntary examinations fell 20% from fiscal year 2019-2020, when there were 202,598.

Under section 394.463, Florida Statutes, an officer “may take a person who appears to meet the criteria for involuntary examination into custody.” Many welfare checks end that way. Some end with a criminal charge instead, based on what officers saw inside the home or on how the encounter went. When the person in crisis is also charged with a crime, our Tampa criminal mental health lawyer team handles both the Fourth Amendment issues and the mental health defense.

Can You Challenge Evidence Found During a Welfare Check in Florida?

Yes. A motion to suppress can challenge a welfare-check entry on several grounds, even after Case v. Montana. These are the questions our attorneys ask in every case:

1. Did officers have an objectively reasonable basis to believe someone inside was seriously hurt or in imminent danger? A stale tip, an anonymous call with no detail, or a report contradicted by what officers saw at the door may fall short.
2. Did the emergency end before the search? Once officers found the person and saw no one needed aid, further searching required a warrant or another exception, under both Case v. Montana and Seibert.
3. Did the search stay within the emergency? Opening drawers, containers, or rooms where no person could be is beyond “what is reasonably needed to deal with the emergency.”
4. Was the manner of entry reasonable? Justice Sotomayor’s concurrence supports arguments about forced entry, weapons drawn, and refusal to try de-escalation first.
5. Was this really community caretaking? In Caniglia v. Strom, 593 U.S. 194 (2021), the Court refused to let a general “community caretaking” rationale justify warrantless home entries. A check on someone’s general well-being, without a real emergency, does not qualify.

Our motion to suppress guide explains how these hearings work in Florida, and our post on when police can enter your home without a warrant in Florida covers the other exceptions, including consent, hot pursuit, and destruction of evidence.

What Charges Come Out of Welfare Checks in Tampa?

Welfare checks can lead to several kinds of charges: drug or weapons charges based on items officers saw inside, domestic violence charges based on what a family member reported, and charges against the person in crisis for how the encounter ended. In Case itself, the charge was assaulting an officer. In Florida, section 784.07, Florida Statutes, reclassifies an assault on a law enforcement officer “engaged in the performance of his or her official duties” from a second-degree to a first-degree misdemeanor, and a battery from a first-degree misdemeanor to a third-degree felony.

Because the suppression ruling and the trial defense often turn on the same facts about the entry, our attorneys prepare them together. Drug cases often turn on the scope of the search; our Tampa drug crimes attorney page explains how we defend them. Charges for battery on an officer are covered on our violent crimes defense page.

Why Does Police Training Matter in Welfare-Check Cases?

Police training matters because the officer’s account of what he knew and why he went in is the heart of the suppression hearing. As Rocky Brancato puts it: “As a former police academy instructor in criminal procedure and courtroom testimony, I taught officers the constitutional requirements they must follow, including when they can and cannot enter a home without a warrant. When I cross-examine an officer about a welfare check entry, I know what they were taught about the emergency aid exception, and I know when their actions deviate from proper constitutional standards.”

In Hillsborough County, suppression motions in felony cases are heard in circuit court in the 13th Judicial Circuit before trial. Our Hillsborough County criminal defense attorney page explains how those cases move, and our post on how Tampa police mistakes can lead to a dismissal shows what a successful challenge can mean for the case.

Frequently Asked Questions About Case v. Montana and Welfare Checks

Do Florida police need a warrant to do a welfare check inside my home?

No, not if they have an objectively reasonable basis to believe someone inside is seriously injured or in imminent danger. The Brancato Law Firm tests that basis against the 911 call, the dispatch notes, and the body camera footage; see our guide on warrantless home entry in Florida.

Can police search my whole house during a welfare check in Florida?

No. Case v. Montana says an emergency entry gives “no basis to search the premises beyond what is reasonably needed to deal with the emergency,” and Seibert makes any search after the emergency ends illegal. Our attorneys at The Brancato Law Firm use that limit to suppress evidence found in drawers, closets, and containers.

What if the welfare check was based on a false or mistaken report?

The entry can still be lawful if the report reasonably appeared true when officers acted, because Florida courts judge the officer’s belief at the time of entry. The Brancato Law Firm looks for facts at the scene that should have dispelled the report, since they can undercut the officers’ basis.

Does Case v. Montana apply if I told police I was fine?

Your statement is part of the totality of circumstances, but officers may weigh it against other facts such as a weapon or a third-party report. Our attorneys at The Brancato Law Firm rely on Justice Sotomayor’s concurrence, which cited cases where officers forced entry after the occupant said he was okay.

Can I be Baker Acted after a welfare check in Florida?

Yes, an officer may take a person who appears to meet the criteria into custody for an involuntary examination under section 394.463. The Brancato Law Firm represents clients whose crisis also led to criminal charges; see our criminal mental health defense page.

Is a welfare check the same as community caretaking?

No. After Caniglia v. Strom, a general community caretaking purpose does not justify entering a home; officers need a real emergency under the Brigham City standard. The Brancato Law Firm challenges entries where the facts show only a general concern for someone’s well-being.

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 About an Unlawful Home Entry

The best time to challenge a welfare-check entry is before the State finalizes its case, while body camera footage, 911 audio, and dispatch logs are still easy to obtain. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159, and our attorneys will review how the officers got in and what they did inside. 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 criminal defense in Spanish and Haitian Creole in Tampa.

For more about our defense strategies, visit our Tampa Criminal Mental Health 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.

If officers found marijuana in your car, your bag, or your apartment, the charge on your paperwork turns on details most people never think about: the weight, whether it was flower or concentrate, and whether a lab ever proved it was marijuana and not hemp. I’m Rocky Brancato, 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. Our attorneys defend marijuana and THC cases across Hillsborough, Pinellas, and Pasco Counties, and in many of them the most useful work happens before the State Attorney’s Office decides what to file.

How Much Weed Is a Felony in Florida?

More than 20 grams of cannabis flower is a felony. Under section 893.13(6)(b), Florida Statutes, “If the offense is the possession of 20 grams or less of cannabis, as defined in this chapter, the person commits a misdemeanor of the first degree.” Anything above that falls under section 893.13(6)(a), which makes unauthorized possession of a controlled substance a third-degree felony. Twenty grams is about seven-tenths of an ounce, so the exact lab weight matters.

The charge climbs in steps, from a misdemeanor for a small amount of flower to trafficking above 25 pounds.

Maximum terms come from section 775.082 and section 775.083, Florida Statutes. Our Tampa drug crimes attorney team first checks whether the State charged the right step.

Is THC Illegal in Florida?

THC from marijuana is illegal without a medical marijuana card, while THC within the legal hemp limit is not. Cannabis is a Schedule I substance under section 893.03(1)(c), Florida Statutes, which also lists tetrahydrocannabinols separately. Section 893.02(3) defines cannabis to include “the resin extracted from any part of the plant,” but excludes marijuana dispensed in conformance with the medical marijuana law and “hemp as defined in s. 581.217.”

That is why “possession of tetrahydrocannabinols” or “possession of THC” is such a common charge description. It is the charge prosecutors use for vape cartridges, oils, edibles, and concentrates, and it is usually filed as a third-degree felony under section 893.13(6)(a).

Why Is a THC Vape or Concentrate Usually Charged as a Felony?

Because the 20-gram misdemeanor does not cover resin. Section 893.13(6)(b) states that for the misdemeanor, “the term ‘cannabis’ does not include the resin extracted from the plants of the genus Cannabis, or any compound manufacture, salt, derivative, mixture, or preparation of such resin.” Wax, shatter, hash, and resin oils are therefore felonies at any weight.

The State still has to prove where the THC came from. In State v. Stevenson, 307 So. 3d 784 (Fla. 4th DCA 2020), a Broward County man was charged with a felony for three THC vape cartridges with a total gross weight of 14.04 grams. The State’s chemist could not say whether the THC was resin-derived or synthetic. The Fourth District held he “could be charged with a felony only if the State could make a prima facie showing that the source of the THC substance possessed by the defendant was either artificially produced, cannabis resin, or ‘any compound manufacture, salt, derivative, mixture, or preparation of such resin,'” and affirmed dismissal of the felony with leave to refile it as a misdemeanor. Our attorneys at The Brancato Law Firm raise Stevenson in vape and edible cases where the lab report is silent about the source.

Can the State Prove It Was Marijuana and Not Hemp?

Only with chemical testing. Under section 581.217, Florida Statutes, hemp is cannabis with “a total delta-9-tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis,” and hemp-derived cannabinoids “are not controlled substances or adulterants” when they comply with the section.

The Second District applied that rule to a Hillsborough County case in Campbell v. State, 407 So. 3d 558 (Fla. 2d DCA 2025). Detectives at Tampa International Airport seized two duffle bags holding 50 vacuum-sealed bundles, and the FDLE analyst tested one 24.47-gram sample. The court held that “Legal hemp and illegal cannabis are indistinguishable by appearance, texture, and odor, such that chemical testing to determine the THC content is now needed to avoid misidentification.” When the State counts several packages toward a trafficking weight, it “must chemically test each packet.” The court reversed the trafficking conviction and ordered entry of felony possession instead.

An officer’s description of “green leafy material” is not proof of THC concentration. Our attorneys at The Brancato Law Firm demand the lab report and check exactly which items were tested.

Can Police Search Your Car Because They Smell Marijuana?

Not on odor alone in Hillsborough, Pinellas, or Pasco County. In Williams v. State, 421 So. 3d 809 (Fla. 2d DCA 2025) (en banc), a Hillsborough County passenger was searched after officers stopped the car for an obstructed tag and a rolling stop and smelled cannabis. The full Second District held that “the plain smell doctrine can no longer establish probable cause based solely on the odor of cannabis,” though odor remains a factor in the totality of the circumstances. It receded from its own 2021 precedent to the extent that precedent held smell alone was enough.

Williams himself lost on the good-faith exception, because the officers had relied on the earlier precedent, and the court certified this question to the Florida Supreme Court: “DOES THE PLAIN SMELL DOCTRINE CONTINUE TO APPLY TO ESTABLISH PROBABLE CAUSE BASED ONLY ON THE ODOR OF CANNABIS?” The Fifth District reached a similar result first in Baxter v. State, 389 So. 3d 803 (Fla. 5th DCA 2024) (en banc), holding that “Unless and until the State demonstrates that illegal cannabis has an odor that is distinct from legal cannabis,” the justification for an odor-only detention “no longer exists.” The Sixth District, which covers Polk and southwest Florida, noted the debate in 2026 but did not decide it.

The issue comes up twice: in a motion to suppress before trial, and in the Campbell testing question at trial. Our post on the Second DCA limits on the plain smell doctrine covers the search issue in more depth.

Does a Medical Marijuana Card Protect You From a Possession Charge?

Only when you follow the rules. Under section 381.986, Florida Statutes, a qualified patient “may not possess more than a 70-day supply of marijuana, or the greater of 4 ounces of marijuana in a form for smoking” or an amount the department approves, and “all marijuana purchased must remain in its original packaging.”

The protection also ends outside “medical use.” A patient who buys from anyone other than a licensed medical marijuana treatment center “violates s. 893.13” under section 381.986(12)(d), and using marijuana other than low-THC cannabis in a vehicle or in public is a separate offense under section 381.986(12)(c). Carrying dispensary product in the car is allowed; using it there is not.

Our attorneys at The Brancato Law Firm bring the patient’s certification, receipts, and packaging to the prosecutor early. Patients also face a federal firearm question, covered in our post on whether you can own a gun if you use marijuana in Florida, and the card is no defense to impaired driving, as our guide to marijuana DUI in Florida explains.

What If the Marijuana Was Not in Your Pocket?

Then the State has to prove constructive possession. Section 893.13(6)(a) reaches “actual or constructive possession,” which is how passengers, roommates, and drivers of borrowed cars end up charged. Our post on constructive possession in Florida explains how courts decide whether the State has tied the item to you, and our attorneys look closely at who else had access.

When Does Possession Become Intent to Sell or Trafficking?

Intent to sell is a third-degree felony at any weight. Under section 893.13(1)(a), a person “may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance,” and cannabis is in the third-degree group. Giving away 20 grams or less with no payment is a first-degree misdemeanor under section 893.13(3).

Trafficking starts above 25 pounds. Under section 893.135(1)(a), Florida Statutes, possession of “in excess of 25 pounds of cannabis, or 300 or more cannabis plants” is a first-degree felony with mandatory minimums.

A plant counts only if it has “some readily observable evidence of root formation, such as root hairs.” After Campbell, the State must also test each package it counts, so our attorneys attack the trafficking weight first.

Did Florida Legalize Recreational Marijuana?

No. Amendment 3, the 2024 adult personal use measure, received 5,950,589 yes votes, or 55.9%, according to the Florida Division of Elections official results. Constitutional amendments in Florida need 60%, so it failed. Hillsborough County voters approved it 382,243 to 277,062, but the statewide total controls.

A follow-up measure will not reach the 2026 ballot. After the Secretary of State directed county election officials to strike about 70,600 petition signatures, the First District upheld that direction and the Florida Supreme Court declined review in March 2026, Insurance Journal reported. Possession without a medical card is still a crime in 2026.

What Changes for Hemp on November 12, 2026?

The federal definition of hemp narrows on November 12, 2026. According to the Congressional Research Service report Change to Federal Definition of Hemp and Implications for Federal Enforcement (December 3, 2025), Public Law 119-37 moves the federal limit to a total THC concentration, excludes final hemp-derived cannabinoid products with “more than 0.4 milligrams of THC per container,” and excludes cannabinoids synthesized or manufactured outside the plant. “The new definition will take effect November 12, 2026.”

Florida’s hemp statute was last amended in 2023 and does not adopt the federal text, so state charges still turn on section 581.217 and its 0.3% delta-9 limit. Our attorneys at The Brancato Law Firm treat a hemp product’s label and certificate of analysis as evidence from the first day.

How Many Drug Arrests Happen in Hillsborough County?

More than ten thousand a year. In 2025, Hillsborough County recorded 10,502 drug arrests, a rate of 666.5 per 100,000 residents, according to FDLE arrest data published by Florida Health CHARTS. That is up from 8,124 in 2024 and 6,914 in 2016, a 52% increase over nine years, while Florida’s statewide total fell from 103,461 in 2016 to 89,562 in 2025.

Pinellas County recorded 5,269 drug arrests and Pasco County 1,817 in 2025. These figures count arrests for all drug categories, since CHARTS does not separate marijuana, and they are arrests, not convictions.

How Do Our Attorneys Fight a Marijuana or THC Charge?

One element at a time:

1. Challenge the search. If the stop or search rested on odor, we file a motion to suppress under Williams and Baxter.
2. Demand lab proof. Under Campbell, the State needs chemical testing of THC content to tell marijuana from hemp, and it must test each package it counts toward a trafficking weight.
3. Test the felony label. For vapes, edibles, and oils, we hold the State to Stevenson’s requirement that it prove a resin or synthetic source.
4. Check the weight. A few grams decide whether the case is a misdemeanor or a felony.
5. Contest possession. In shared cars and homes, we press the State to prove knowledge and control.
6. Show medical compliance. A card, a receipt, and original packaging can end a case.
7. Push for diversion or a no-file decision. Completing a program, or persuading the prosecutor not to file, ends the case without a conviction.

What Diversion Programs Are Available for Marijuana Charges in Hillsborough County?

Several, run through the State Attorney’s Office for the 13th Judicial Circuit, which lists them on its programs page. Its Drug Education and Treatment Reducing Recidivism program (DETRR) “is limited to drug possession cases for low-risk, non-violent offenders,” and a participant who completes the assigned treatment or education and stays arrest-free for six months has the possession charge dismissed.

The office also lists the Adult Pre-Arrest Diversion Program, established in Hillsborough County in July 2017 for people with minimal or no record who commit an eligible misdemeanor, under which no charges are filed if the program is completed; a Misdemeanor Intervention Program for first-time offenders; and Pretrial Intervention for “certain first-time felony offenders.” Our Hillsborough County criminal defense attorney team negotiates entry into these programs, and our representation before charges are filed can put the lab issues and the client’s record in front of the prosecutor before a charging decision.

What Should You Do After a Marijuana Arrest in Tampa?

Act before the first court date. A person arrested in Hillsborough County sees a judge at first appearance within 24 hours and is held at the Orient Road Jail until release, and the State Attorney’s Office then decides what to file. Four steps protect the case:

• Do not explain. Statements about whose bag it was are the State’s best evidence of possession.
• Do not consent to searches. Say so plainly to preserve the suppression issue.
• Keep your records. Save your medical card, receipts, hemp labels, and certificates of analysis.
• Call a lawyer early. Diversion and pre-file options are easiest to reach before the charging decision.

Frequently Asked Questions About Marijuana Possession in Florida

What happens for a first-time marijuana possession offense in Florida?

For 20 grams or less, a first offense is a first-degree misdemeanor punishable by up to a year in jail and a $1,000 fine, and in Hillsborough County many first-time cases qualify for diversion. The Brancato Law Firm checks eligibility for DETRR, pre-arrest diversion, and the Misdemeanor Intervention Program before anything else; see our drug crimes defense page.

Can marijuana possession charges be dropped in Florida?

Yes, through suppression, failed lab proof, or completion of a diversion program such as DETRR. The Brancato Law Firm often contacts the prosecutor before the filing decision through our pre-file advocacy work.

Is a THC vape cartridge a felony in Florida?

It is usually charged as one, because resin-derived THC is excluded from the 20-gram misdemeanor. Under State v. Stevenson, the State must show the THC came from resin or was synthetic, and our attorneys at The Brancato Law Firm hold the lab to that showing in every vape case.

Can police search my car in Florida if they smell weed?

Not on odor alone in Hillsborough, Pinellas, or Pasco County after Williams v. State, though odor can still count with other facts. The Brancato Law Firm reviews the body camera video to see what else the officers claimed, as our plain smell doctrine post explains.

Can I be charged with possession if I have a medical marijuana card?

Yes, if the marijuana did not come from a licensed treatment center, was out of its original packaging, or exceeded the supply limit. Our attorneys at The Brancato Law Firm gather the certification and receipts that show compliance and present them to the prosecutor.

Is hemp flower or delta-8 legal to carry in Florida in 2026?

Under Florida law, hemp within section 581.217’s 0.3% delta-9 THC limit is legal, though the federal definition narrows on November 12, 2026. The Brancato Law Firm treats the product’s label and certificate of analysis as defense evidence, and the Congressional Research Service report explains the federal change.

Talk to a Tampa Marijuana Defense Attorney

The best time to call is before the lab report comes back and the State makes its filing decision. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will review the search, demand the lab testing, and press for diversion or dismissal. Call (813) 727-7159 for a free, confidential consultation; you can reach 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 criminal defense in Spanish and Haitian Creole in Tampa.

For more about our defense strategies, visit our Tampa Drug Crimes 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 can remove a registration requirement only after the petitioner proves every statutory condition from certified records, and even then the judge must be satisfied that the person is not a current or potential threat to public safety. I have spent more than 25 years in Hillsborough County courtrooms, including service in the Major Crimes Unit of the Hillsborough County Public Defender’s Office, which handled homicide, sex crimes, and child abuse cases. My name is Rocky Brancato, and I am the 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. Our attorneys screen eligibility from the court file before anything is filed, because a denied Romeo and Juliet motion can never be filed again.

Most people who ask whether they can get off the sex offender registry in Florida are barred by the statute itself, most often by a single arrest since release or by the offense of conviction. A registration deputy may have told you to call a lawyer, but deputies process registrations and do not decide eligibility. The six questions below take about two minutes and will tell you where you stand before you spend money. Because of the volume of registry inquiries we receive, our firm does not offer free consultations on registry removal, designation, or out-of-state registration questions.

Can a sex offender get off the registry in Florida?

Yes, through one of four legal routes, and each one has its own gatekeeper. Section 943.0435(11) makes lifetime registration the default and lists the exceptions, section 943.04354 adds the Romeo and Juliet route, and section 943.0435(11)(b) covers people who register here only because another state designated them. The table below shows which route fits which situation.

How many people actually get off Florida’s registry?

Very few people leave Florida’s registry through a court. From October 1, 2021, through September 30, 2024, FDLE removed 2,554 people from the registry, and only 22 of them were removed because a qualifying conviction was vacated, according to the Florida Legislature’s Office of Program Policy Analysis and Government Accountability (OPPAGA) in Report 24-11 (2024). In the same period, 26 people were removed under the Romeo and Juliet law, 48 were Florida residents with out-of-state convictions, 107 did not live in Florida, and 2,282 had died. OPPAGA’s breakdown does not report a separate figure for the 25-year petition.

The registry is also far larger than the group living in Florida neighborhoods. As of October 2024, only 30,907 people on Florida’s registry lived in Florida communities, according to the same 2024 OPPAGA report; the rest were incarcerated, civilly committed, living out of state, or had absconded. Closer to home, OPPAGA counted 1,579 registered sex offenders in Pinellas County and 872 in Pasco County in 2024.

Start here: six questions that tell you if you are barred

Work through these in order. Each question comes from section 943.0435(11), and if a question stops you, the bar is written into the statute, so no motion can get around it.

Question 1. Are you still in custody or on probation, parole, community control, or any other sanction for the offense?

If yes, stop. The waiting period has not started. The clock runs from release from “confinement, supervision, or sanction, whichever is later,” so it starts when the last piece of the sentence ends, which may be years after you left prison. Count unpaid restitution, fines, or costs if the sanction has not formally terminated.

If no, go to Question 2.

Question 2. Since that date, have you been arrested for anything at all?

If yes, stop. Section 943.0435(11)(a)1. requires that the person “has not been arrested for any felony or misdemeanor offense since release,” and the statute turns on the arrest, whatever the outcome. Charges that were dropped, dismissed, or ended in acquittal still count, and so does an arrest for failure to register. One thing is worth checking: if your FDLE criminal history shows an arrest that never happened or belongs to someone else, that is a records error to correct before anything else.

If no, go to Question 3.

Question 3. Was your registration based on an adult conviction for one of these offenses?

• Kidnapping or false imprisonment under section 787.01 or 787.02
• Sexual battery under section 794.011, other than section 794.011(10)
• Lewd or lascivious battery under section 800.04(4)(a)2., where the court found the victim was under 12 or the sexual activity involved force or coercion
• Lewd or lascivious molestation under section 800.04(5)(b)
• Lewd or lascivious molestation under section 800.04(5)(c)2., where the court found both force or coercion and unclothed genitals or genital area
• A lewd or lascivious offense on an elderly or disabled person under section 825.1025(2)(a)
• An attempt or conspiracy to commit any of these, or a similar offense under another state’s or federal law

If yes, stop. These are permanent bars to the 25-year petition. Registration then lasts for life unless you obtain a full pardon, a postconviction court sets the conviction aside, or a section 800.04 case fits the Romeo and Juliet route described below. Two of the bars apply only where the sentencing court made a specific finding, so if your judgment and written findings do not contain that finding, the bar may not reach you. That is a question for your paperwork, and your memory of the case cannot answer it.

If your only registrable offense was a juvenile adjudication, keep going. These bars apply only to adult convictions.

If no, go to Question 4.

Question 4. Has a judge designated you a sexual predator?

A sexual predator designation is a separate written court order under section 775.21, Florida Statutes, and it appears on your FDLE registration record. If yes, the 25-year petition is not available, because section 775.21(6)(l) requires a predator to register for life unless the person receives a full pardon or has the qualifying conviction set aside. Two doors remain open: a Romeo and Juliet motion, which by its terms applies to sexual offenders and sexual predators, and a motion showing the designation was entered contrary to law, which our firm handles.

If no, go to Question 5.

Question 5. Has it been at least 25 years since the last of your confinement, supervision, or sanctions ended?

If no, stop and do the arithmetic: add 25 years to the date your last sanction ended, and that is the earliest date you can petition. Between now and then, one arrest for anything ends eligibility permanently. If someone told you 20 years, that was the law before July 1, 2007, and three Florida appellate courts, including the Second District Court of Appeal that covers Tampa Bay, now say the 25-year rule governs every petition filed today.

If yes, go to Question 6.

Question 6. Were you removed from another state’s registry, or told you no longer have to register there?

If yes, that relief does not carry over automatically, and your route runs through FDLE rather than a judge. Skip to the out-of-state section below.

If you answered no to every question, you have cleared the automatic bars in the statute. That is uncommon, and it is as far as a checklist can take you. What remains is a discretionary decision made on your records by a particular judge.

What does the 25-year petition require in Florida?

A 25-year petition under section 943.0435(11)(a) requires four things: at least 25 years since release from confinement, supervision, or sanction, whichever is later; no arrest for any felony or misdemeanor since release; no adult conviction on the barred list; and a judge’s decision to grant relief. The Legislature raised the waiting period from 20 to 25 years and added the permanent bars in chapter 2007-209, Laws of Florida, which took effect July 1, 2007.

The judge must make three findings

Meeting the threshold only opens the door. Under section 943.0435(11)(a)3., the court “may grant or deny relief” if the petitioner shows no arrest for any crime since release, shows that relief complies with the federal Adam Walsh Child Protection and Safety Act of 2006 and related federal standards, and the court “is otherwise satisfied that the offender is not a current or potential threat to public safety.” If the court denies the petition, it may set a future date when the person can petition again.

That last finding is where the evidence matters. A U.S. Department of Justice research brief, Recidivism of Adult Sexual Offenders (SMART Office, 2015), summarized a meta-analysis finding that 14 percent of offenders were sexual recidivists after five years, while only 7 percent of those who stayed offense-free for those five years sexually reoffended over the next five. Our attorneys use research like this, together with treatment, employment, and family records, to show a judge what decades without an arrest mean.

Who gets notice and who can oppose the petition

FDLE and the state attorney for the circuit where the petition is filed must receive notice at least 3 weeks before the hearing, and both may present evidence against the petition. FDLE’s right to notice was added in 2024; before that, the statute required notice only to the state attorney. If the court grants relief, FDLE removes the person from classification as a sexual offender once it receives a certified copy of the order.

Where the petition is filed

The petition goes to the criminal division of the circuit court in the circuit where the conviction or adjudication occurred. For an out-of-state conviction, it goes to the circuit where the person lives, or where the person last lived if he or she has left Florida.

How does a registry removal petition work in Hillsborough County?

A Hillsborough County conviction means a petition in the criminal division of the circuit court for the 13th Judicial Circuit, with notice to the State Attorney’s Office for the 13th Judicial Circuit and to FDLE. The steps below follow the statute; the evidence is what changes from case to case.

1. Pull certified records: the judgment and sentence for every qualifying offense, any written findings the sentencing court made, proof of the date every sanction ended, a current FDLE criminal history, and your registration record.
2. Check eligibility against section 943.0435(11)(a) line by line, including the full arrest history and the barred-offense list.
3. File the petition in the criminal division of the circuit court where the conviction occurred.
4. Give the State Attorney’s Office and FDLE notice at least 3 weeks before the hearing.
5. At the hearing, present evidence that you are not a current or potential threat to public safety. The State and FDLE may present evidence in opposition.
6. If the judge grants relief, deliver a certified copy of the order to FDLE, which then removes the registration requirement.

Two of the leading appellate decisions on which version of the statute applies, State v. Korson and State v. Perdomo, discussed below, both came out of Hillsborough County circuit court. In our experience defending failure-to-register cases in Hillsborough County, the arrest bar is the single most common reason a caller who believes he qualifies does not.

Can a juvenile adjudication come off the Florida registry?

Yes, and juvenile registrants have more options than most people are told. A juvenile adjudication triggers registration only if the child was adjudicated delinquent on or after July 1, 2007, was 14 or older at the time of the offense, and committed one of a short list of offenses with specific court findings, under section 943.0435(1)(h)1.d. The permanent bars to the 25-year petition apply only to adult convictions, so a person whose only registrable offense is a juvenile adjudication, even for sexual battery, may petition after 25 arrest-free years. A delinquency adjudication can also qualify for the Romeo and Juliet route.

Two court decisions help juvenile clients. In K.J.F. v. State, 44 So. 3d 1204 (Fla. 1st DCA 2010), the First District ordered a juvenile off the registry because his adjudication of delinquency had been withheld, and the juvenile registration provision reaches only a child who was adjudicated delinquent. In M.B. v. State, 159 So. 3d 960 (Fla. 5th DCA 2015), the Fifth District reversed a juvenile’s registration requirement because the trial court never found that the molestation involved unclothed genitals, and in fact found the opposite; the court said the juvenile provision “must be strictly construed.” Our post on juvenile sex offender registration in Florida covers what parents should do at the disposition stage.

How does Florida’s Romeo and Juliet law remove registration?

The Romeo and Juliet law, section 943.04354, lets a judge remove the registration requirement with no waiting period when the case involved a teenager close in age. It is narrow, and every one of these must be true:

• The conviction, regardless of adjudication, or the delinquency adjudication was for section 800.04, section 827.071, or section 847.0135(5), or a similar offense in another jurisdiction.
• The person has no other conviction or adjudication under section 794.011, 800.04, 827.071, or 847.0135(5).
• Registration is required solely because of that offense.
• The victim was 13 to 17 at the time, and the person was not more than 4 years older than the victim.
• Removal will not conflict with federal law requiring that the sexual act be consensual, notwithstanding the victim’s age.

Sexual battery does not qualify. Chapter 2016-104, Laws of Florida, removed section 794.011 from the qualifying list in 2016, and it now appears only in the disqualifying clause, yet many pages still describe it as eligible. Traveling to meet a minor does not qualify either. In Maxey v. State, No. 6D2024-1883 (Fla. 6th DCA Mar. 6, 2026), a man convicted under section 847.0135(3) in a case involving a perceived 14-year-old won a removal order, the trial court later vacated it, and the Sixth District affirmed because his offense was not on the list and he was more than 4 years older than the perceived victim.

Timing and second chances work differently here. In Hurtado v. State, 332 So. 3d 15 (Fla. 2d DCA 2021), the Second District reversed the denial of a Romeo and Juliet motion and held that under the current statute a person “may file the motion at any time.” Older decisions such as Clark v. State, 95 So. 3d 986 (Fla. 2d DCA 2012), which required the motion before sentencing, applied the earlier version of the law. Hurtado also notes that successive motions are not authorized: section 943.04354(2)(b) says that if the court denies the motion, the person may not file another one. That is why our attorneys do not file one until the record supports it.

Relief is still discretionary. In State v. Caragol, 120 So. 3d 641 (Fla. 5th DCA 2013), the Fifth District quashed a removal order because the trial court ignored the age requirement, explaining that meeting every criterion is what gives a court discretion to grant relief and that the court must state the basis for its ruling. The State Attorney and FDLE must receive notice at least 21 days before the hearing and may oppose the motion. A person convicted elsewhere must also give the court written confirmation that he or she is not required to register in that jurisdiction.

A granted motion does more than end reporting. Section 943.04354(3) directs FDLE to remove the person’s information from the public registry, and section 775.215(2)(c), Florida Statutes, excludes people removed under the Romeo and Juliet law from the state’s 1,000-foot residency restriction. Our page on Romeo and Juliet registry removal in Florida walks through eligibility in more detail.

How do the 25-year petition and the Romeo and Juliet motion compare?

The two court routes differ on almost every point that decides a case. The table below compares them side by side.

Can a sexual predator get off the registry in Florida?

Rarely. A court-designated sexual predator must register for life under section 775.21(6)(l) unless the person receives a full pardon or has the qualifying conviction set aside in a postconviction proceeding, and FDLE’s published guidance confirms that no statute lets a predator petition to remove the designation. The two realistic paths are a Romeo and Juliet motion, when the case fits that statute, and a motion showing the designation never should have been entered.

Designation errors happen more often than people expect. A predator designation depends on specific qualifying offenses and findings, and when the record does not support them, the order can be challenged by a motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Our firm has obtained that relief, as the results table below shows. Our post on removing a wrongful sexual predator designation explains the process, and our Tampa sex crimes defense attorney page covers the underlying charges.

What if you were removed from another state’s registry?

Florida does not automatically honor another state’s removal. Under section 943.0435(11)(b), a person who registers here because of another state’s designation must prove two things: that the designation was removed by court order or by operation of law, and that he or she does not meet any other Florida criteria for registration under section 943.0435(1)(h)1. The second showing defeats most people, because the underlying conviction usually qualifies on its own under Florida law.

This route starts with FDLE, not a circuit judge. In Adams v. State, 37 So. 3d 953 (Fla. 4th DCA 2010), a man asked a Florida court to end his registration after another state removed him; the Fourth District held he first had to petition FDLE under section 943.0435(11)(b), with mandamus in circuit court available if FDLE refused, and it did not decide his full faith and credit or equal protection arguments. FDLE’s own registry FAQ warns that removal from another state’s requirement does not guarantee removal in Florida, and it offers a written case review for people with no registration duty elsewhere or whose offense was a juvenile adjudication. Our post on moving to Florida after registry removal in another state covers this route in depth.

How does federal law (SORNA) affect getting off the registry in Florida?

Federal law sets the floor a Florida judge must respect. Section 943.0435(11)(a)3. allows removal only if relief complies with the Adam Walsh Child Protection and Safety Act of 2006, whose Sex Offender Registration and Notification Act (SORNA) sorts offenders into three tiers. Under 34 U.S.C. § 20915, the full federal registration period is 15 years for Tier I, 25 years for Tier II, and life for Tier III. A Tier I offender who keeps a clean record for 10 years can reduce the period by 5 years, and a Tier III offender whose registration rests on a juvenile adjudication can reduce it from life to 25 years with a clean record.

Florida itself does not label registrants by tier; it classifies people as sexual offenders or sexual predators. Florida’s 25-year waiting period matches the federal Tier II period, and its permanent bars cover the most serious adult offenses. A Florida order ends the Florida registration requirement, so anyone with a federal conviction or plans to live in another state should have that jurisdiction’s rules checked separately.

Does a withhold of adjudication keep you off the registry?

No, not for an adult. Section 943.0435(1)(b) defines “convicted” to include a guilty or no contest plea “regardless of whether adjudication is withheld.” In DeRosa v. Tunnel, 989 So. 2d 1206 (Fla. 4th DCA 2008), a man who received a withhold on lewd and lascivious charges sought relief from registration, and the Fourth District affirmed the denial because the statute expressly counts withheld adjudications after a plea as convictions. Section 943.0436, Florida Statutes, also bars a judge from entering an order, including one approving a plea agreement, that exempts a qualifying person from registration.

That makes the plea stage the real decision point. If you are under investigation or newly charged, the time to avoid registration is before any plea, often through representation before charges are filed or a negotiated charge that does not require registration. Our post on withhold of adjudication and the sex offender registry explains how the rule differs for adults and juveniles.

What happens when a judge grants removal under the wrong law?

The order can be undone, and recent appellate decisions show it happening. Since 2025, three Florida district courts of appeal have said that section 943.0435 is procedural, so the version in effect when the petition is filed, with its 25-year period and permanent bars, controls even for offenses that are decades old.

The Second District: Korson and Perdomo

In State v. Korson, 413 So. 3d 207 (Fla. 2d DCA 2025), a man who pleaded guilty to sexual battery in 1992 and finished probation in 1999 petitioned in Hillsborough County after 20 years, and the circuit court applied the old 20-year statute and removed him. The Second District said the trial court should have applied the current version, which bars adult sexual battery convictions, but dismissed the State’s appeal for lack of jurisdiction. It relied on LaFave v. State, 149 So. 3d 662 (Fla. 2014), in which the Florida Supreme Court held that the State could not use certiorari to review an order ending Debra LaFave’s probation because the order was final and the State had no statutory right to appeal it. Two months later, in State v. Perdomo, No. 2D2024-0857 (Fla. 2d DCA May 16, 2025), another Hillsborough case, the court dismissed again and wrote that, “given the frequency with which the issue presented by the State appears to be arising,” it needed to reiterate that the statute is procedural.

The Fourth and Third Districts: Garcia and Hernandez

In Florida Department of Law Enforcement v. Garcia, No. 4D2025-2547 (Fla. 4th DCA Sept. 2, 2026), a Broward County man who pleaded to sexual battery in 1991 and finished supervision in 2000 filed a second removal petition in July 2024, and a successor judge granted it. FDLE, which was not a party, moved to vacate the order under section 943.0436(3), and the trial court ruled that FDLE lacked standing. The Fourth District reversed. It held that a removal petition is a civil regulatory proceeding, so the order was appealable; that FDLE has standing to challenge an order affecting its duty to maintain the registry; and that because Garcia had not reached 20 years when the law changed in 2007, he had only “a mere expectation based on an anticipation of the continuance of an existing law, which is not a vested right.” The court directed the trial court to vacate and strike the removal order.

On September 30, 2026, the Third District followed Garcia in State v. Hernandez, No. 3D2024-1122 (Fla. 3d DCA Sept. 30, 2026). Hernandez received a withhold in 1992 on charges that included lewd and lascivious assault on a child, finished supervision in June 2002, and petitioned in March 2024 under the old 20-year rule, and the Miami-Dade circuit court granted removal. The Third District reversed and ordered the trial court to deny the petition and restore him to the registry, without prejudice to a future petition once he meets the statute then in effect. It agreed with Garcia that these proceedings are civil and declined to follow Korson on that point.

What these decisions mean for a Tampa Bay petition

Three points follow for anyone filing in Hillsborough, Pinellas, or Pasco County. First, the Second, Third, and Fourth Districts now agree that the 25-year statute applies to petitions filed today. Second, a granted order is less final than it looks: section 943.0436(3) gives an affected agency 1 year after receiving an order to move to modify or set it aside, and Garcia holds that FDLE may use that power, and trial courts also correct their own errors, as the Maxey court did. Third, the courts still disagree on whether the State can appeal, because Korson treats these proceedings as criminal while Garcia and Hernandez treat them as civil, and Korson remains the Second District’s rule unless that court or the Florida Supreme Court changes it. Garcia and Hernandez each carry the court’s standard notice that the opinion is not final until any timely rehearing motion is resolved. Our attorneys build every petition on the current statute so that a granted order holds up.

What does getting off the registry do, and what does it not do?

Removal ends the duty to register and report, and the conviction itself stays on the record. The table below shows the practical effect.

Our firm does not handle clemency or firearm rights restoration applications. The Florida Commission on Offender Review investigates clemency requests for the Board of Executive Clemency, and we can point you to the right starting place.

What registry and designation results has our firm obtained?

Our attorneys have corrected and removed sexual predator designations and resolved an out-of-state registration problem, as the published results below show.

Past results do not guarantee future outcomes.

When should you start a registry removal case?

Start before you are eligible. For a 25-year petition, any arrest before the hearing can end eligibility, certified records from older cases can take time to locate, and the State and FDLE get at least 3 weeks of notice before any hearing, so the record review should begin well before your 25-year date. For a Romeo and Juliet motion there is no deadline, but there is only one motion, so it should be filed only when the record is complete.

What does our firm charge for registry removal?

Our attorneys file 25-year removal petitions under section 943.0435(11), Romeo and Juliet motions under section 943.04354, and motions to correct offender and predator designations entered contrary to law. We do not offer free consultations on registry removal, designation, or out-of-state registration questions; a half-hour consultation is $350, payable in advance. If we determine you qualify and you retain us, we quote a flat fee for the work and credit the $350 toward it. Before you pay for anything, work through the six questions above, because if the statute forecloses your petition, a consultation cannot change that, and we will tell you so.

We review by records, not by phone: the certified judgment and sentence for every qualifying offense, proof of the date your sanctions ended, your complete arrest history, and your current FDLE registration record.

If you are looking for information, support, or others in your situation rather than legal counsel, the Florida Action Committee is a Florida membership organization for registrants and their families. It is not a law firm.

Frequently asked questions

Can you get off the sex offender registry early in Florida?

Only through the Romeo and Juliet law, a full pardon, or a vacated conviction, because the 25-year petition has no early version. Our attorneys at The Brancato Law Firm check every Romeo and Juliet requirement against the court file before filing, since section 943.04354 allows only one motion; our page on who qualifies for Romeo and Juliet removal lists the criteria.

Does Florida use Tier 1, Tier 2, and Tier 3 sex offender levels?

No. Florida classifies people as sexual offenders or sexual predators, and the three tiers come from federal law under SORNA. The Brancato Law Firm looks at the federal tier because a Florida removal order must comply with the Adam Walsh Act.

How much does it cost to get off the sex offender registry in Florida?

No fee or payment buys removal; only the legal routes described above can end registration, and a court or FDLE decides them. At The Brancato Law Firm, a half-hour registry consultation is $350, credited toward a flat fee quoted after we review your records if you qualify and retain us; our sex crimes defense team page describes how we handle related cases.

How long does it take to get off the registry after a petition is filed?

The statute fixes only one step: FDLE and the State Attorney must receive notice at least 3 weeks before the hearing, and the rest depends on the court’s calendar and how quickly certified records arrive. The Brancato Law Firm gathers the certified records before filing so the hearing is not delayed waiting for documents.

Does a dismissed charge count as an arrest for registry removal?

Yes. Section 943.0435(11)(a)1. bars anyone “arrested for any felony or misdemeanor offense since release,” so the arrest counts even if the charge was dropped or ended in acquittal. The Brancato Law Firm pulls the full FDLE criminal history first, because an arrest that never happened or belongs to someone else is a records error that must be fixed before filing.

Can you seal or expunge a sex offense in Florida after getting off the registry?

No. Section 943.0584(2)(hh) makes any offense that is a predicate for sexual offender or sexual predator registration ineligible for court-ordered sealing or expunction. The Brancato Law Firm explains this at the start so clients know removal ends registration duties while the record stays public; our post on sex offender registration in Florida covers the duties themselves.

Do you need a lawyer to petition for removal from the sex offender registry?

The statute does not require one, but FDLE and the State Attorney can oppose the petition, and a denied Romeo and Juliet motion can never be refiled. The Brancato Law Firm’s Tampa sex crimes lawyers prepare the record, the evidence, and the legal argument so the judge has a complete basis to grant relief.

Can a lawyer tell me over the phone whether I qualify?

No, because eligibility turns on documents: the exact offense of conviction, the sentencing court’s findings, the date each sanction ended, and your full arrest history. The Brancato Law Firm answers that question from certified records in a paid consultation rather than guessing from a phone description.

Talk to our attorneys before you file

The first thing our attorneys do on a registry case is pull the certified judgment, the sentencing findings, and the FDLE record, because the answer is in the paperwork. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, handles registry removal, Romeo and Juliet, and designation cases for clients in Hillsborough, Pinellas, and Pasco Counties. Call (813) 727-7159 to schedule a records review; any arrest before your hearing ends eligibility for good, so start well before your 25-year date. 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 and Haitian Creole-speaking clients.

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

This page provides general information about Florida law and is not legal advice. Reading it does not create an attorney-client relationship.

As a trial lawyer who meets the Florida Rule of Criminal Procedure 3.112 qualifications to defend capital cases, and as founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I have tried more than 150 jury trials to verdict, and in murder cases the verdict usually turns on what the evidence proves about the moments before the death. I’m Rocky Brancato, and our attorneys defend first-degree murder, felony murder, and capital cases across Hillsborough, Pinellas, and Pasco Counties, starting with the 45-day window before the State decides whether to seek the death penalty.

For every Florida homicide charge, from manslaughter to capital murder, see our complete guide to homicide charges in Florida. This post focuses on first-degree murder.

What does the State have to prove for first-degree murder in Florida?

The State must prove that the accused caused the death and that the killing fits one of three theories in section 782.04(1), Florida Statutes. Each theory “is murder in the first degree and constitutes a capital felony.”

The theory shapes the whole defense. A premeditation case is fought over the accused’s state of mind; a felony murder case is fought over the underlying felony and the link between it and the death. Our Tampa homicide attorney team at The Brancato Law Firm identifies which theory the State is really relying on, because the charging document often alleges more than one. Chapter 2025-69 did not change first-degree murder; it added a separate third-degree murder offense for a person under 18 who distributes fentanyl that causes a death.

What is premeditation, and how does the State prove it?

Premeditation is a fully formed decision to kill, made with enough time to reflect, and the State usually proves it through circumstantial evidence. In White v. State, No. 4D2025-1360 (Fla. 4th DCA Aug. 19, 2026), the court explained that “[p]remeditation is more than a mere intent to kill; it is a fully formed conscious purpose to kill,” which “may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.”

Courts look at “the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.” In White, a St. Lucie County case, the defendant fired six shots at a pursuing car from 50 to 60 feet with no statements, plan, prior hostility, or injury. The court held that was not enough for premeditation and reduced two attempted first-degree murder convictions to attempted second-degree murder. The same premeditation standard applies in murder cases. When premeditation fails, the case often becomes second-degree murder or manslaughter, which our post on second-degree murder vs. manslaughter in Florida explains.

The rules on appeal changed in 2020. In Bush v. State, 295 So. 3d 179 (Fla. 2020), the Florida Supreme Court abandoned the special rule that a wholly circumstantial conviction could not stand unless the evidence was “inconsistent with any reasonable hypothesis of innocence,” calling it “unwarranted, confusing, and out of sync.” Appellate courts now ask whether “a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” The jury’s reasonable doubt standard did not change, so our attorneys at The Brancato Law Firm make the premeditation fight at trial, where it counts most.

How does felony murder work in Florida?

Felony murder makes a killing first-degree murder when it happens during one of the felonies listed in section 782.04(1)(a)2., even with no intent to kill. The list includes drug trafficking, arson, sexual battery, robbery, burglary, kidnapping, escape, aggravated child abuse, aggravated abuse of an elderly person or disabled adult, aircraft piracy, a destructive device or bomb, carjacking, home-invasion robbery, aggravated stalking, murder of another person, resisting an officer with violence, aggravated fleeing or eluding with serious bodily injury or death, terrorism, and human trafficking.

A co-felon’s unplanned act can be a defense. Florida’s standard jury instruction 3.6(l) defines an independent act as a crime by another person “1. which the defendant did not intend to occur, and 2. in which the defendant did not participate, and 3. which was outside of and not a reasonably foreseeable consequence of the common design or unlawful act contemplated by the defendant.” In Gary v. State, 330 So. 3d 118 (Fla. 2d DCA 2021), a Pinellas County felony murder case charged as third-degree murder, the defendant testified he arranged only a marijuana buy and his companion unexpectedly pulled a gun. The Second District reversed because the judge refused the independent act instruction, holding that “[a] defendant is entitled to an instruction on his theory of defense however flimsy the evidence.”

Jury instructions decide these cases more often than people expect. In Cordell v. State, No. 2D2024-1370 (Fla. 2d DCA June 19, 2026), a Hillsborough County case, the Second District reversed convictions for third-degree murder and attempted felony murder because the jury received a forcible-felony instruction that “potentially vitiated” the defendant’s self-defense claim. Our attorneys at The Brancato Law Firm renew objections on the record when an instruction is actually read to the jury.

What are the penalties for first-degree murder in Florida?

For an adult, first-degree murder carries only two possible sentences: death, or life imprisonment without parole. Section 775.082(1)(a), Florida Statutes provides that the person is punished by death if the penalty proceeding so determines, “otherwise such person shall be punished by life imprisonment and shall be ineligible for parole.” The judge has no lower option after a first-degree murder conviction, which is why a conviction for a lesser offense is often the realistic goal.

Pretrial release is also limited. Under Article I, Section 14 of the Florida Constitution, a person charged with a capital offense can be held without bond when “the proof of guilt is evident or the presumption is great.” In State v. Arthur, 390 So. 2d 717 (Fla. 1980), the Florida Supreme Court held that the State carries that burden and that “[s]imply to present the indictment or information is not sufficient.” Our attorneys at The Brancato Law Firm use that hearing, known as an Arthur hearing, both to seek release and to learn the State’s evidence early.

How does a Florida death penalty case work?

A Florida death penalty case runs in stages, and the defense can affect the outcome at each one. The table below follows section 782.04(1)(b) and section 921.141, Florida Statutes.

The 8-to-4 rule came from chapter 2023-23, Laws of Florida, approved April 20, 2023, which replaced the unanimous death recommendation. In Hunt v. State, 428 So. 3d 43 (Fla. 2025), a Bay County case in which the jury unanimously found five aggravators and recommended death 10 to 2, the Florida Supreme Court upheld the rule against Sixth Amendment, Eighth Amendment, and ex post facto challenges, reasoning that “a jury’s recommendation is not equivalent to a verdict.” Justice Labarga, concurring in the result, wrote that the rule “renders Florida’s requirement the least demanding nationally.”

Section 921.141(6) lists the aggravating factors, including a prior violent felony, a killing during an enumerated felony, pecuniary gain, a killing that was especially heinous, atrocious, or cruel, and a cold, calculated, and premeditated killing. In 2025 the Legislature added factors for victims gathered for a school, religious, or public government activity (chapter 2025-79) and for a killing of a head of state (chapter 2025-138). Mitigation can include the defendant’s age, mental or emotional disturbance, impaired capacity, a minor role, and “any other factors in the defendant’s background.” Our attorneys start the mitigation investigation at the beginning of the case, because a full history presented to the prosecutor before the notice deadline can matter.

How often are murder charges and executions happening in Florida?

Murder arrests fell in Hillsborough County and statewide in 2025. FDLE arrest data reported by Florida Health CHARTS show 186 murder arrests in Hillsborough County in 2025, compared with 191 in 2024. Statewide, Florida recorded 1,974 murder arrests in 2025, down from 2,248 in 2024. These counts include all degrees of murder, not only first-degree charges.

Executions are at historic levels. In 2025, Florida carried out 19 executions, a state record and 40% of the 47 executions in the United States, according to the Death Penalty Information Center’s 2025 year-end report. Through October 20, 2026, Florida had carried out 18 executions in 2026, more than half of the 31 executions nationwide, the Associated Press reported in a story published by CBS Miami.

What are the defenses to a first-degree murder charge?

The strongest defense depends on the theory the State charges, but most first-degree murder defenses fall into five groups. Our attorneys at The Brancato Law Firm often pursue more than one at once:

1. Justification. Self-defense can end the case before trial through a Stand Your Ground motion; our post on the Stand Your Ground immunity hearing explains the process.
2. Identity and forensic evidence. We retain independent experts and file Daubert motions, which ask the judge to exclude expert testimony that is not reliable, against weak DNA, firearms, or digital evidence.
3. No premeditation. Under the White factors, the evidence may support only second-degree murder or manslaughter.
4. No felony-murder link. The underlying felony may be unproven, or the killing may be a co-felon’s independent act.
5. Unreliable witnesses. Cellmate testimony is a common source of error; see our post on fighting jailhouse informant testimony in Florida.

Homicide cases account for most exonerations. The National Registry of Exonerations 2025 Annual Report found that 51 of the 97 exonerations recorded in 2025, or 53%, were homicide cases, and exonerees lost an average of 14.2 years. The Registry’s county data, as of September 6, 2026, lists 11 exonerations from Hillsborough County.

Real results in homicide cases

Past results do not guarantee future outcomes. More results are on our case results page.

How should a family choose a lawyer for a first-degree murder case?

Choose a lawyer by trial record and capital qualifications, and ask who will actually prepare and try the case. Rule 3.112 applies to “any trial in which the defendant is charged with a crime punishable by death unless the death penalty is waived by the state on the record,” a definition broadened in November 2025 by In re Amendments to Florida Rules of Criminal Procedure – 2025 Legislation, 422 So. 3d 123 (Fla. 2025). Lead counsel should have at least 5 years of criminal litigation experience, lead counsel experience in at least 9 serious and complex jury trials, experience in at least 2 cases where the death penalty was sought, familiarity with expert witnesses, proficiency in mitigation, and 12 hours of capital defense education within the last 2 years. Florida offers no capital defense certification, so the rule’s standards are the measure.

Our post on choosing a death penalty qualified criminal defense lawyer in Tampa Bay goes deeper, and our post on what a homicide defense attorney costs in Tampa explains fees. Rocky Brancato also wrote a book for families in this position, “How to Choose a Major Crimes Attorney, or Any Criminal Defense Attorney for That Matter,” and you can read a free version of the book on our site.

What should you do after a first-degree murder arrest?

Say nothing about the case to anyone except your lawyer, and get counsel involved before first appearance if possible. After a Hillsborough County arrest, first appearance happens within 24 hours, and the person is held at the Orient Road Jail. Do not discuss the case with cellmates, on jail phone calls, or in visits. The 45-day death notice clock starts at arraignment, so the defense investigation, including mitigation, should begin right away. Our Hillsborough County criminal defense attorney page explains the local process, and our pre-file advocacy helps people who learn they are suspects before an arrest.

Frequently Asked Questions About First-Degree Murder Charges in Florida

Can a first-degree murder charge be dropped or reduced in Florida?

Yes, a first-degree murder charge can be dismissed, reduced to second-degree murder or manslaughter, or defeated at trial when the evidence of premeditation, identity, or the felony-murder link falls short. The Brancato Law Firm has obtained a reduction to manslaughter on imperfect self-defense in a second-degree murder case, and our homicide defense page describes how we approach these cases.

What is the difference between first- and second-degree murder in Florida?

First-degree murder requires premeditation, a listed felony, or a qualifying drug distribution, and a killing that lacks those elements may be second-degree murder or manslaughter instead. Our attorneys at The Brancato Law Firm explain the line in our post on second-degree murder vs. manslaughter.

Does a Florida jury have to be unanimous to recommend the death penalty?

No, since April 20, 2023 at least 8 of 12 jurors must vote for death, although the jury must find each aggravating factor unanimously. The Brancato Law Firm prepares the penalty phase from the start, since a recommendation of life binds the judge.

Can you get bond on a first-degree murder charge in Florida?

Sometimes, because the State can hold a person charged with a capital offense without bond only if the proof of guilt is evident or the presumption is great. Our attorneys at The Brancato Law Firm demand an Arthur hearing under State v. Arthur to make the State meet that burden.

Can a getaway driver be charged with first-degree murder in Florida?

Yes, under the felony murder rule a participant in a listed felony such as robbery can be charged when a death occurs, even without intending it. The Brancato Law Firm examines whether the killing was an independent act outside the plan, the defense the Second District protected in Gary v. State.

Does the State always seek the death penalty in a first-degree murder case?

No, the prosecutor must decide and file notice within 45 days after arraignment, and without that notice the only sentence is life without parole. Our attorneys at The Brancato Law Firm use that window to gather mitigation and present it before the decision is made.

The 45-day clock starts at arraignment

The State has 45 days after arraignment to decide whether to seek death, and the work our attorneys do in that window can shape the rest of the case. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will begin the defense and mitigation investigation, retain the right experts, and challenge the State’s evidence from the first hearing. Call (813) 727-7159 for a free, confidential consultation. 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 about our Spanish and Haitian Creole criminal defense services.

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

Hit-and-run cases are often decided by one fact the State has to prove beyond a reasonable doubt: that the driver actually knew there had been a crash. Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, has spent more than 25 years in Hillsborough County courtrooms watching that question shape these cases from the first investigation to the verdict. Our attorneys defend leaving the scene charges across Hillsborough, Pinellas, and Pasco Counties, from property damage misdemeanors to fatal-crash felonies, and we often step in while police are still investigating.

Is leaving the scene of an accident a felony in Florida?

Yes, when the crash caused injury or death. Section 316.027, Florida Statutes requires a driver to “immediately stop” and “remain at the scene of the crash until he or she has fulfilled the requirements of s. 316.062.” The degree of the felony depends on the harm. A crash with only property damage falls under section 316.061, Florida Statutes and is a misdemeanor.

The maximums come from section 775.082, Florida Statutes and section 775.083. Our Tampa criminal traffic lawyer team checks the injury classification first, because the line between “injury” and “serious bodily injury” can move a case a full felony degree.

What does Florida law require a driver to do after a crash?

Stop, stay, share information, and help anyone hurt. Under section 316.062, Florida Statutes, the driver must give a name, address, and vehicle registration, show a license on request, and “render to any person injured in the crash reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital … if it is apparent that treatment is necessary, or if such carrying is requested.” If no one is able to receive the information and no officer is present, the driver must report the crash “forthwith” to the nearest police office.

Two parts of that statute matter in defense work. Section 316.062(3) says the duty does not require information that “would violate the privilege of such person against self-incrimination.” Section 316.062(4) makes a violation of section 316.062 by itself a noncriminal traffic infraction. The crime comes from leaving before the duties are met.

A driver cannot leave first and report later. In Paleveda v. State, No. 2D2024-0980 (Fla. 2d DCA Jan. 23, 2026), a Hillsborough County fatal crash case, the defense asked for a jury instruction allowing a driver to leave “to find the nearest police station so he could report the accident.” The Second District held the judge properly refused it, because the driver had to stay and determine the victim’s condition first. “Paleveda did not stop. He ran,” the court wrote, and the conviction was affirmed “in all respects.” Our attorneys at The Brancato Law Firm build the defense around what the driver knew and did in those first minutes.

What does the State have to prove in a leaving the scene case?

The State must prove that the defendant was the driver, that the driver knew a crash occurred, that the driver knew or should have known someone was hurt (for the felony tiers), and that the driver willfully failed to stop, remain, or give information and aid. Fault for the crash is not an element. A driver who did nothing wrong in the collision can still be convicted for leaving.

Knowledge of the crash must be actual knowledge. In State v. Dorsett, 158 So. 3d 557 (Fla. 2015), the Florida Supreme Court held that “the State must prove beyond a reasonable doubt that the driver had actual knowledge of the crash, an essential element of the crime.” The standard jury instruction had allowed a conviction if the driver “knew or should have known” of the crash, and the Court held that wording was wrong as to the crash.

The injury element uses a lower standard. Under Dorsett, the State may prove knowledge of injury by showing the driver knew or reasonably should have known of it “from the nature of the accident.” That split matters at trial. A light impact at night, loud music, or a collision with the rear of a long vehicle can each create doubt that the driver knew anything happened, and our attorneys at The Brancato Law Firm reconstruct exactly what the driver could see and hear.

What is the mandatory minimum for leaving the scene of a fatal crash?

Four years in prison. Section 316.027(2)(c) provides that a driver who leaves a crash involving a death “shall be sentenced to a mandatory minimum term of imprisonment of 4 years.” The same 4-year minimum applies if the driver was also DUI. The minimum, the serious bodily injury tier, and the 3-year revocation came from the Aaron Cohen Life Protection Act, chapter 2014-225, Laws of Florida.

The minimum can sometimes be avoided. Under section 316.027(2)(g), the defense may move to depart from the 4-year minimum unless the violation involved DUI. The State may object, and the court may depart only if the minimum “would constitute or result in an injustice,” with reasons stated in open court. A driver arrested on a fatal leaving the scene charge who has certain prior convictions, including a prior leaving the scene or DUI conviction, “shall be held in custody until brought before the court for admittance to bail.”

Sentencing points are another fight. In Chang v. State, No. 2D2023-2090 (Fla. 2d DCA May 14, 2025), a Sarasota County driver pleaded to leaving the scene of a fatal crash and tampering. The judge scored 120 victim-injury points under section 921.0021(7)(e), which allows those points when “the offender caused victim injury,” even though leaving the scene did not cause the death. The Second District upheld the statute against a facial challenge and affirmed a sentence of 15 years in prison followed by probation. The lesson is to contest causation-based points rather than stipulate to them. When the State also claims the driver caused the death, the case may overlap with DUI manslaughter or vehicular homicide, which our attorneys defend as well.

What other penalties come with a leaving the scene conviction?

License revocation, restitution, and possible enhancements:

1. Revocation. Section 316.027(2)(e) requires revocation “for at least 3 years” for any injury, serious bodily injury, or death conviction. Before reinstatement, the driver must complete a victim’s impact panel or an approved vulnerable road user course.
2. Restitution. For the felony tiers, the court “shall order the driver to make restitution to the victim for any damage or loss unless the court finds clear and compelling reasons not to.” Since October 1, 2025, chapter 2025-14, Laws of Florida also lets a court order restitution for property damage in a section 316.061 case when the driver “caused or otherwise contributed to the crash.”
3. Vulnerable road user enhancement. If the victim was a pedestrian, bicyclist, motorcyclist, scooter rider, road worker, or another vulnerable road user, the offense is “ranked one level above” its normal ranking under section 316.027(2)(f).

Our attorneys at The Brancato Law Firm check each of these before any plea discussion, because a 3-year revocation can matter as much as the sentence.

How do police build a hit-and-run case?

Usually from the scene outward. Investigators start with what was left behind, such as vehicle parts and paint transfer. They canvass for home and business cameras along the route, then identify the vehicle and its registered owner. The last step is often an interview at the owner’s front door, before any arrest.

That interview is where many cases are made. The registered owner is not always the driver, and the officer at the door is trying to close that gap with your own words. Our post on the accident report privilege explains how Florida treats statements made for a crash report. If a detective has called or left a card, our representation before charges are filed can handle the contact, gather the video and phone records that help you, and speak with the State Attorney’s Office before a charging decision.

How common are hit-and-run crashes in Florida?

Common. In 2023, Florida recorded 105,092 hit-and-run crashes, which killed 276 people and caused 954 incapacitating injuries and 21,702 other injuries, according to the FLHSMV Traffic Crash Facts Annual Report 2023. The same report counted 107,844 hit-and-run crashes in 2022 and 109,646 in 2021.

National research shows why identity is so often disputed. The AAA Foundation for Traffic Safety reported in Understanding the Increase in Fatal Hit-and-Run Crashes (March 2026) that hit-and-run deaths nationwide peaked at 2,972 in 2022, 7% of all traffic deaths, and that nearly 80% of those deaths happened in darkness. Among hit-and-run drivers who were identified, over half were driving a vehicle they did not own. Our attorneys at The Brancato Law Firm never assume the owner was the driver.

How do our attorneys fight a leaving the scene charge?

We test every element, then work on the charge level and the sentence:

In practice, that means our attorneys:

1. Reconstruct what the driver perceived, using the vehicle damage, lighting, speed, and sound.
2. Pin down who was driving, with cell phone location, toll and camera records, and witnesses.
3. Document what the driver did do, such as stopping briefly, calling 911, or returning.
4. Challenge the medical proof that an injury was “serious bodily injury.”
5. Prepare a departure case early in fatal cases with no DUI allegation, with family, employment, and remorse evidence.

What should you do if police want to talk to you about a crash?

Call a lawyer before you answer questions. A detective’s request for “your side of the story” usually means the investigation already points at you or your car. In Hillsborough County, a person arrested on a leaving the scene charge sees a judge at first appearance within 24 hours, held at the Orient Road Jail, and the State Attorney’s Office for the 13th Judicial Circuit files the charging information. Our Hillsborough County criminal defense attorney team handles those first appearances. Until then:

1. Do not explain the damage to your car to police, insurers, or friends.
2. Do not repair, sell, or hide the vehicle.
3. Save your phone records and any video from the time of the crash.
4. Let your lawyer arrange any surrender, which can affect bond.

If the case also involves a police chase, see our guide on fleeing and eluding in Florida, since fleeing an officer while leaving a crash that caused injury or property damage is charged as aggravated fleeing.

Frequently asked questions about leaving the scene in Florida

Can leaving the scene charges be dropped in Florida?

Yes, when the State cannot prove the driver knew of the crash, cannot prove who was driving, or the driver’s own actions met the duties in section 316.062. The Brancato Law Firm often presents that evidence to prosecutors through our pre-file advocacy before a charge is filed.

Can I be charged with leaving the scene if the crash was not my fault?

Yes. Fault is not an element; the duty to stop applies to every driver involved, and our attorneys at The Brancato Law Firm focus instead on knowledge, identity, and what the driver actually did after the impact.

Can I leave a crash to go report it to the police?

Not before checking on anyone who may be hurt. In Paleveda v. State, the Second District rejected a jury instruction that would have let a driver leave to find a police station first, and our attorneys at The Brancato Law Firm explain how that ruling applies to your timeline. Our post on the accident report privilege covers what to say afterward.

Is there mandatory prison for leaving the scene with an injury in Florida?

No mandatory minimum applies to the injury or serious bodily injury tiers; the 4-year minimum applies only when someone died. The Brancato Law Firm works the scoresheet and the facts in injury cases to argue for a sentence without prison, as described on our criminal traffic defense page.

How long is your license revoked for leaving the scene in Florida?

At least 3 years for a conviction involving injury, serious bodily injury, or death, under section 316.027(2)(e). Our attorneys at The Brancato Law Firm consider the revocation in every plea discussion, because it can cost a client a job.

Should I turn myself in after leaving the scene of an accident?

Talk to a lawyer first, so the surrender is arranged and nothing you say adds to the State’s case. The Brancato Law Firm can contact the investigating agency on your behalf, as explained on our Hillsborough County criminal defense page.

Contact our Tampa leaving the scene defense attorneys

If a detective has left a card at your door or called about a crash, the investigation is already under way. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will handle the police contact, gather the video and phone records, and press the knowledge and identity questions from the start. Call (813) 727-7159 for a free, confidential consultation. 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 about our Spanish and Haitian Creole criminal defense services.

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.

If you were arrested for burglary in Hillsborough County, the case against you probably rests less on what was taken than on what the State says you intended when you walked in. My name is Rocky Brancato. Before I founded The Brancato Law Firm, P.A., a Tampa criminal defense firm, I served in the Major Crimes Unit of the Hillsborough County Public Defender’s Office, and I have spent more than 25 years in Hillsborough County courtrooms. Our attorneys defend burglary charges of every degree in Hillsborough, Pinellas, and Pasco Counties, from car burglaries to armed burglary of a dwelling, and we start with the intent evidence and the exact place the State says you entered.

What does the State have to prove in a Florida burglary case?

The State must prove that you entered or remained in a dwelling, structure, or conveyance with the intent to commit an offense inside. For offenses after July 1, 2001, section 810.02(1)(b), Florida Statutes, defines burglary two ways:

1. Entering “a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter.”
2. Remaining in a dwelling, structure, or conveyance, even after a licensed or invited entry, “a. Surreptitiously, with the intent to commit an offense therein; b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or c. To commit or attempt to commit a forcible felony.”

The three “remaining in” theories have a history. In Delgado v. State, 776 So. 2d 233 (Fla. 2000), the Florida Supreme Court held that after a consensual entry, “remaining in” covered only surreptitious remaining. The Legislature responded with the current text for offenses after July 1, 2001. So when a case begins with an invitation, such as a guest, a contractor, or a former partner, our attorneys ask which of the three theories the State is using and whether it can prove it. Our Hillsborough County criminal defense attorney team builds the defense around that answer.

What counts as a dwelling, structure, or conveyance?

Each term has a statutory definition, and the definition often decides the degree. Under section 810.011, Florida Statutes:

The statute does not define curtilage, and the courts require an enclosure. In State v. Hamilton, 660 So. 2d 1038 (Fla. 1995), two men took outboard motors from a boat in a backyard bordered only by “several unevenly spaced trees,” and the homeowner shot one of them. The Florida Supreme Court held that the burglary statute carries forward “the common law requirement of some form of an enclosure in order for the area surrounding a residence to be considered part of the ‘curtilage.'” The burglary charge, and the felony murder charge built on it, could not stand.

A porch is different, because the statute names it. In Sublett v. State, 403 So. 3d 239 (Fla. 4th DCA 2025), a homeowner entered the screened porch she rented month to month to a tenant, who had told her repeatedly to “stay out,” and took part of the tenant’s medical marijuana. The Fourth District held the porch was a dwelling and that the tenant’s occupancy was “possession which is rightful as against the burglar,” so owning the house did not authorize the entry. Our post on whether a porch is a dwelling under Florida burglary law covers the porch cases in more detail.

What are the penalties for burglary in Florida?

The degree depends on what kind of place was entered, whether anyone was inside, and whether there was a weapon, an assault, or damage. The table reflects section 810.02 as it reads in 2026; the text has not changed since 2021.

Firearms add a mandatory minimum. Burglary is on the 10-20-Life list in section 775.087(2)(a), Florida Statutes, so actual possession of a firearm during a burglary carries a 10-year minimum, except burglary of a conveyance, which carries 3 years. Our guide to Florida’s 10-20-Life law explains the higher tiers. The Brancato Law Firm checks every fact the State uses to move a case up the table, because the difference between “occupied” and “unoccupied,” or a dwelling and a structure, can be 10 years of exposure.

What happens if a burglary happens during a state of emergency?

The charge goes up one degree if the burglary was made easier by the emergency. Under the closing paragraphs of section 810.02(3) and (4), a burglary committed during a riot, or in a county under a state of emergency declared by the Governor, is raised one degree when “the perpetration of the burglary is facilitated by conditions arising from the emergency.” Those conditions are “civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel.” A second-degree burglary becomes a first-degree felony, and a third-degree burglary becomes a second-degree felony.

The same paragraphs add a release rule: a person arrested for a burglary under these conditions “may not be released until the person appears before a committing magistrate at a first appearance hearing.” During a Governor-declared emergency, such as a hurricane, section 810.011 also treats the remnants of a damaged building in the covered area as a structure or dwelling “regardless of absence of a wall or roof.” Our attorneys at The Brancato Law Firm make the State prove the link between the emergency and the alleged burglary, which the statute requires and arrest reports often skip.

How do you fight a burglary charge in Florida?

You fight a burglary charge by attacking the element the State proves least directly, which is usually intent. These are the defenses our attorneys raise most often:

1. No intent at the time of entry. In C.G. v. State, No. 3D24-1813 (Fla. 3d DCA Aug. 27, 2025), a juvenile case, the Third District held that “the State must establish the juvenile’s intent to commit an offense at the time he enters,” and reversed because “the State did not present evidence of intent to commit an offense therein when C.G. entered the yard.” The burglary was reduced to simple battery. A crime committed after an entry does not, by itself, prove the person entered intending it.
2. The entry was not stealthy. The State often relies on the inference in section 810.07, Florida Statutes: entry “stealthily and without consent of the owner or occupant thereof is prima facie evidence of entering with intent to commit an offense.” In Lanzo v. State, 73 So. 3d 817 (Fla. 5th DCA 2011), the defendant was seen “at the open garage door of a house on a residential street during daylight hours and in full view of any passerby,” then walked away and spoke with the homeowner and police. The Fifth District held that “stealthily” means “surreptitious, furtive, or sly,” that the jury should not have heard the instruction, and ordered a new trial. An entry through an open door in daylight may not be stealthy.
3. The place was open, or you were invited. The statute excludes premises “open to the public” and entries where “the defendant is licensed or invited to enter.” The State must then prove one of the three remaining-in theories.
4. The place does not qualify. An unenclosed yard is not curtilage under Hamilton. If the State cannot prove a roof, an enclosure, or that a vehicle was a conveyance, the burglary charge fails or drops a degree.
5. The State has the wrong person. Video, fingerprints, and phone location records must connect the client to the entry itself, not just to the neighborhood or to property found later.

Companion counts need their own proof. In Russell v. State, No. 2D2024-1373 (Fla. 2d DCA Aug. 28, 2026), a Tampa case, a homeowner found two strange bicycles at his back gate, and Tampa police called out Russell and a codefendant carrying watches, cameras, and other items. The appellate court left the burglary conviction in place (it was not challenged) and reversed the grand theft count because there was no testimony about depreciation or fair market value, reducing it to second-degree petit theft. Our guide on how to fight a theft charge in Florida explains how value is proven.

Is trespass a lesser charge than burglary?

Yes. Trespass is the most common lesser offense in a burglary case, and it is usually a misdemeanor. The difference is intent: trespass needs only an unauthorized entry or refusal to leave, while burglary requires intent to commit an offense inside.

The unenclosed yard is trespass territory. Section 810.09 covers entering “the unenclosed curtilage of a dwelling” with intent to commit an offense there. Florida also added a new trespass felony in 2025: chapter 2025-30, Laws of Florida, created section 810.09(2)(k), which makes it a third-degree felony to trespass on an area secured by law enforcement and posted as a designated restricted site. Our post on trespass in Florida covers those charges, and The Brancato Law Firm often argues for trespass as the right outcome when intent cannot be proven.

How common are burglary arrests in Hillsborough County?

Common, though less so than a decade ago. In 2025, Hillsborough County recorded 1,889 burglary arrests, according to FDLE arrest data published by Florida Health CHARTS, down from 2,531 in 2016, a 25.4% drop. Florida recorded 19,967 burglary arrests in 2025. Hillsborough’s 2025 arrest rate was 119.9 per 100,000 residents, compared with 85.4 per 100,000 for Florida as a whole. These figures count arrest events, not reported burglaries.

Many burglary accusations involve people who know each other. A Bureau of Justice Statistics report by Shannan Catalano, Victimization During Household Burglary (2010), found that about 7% of household burglaries from 2003 to 2007 involved violence, and in those violent burglaries the victim knew the offender 65% of the time. When the accused and the accuser have a history, consent, invitation, and withdrawn permission become the center of the case, and our attorneys at The Brancato Law Firm gather the texts and witnesses that show it.

What happens after a burglary arrest in Hillsborough County?

A person arrested for burglary in Hillsborough County sees a judge at first appearance within 24 hours, usually at the Orient Road Jail. Burglary is on the list of charges that require a first appearance before release, and burglary of a dwelling is a “dangerous crime,” so the judge cannot grant nonmonetary release at that hearing. The State Attorney’s Office for the 13th Judicial Circuit then decides what to file in the charging information, and that decision is the first chance to move the case from burglary to trespass.

Take four steps after a burglary arrest:

1. Say nothing about why you were there. Intent is the State’s hardest element, and a casual explanation can supply it.
2. Preserve your own evidence. Texts showing an invitation, a key, a lease, or a work order can defeat the case.
3. Identify video now. Doorbell, neighborhood, and business cameras often overwrite in days.
4. Get a lawyer involved before the filing decision. Our attorneys contact the prosecutor with the facts that support a lesser charge or no charge.

Frequently asked questions about burglary charges in Florida

Can burglary charges be dropped in Florida?

Yes. Burglary charges can be dropped or reduced to trespass when the State cannot prove intent at entry, when the place does not qualify, or when an invitation or consent defeats the entry element. The Brancato Law Firm presents those facts to the State Attorney’s Office before the filing decision whenever possible.

Is entering a fenced backyard burglary in Florida?

It can be. An enclosed yard is curtilage, so entering it with intent to commit an offense can be charged as burglary of the dwelling, while an unenclosed yard is not curtilage under State v. Hamilton. Our attorneys at The Brancato Law Firm look at photos and surveys of the fence line, because a gap or missing enclosure can change the charge.

Can you be charged with burglary of your own home in Florida?

Yes, if someone else has the right to occupy it. In Sublett, a homeowner was convicted of burglary for entering the porch she rented to a tenant, and The Brancato Law Firm reviews leases and landlord-entry rights in these cases, as our porch burglary post explains.

Is breaking into a car a felony in Florida?

Yes. Burglary of an unoccupied conveyance is a third-degree felony, and burglary of a conveyance with a person inside is a second-degree felony. The Brancato Law Firm checks whether the State can prove entry and intent, keeping in mind that under section 810.011(3) “to enter a conveyance” includes taking apart any portion of it, as described on our Hillsborough County criminal defense page.

What is the difference between burglary and trespass in Florida?

Burglary requires intent to commit an offense inside, and trespass does not. Our attorneys at The Brancato Law Firm often negotiate or try burglary cases toward trespass, which our trespass guide covers in full.

Should I talk to a detective who wants to ask about a burglary?

No, not without a lawyer, because intent is usually proven from the accused person’s own words and an interview can create the evidence the State lacks. The Brancato Law Firm provides pre-file advocacy and can speak with the detective on your behalf.

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

Talk to our Tampa burglary defense attorneys

Doorbell and neighborhood camera video often disappears within days, and the filing decision can come soon after. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will identify the video, gather the texts and documents that show permission, and press the State on intent before it files. Call (813) 727-7159 for a free, confidential consultation, and call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read about our Spanish and Haitian Creole criminal defense services.

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.

To convict someone of identity theft under Florida’s main statute, a prosecutor must prove more than that another person’s card number or Social Security number turned up in a phone or wallet. The State must prove the use, or the intended use, was willful, fraudulent, and without consent, and the heaviest penalties depend on numbers a jury has to find. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. Our attorneys defend identity theft, unlawful possession of personal identification information, and related fraud charges in Hillsborough, Pinellas, and Pasco Counties, often while the case is still an investigation.

What does the State have to prove in a Florida identity theft case?

The State must prove that you used, or possessed with intent to use, another person’s identifying information fraudulently, willfully, without authorization, and without consent. Under section 817.568(2)(a), Florida Statutes, a person commits the offense if he or she “willfully and without authorization fraudulently uses, or possesses with intent to fraudulently use, personal identification information concerning another person without first obtaining that person’s consent.”

The definition of personal identification information is broad. It means “any name or number that may be used, alone or in conjunction with any other information, to identify a specific person,” including a name, address, phone number, Social Security number, date of birth, driver license number, bank account, credit or debit card number, PIN, biometric data, and medical records. “Authorization” means “empowerment, permission, or competence to act.” Each element is a separate fight, and our Tampa white collar crime attorney team tests them one at a time.

What are the penalties for identity theft in Florida?

The degree depends on the dollar amount involved or the number of people whose information was used. Section 817.568(2) sets this ladder:

The maximums come from section 775.082, Florida Statutes. The dollar amount can be “the pecuniary benefit, the value of the services received, the payment sought to be avoided, or the amount of the injury or fraud perpetrated.” Under subsection (3), if a mandatory minimum is longer than the maximum the law otherwise allows, “the mandatory minimum sentence must be imposed.” The statute’s text has not changed since 2021. Our post on felony degrees in Florida explains how these levels interact with the sentencing scoresheet.

Do the mandatory minimums apply if I only possessed the information?

No. The 3-, 5-, and 10-year minimums in section 817.568(2)(b) and (2)(c) apply only when the person “fraudulently uses” the information. Possession with intent to use stays at subsection (2)(a), a third-degree felony with no minimum. That one word, uses, is often the most important line in the case.

When the minimum applies, the judge cannot skip it. In State v. Barnhart, 310 So. 3d 132 (Fla. 1st DCA 2020), a Leon County jury found fraud of $5,000 or more, and the trial judge held the three-year minimum “in abeyance.” The First District reversed: “As the Legislature has prescribed a three-year mandatory minimum, the trial court had no authority to do otherwise.”

The State must also charge the threshold and prove it to the jury. In Roodbergen v. State, No. 2D19-3250 (Fla. 2d DCA Nov. 5, 2021), a Manatee County case involving a victim 60 or older, the Second District held the three-year minimum applied “because the information charged and the jury, by special verdict, specifically found beyond a reasonable doubt that both of those counts involved a pecuniary benefit of $5,000 or more.” The Second District hears appeals from Hillsborough, Pinellas, and Pasco Counties. Our attorneys at The Brancato Law Firm read the charging document and the proposed verdict form for exactly this point, because a dollar figure the jury never found cannot support a minimum.

Subsection (13) gives the prosecutor one more tool: the State may move to “reduce or suspend the sentence” of a person who provides “substantial assistance,” and the motion may be heard in camera.

Which victims make identity theft a more serious charge?

Several victim categories and methods create separate second-degree felonies or raise the degree. Section 817.568 lists them in separate subsections:

The statute states no mandatory minimum for subsections (6), (7), and (11). In Roodbergen, the Second District expressly left open whether (2)(b) and (6) “prescribe separate enhancements or separate offenses.” The Brancato Law Firm checks which subsection the State actually charged, because the wrong one changes the sentencing range.

What is unlawful possession of personal identification information?

It is a separate, lesser crime that requires no intent to defraud. Section 817.5685, Florida Statutes, makes it unlawful “to intentionally or knowingly possess, without authorization, the personal identification information of another person in any form, including, but not limited to, mail, physical documents, identification cards, or information stored in digital form.” This is often the charge when someone is found holding other people’s cards or mail.

The number of people decides the degree. Possessing the information of “four or fewer persons” is a first-degree misdemeanor. Five or more is a third-degree felony, and possession of five or more people’s information, “unless satisfactorily explained, gives rise to an inference” that it was knowing and unauthorized. The statute gives two affirmative defenses: a “reasonable belief that such possession was authorized by law or by the consent of the other person,” and information obtained from a source “open or available to the general public or from a public record.” Parents, guardians, government employees, and lawful businesses acting in the ordinary course are excluded.

Juries return this lesser charge. In King v. State, No. 4D2024-1060 (Fla. 4th DCA Oct. 29, 2025), a Broward jury convicted on the misdemeanor possession lesser, finding information of “at most, two individuals,” yet the trial court imposed 3 years in prison and 2 years of probation. The State conceded he “was adjudicated guilty and sentenced under the wrong statute,” and the Fourth District reversed for resentencing. Our attorneys at The Brancato Law Firm count the victims the State can actually prove, because that count sets the ceiling.

Can the State charge one act as several counts?

Not if the counts rest on a single act. In Fravel v. State, 188 So. 3d 969 (Fla. 4th DCA 2016), the Fourth District held that “section 817.568(2)(a) is a lesser included offense, which would be subsumed by the greater offense of section 817.568(2)(b) if they were directed at a single act.” The two counts in that case survived only because the State proved “two distinct acts,” opening a Chase card and a Capital One card, and tied each count to one account.

Identity theft cases can be charged with many counts drawn from one bank statement. The Brancato Law Firm makes the State identify the specific act behind each count, and counts that duplicate one act can be challenged. Our post on how criminal charges are dropped or dismissed in Florida explains the motion practice.

What costs come with an identity theft conviction?

A plea or verdict brings a $1,001 surcharge that the judge cannot waive. Under section 817.568(12), the surcharge applies “regardless of adjudication,” so it attaches even with a withhold of adjudication. Restitution can include “attorney’s fees incurred by the victim in clearing the victim’s credit history or credit rating,” and the court may order public records corrected.

Those costs sit on top of any restitution for the money itself. Our attorneys at The Brancato Law Firm look at the restitution figure as closely as the criminal charge, because the same dollar amount often drives both.

Where is an identity theft case prosecuted?

It can be prosecuted in any county where an element of the offense happened, including the county where the victim generally resides. For the consent element, section 817.568 presumes the place of consent is the county “where the victim generally resides.” A person who never set foot in Hillsborough County can be charged there if the victim lives there.

In Hillsborough County, felony charges are filed by the State Attorney’s Office for the 13th Judicial Circuit, and an arrest means a first appearance within 24 hours, usually from the Orient Road Jail. Our firm defends these cases in Hillsborough, Pinellas, and Pasco Counties, and our Hillsborough County criminal defense attorney page explains the local court process.

How common is identity theft in Florida?

Florida leads the country in identity theft reports per person. In 2024, Florida consumers filed 115,840 identity theft reports with the Federal Trade Commission, or 528 per 100,000 residents, ranking Florida 1st among the states, according to the FTC’s Consumer Sentinel Network Data Book 2024. Nationally, the FTC received 1,135,291 identity theft reports in 2024. These are consumer reports to the FTC, not arrests or proven crimes.

Most victims never call the police. The Bureau of Justice Statistics report Victims of Identity Theft, 2021 (released 2023) estimated that about 23.9 million people age 16 or older experienced identity theft in the prior 12 months, and only about 7% of victims reported it to police. Because so few victims report, the cases that do reach police can begin with a bank’s fraud department or a personal dispute, and our attorneys at The Brancato Law Firm look closely at who reported it and why.

How do our attorneys fight an identity theft charge?

We start with consent and authorization, then make the State prove every number. Our attorneys work through six questions:

1. Was there consent or authorization? A spouse, roommate, employee, or business partner who had permission to use an account was not acting without consent, and a later falling-out does not change what was agreed at the time.
2. Who actually used the information? Shared devices, shared accounts, and shared addresses make the identity of the user a real question. Login records, IP addresses, store video, and delivery records must point to the client.
3. Was the information used or only possessed? Possession with intent is a third-degree felony with no minimum.
4. Can the State prove the amount and the victim count? The 3-, 5-, and 10-year minimums require proof of the threshold to the jury, as Roodbergen holds.
5. Do the counts duplicate one act? Under Fravel, one act cannot support stacked counts.
6. Does a section 817.5685 defense apply? A reasonable belief in consent, or information taken from a public source, is an affirmative defense to the possession charge.

Related charges often travel with identity theft, including grand theft and scheme to defraud. Our guide on how to fight a theft charge in Florida covers how value is proven in those counts.

What should you do if you are under investigation for identity theft?

Stop talking and get a lawyer involved before the State files charges. Identity theft cases are often built from bank records, subpoenas, and interviews over weeks or months, and the investigation is the best time to correct a mistaken assumption about consent or who used an account.

1. Do not explain the transactions to a detective or bank investigator. A statement about permission can be turned into an admission of use.
2. Do not contact the alleged victim. Messages about money or permission become evidence.
3. Save your own records. Texts granting permission, shared account details, and work authorizations can prove consent.
4. Ask about pre-file representation. Our firm’s pre-file advocacy puts the defense’s evidence in front of the prosecutor before the filing decision.

If an arrest has already happened, our guide on what to do after being arrested in Tampa covers the first steps.

Frequently asked questions about identity theft charges in Florida

Can identity theft charges be dropped in Florida?

Yes. Identity theft charges can be dropped or reduced when the evidence shows consent, when the State cannot prove who used the information, or when the dollar amount or victim count falls below a threshold. The Brancato Law Firm brings those records to the prosecutor early, and our post on getting charges dropped or dismissed in Florida explains the process.

Is having someone else’s credit card numbers a crime in Florida?

It can be, even without any use. Under section 817.5685, knowingly possessing another person’s card or account number without authorization is a first-degree misdemeanor for four or fewer people and a third-degree felony for five or more, and The Brancato Law Firm looks first at the statute’s defenses for consent and public sources.

Is there a mandatory minimum sentence for identity theft in Florida?

Only at the higher tiers. Fraudulent use of $5,000 or more, or of 10 or more people’s information, carries a 3-year minimum, rising to 5 and 10 years at $50,000 and $100,000 or 20 and 30 people. Our attorneys at The Brancato Law Firm challenge the amount and the count, as described on our Tampa white collar crime defense page.

What if the person gave me permission to use their information?

Then it is not identity theft under section 817.568, which requires use “without first obtaining that person’s consent.” The Brancato Law Firm gathers the texts, emails, and account records that show permission, because the alleged victim’s memory of the arrangement often changes after a falling-out.

Can a parent be charged with identity theft for using a child’s information in Florida?

Yes. Under section 817.568(7), a parent, legal guardian, or person exercising custodial authority over someone under 18 or 60 or older who willfully and fraudulently uses that person’s information commits a second-degree felony. Our attorneys at The Brancato Law Firm examine whether the use was authorized for the family member’s benefit, and our Tampa white collar crime lawyer page covers related fraud charges.

What should I do if a bank or detective contacts me about identity theft?

Do not give a statement until you have spoken with a lawyer. The Brancato Law Firm provides representation before charges are filed and can respond to the investigator for you.

Call before the investigation becomes a charge

Account logs, login records, and store video are kept for limited periods, and an identity theft investigation can run for months before an arrest. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will collect the records that show consent, test who used the information, and speak with the investigator or prosecutor before the filing decision. Call (813) 727-7159 for a free, confidential consultation; 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 about our Spanish and Haitian Creole criminal defense services.

For more about our defense strategies, visit our Tampa White Collar Crime 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.

A robbery case usually turns on two questions the arrest report does not settle: who took the property, and whether force or fear was really part of the taking. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and I have put both questions to juries across more than 150 jury trials to verdict. Our attorneys defend strong-arm robbery, armed robbery, sudden snatching, and carjacking charges in Hillsborough, Pinellas, and Pasco Counties, starting with the identification evidence, the video, and the exact words of the charging document.

What does the State have to prove in a Florida robbery case?

The State must prove a taking, from the person or custody of another, with intent to deprive, accomplished by force, violence, assault, or putting in fear. Section 812.13(1), Florida Statutes, defines robbery as “the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.”

Robbery does not require a face-to-face grab. Property is in a victim’s “custody” when it is under the victim’s control so that the victim could have prevented the taking without the violence or intimidation. In Acosta v. State, 399 So. 3d 1118 (Fla. 3d DCA 2024), the victims had been thrown off a jet ski that was floating away when the defendant took it, and the Third District held that was still a taking from their custody. Our Tampa violent crime lawyer team tests each element separately, because a missing element often turns a robbery into a theft.

When does force turn a theft into a robbery?

Force turns a theft into robbery when the victim resists and the offender overcomes that resistance. In Robinson v. State, 692 So. 2d 883 (Fla. 1997), the Florida Supreme Court held that “the perpetrator must employ more than the force necessary to remove the property from the person. Rather, there must be resistance by the victim that is overcome by the physical force of the offender.” A snatching without that kind of resistance “amounts to theft rather than robbery.”

Timing matters too. Under section 812.13(3)(b), force counts if it happens “either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.” Robinson recognized that the 1987 amendment adopting this language replaced the older rule that force had to come before or during the taking. Courts analyze an “afterthought” argument “in light of the entire circumstances of the incident,” as the Third District put it in Acosta. Our attorneys at The Brancato Law Firm look closely at the sequence, because force that comes after a clean break, or that was an afterthought unrelated to the taking, can defeat the robbery charge.

What are the degrees and penalties for robbery in Florida?

The degree depends on what the offender carried, not what the offender showed or used. Section 812.13(2) uses the word “carried,” so the State does not have to prove the weapon was displayed.

The prison maximums come from section 775.082, Florida Statutes, and the fines from section 775.083, Florida Statutes. Because carrying a weapon is already an element of armed robbery, the general weapon reclassification in section 775.087(1) does not raise the degree again.

Armed robbery with a firearm or deadly weapon carries a possible life sentence. I meet the Florida Rule of Criminal Procedure 3.112 qualifications to defend capital cases, and our attorneys prepare life-felony robbery cases with the same trial-level investigation.

How is sudden snatching different from robbery?

Sudden snatching is a separate, lesser crime for grabbing property from a person who becomes aware of the taking, with no force beyond what the grab requires. Under section 812.131, Florida Statutes, the State does not have to show that the offender “used any amount of force beyond that effort necessary to obtain possession,” that the victim resisted, or that the victim was injured. The Legislature created it in 1999, after Robinson.

Sudden snatching is a third-degree felony (up to 5 years) when no weapon is carried. It becomes a second-degree felony (up to 15 years) when the offender carried a firearm or other deadly weapon. When a robbery charge rests on a quick grab of a phone, purse, or chain, our attorneys at The Brancato Law Firm ask whether the facts fit sudden snatching or theft instead.

What is carjacking in Florida?

Carjacking is robbery of a motor vehicle. Section 812.133, Florida Statutes, covers taking “a motor vehicle which may be the subject of larceny from the person or custody of another,” with intent to deprive, “when in the course of the taking there is the use of force, violence, assault, or putting in fear.”

Carjacking is a first-degree felony even when no weapon is involved, so it is charged one degree above unarmed robbery. The Brancato Law Firm reviews whether the vehicle was truly in the driver’s custody and whether the force came during the taking or in a separate event.

How does Florida’s 10-20-Life law apply to robbery?

Robbery and attempted robbery are on the 10-20-Life list. Under section 775.087(2)(a), Florida Statutes, a person convicted of robbery who “actually possessed a ‘firearm’ or ‘destructive device'” faces a 10-year mandatory minimum. Discharging the firearm raises the minimum to 20 years, and discharging it and causing “death or great bodily harm” means a minimum of 25 years up to life.

Possession under the statute means “carrying it on the person,” or having the firearm “within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense.” The court cannot withhold adjudication or suspend the sentence, and there is no gain-time or early release before the minimum is served. For the full statute, see our guide to Florida’s 10-20-Life law.

What changed about 10-20-Life sentences in 2025?

The 2025 law kept consecutive minimums mandatory when a person is convicted of several qualifying felonies, and gave judges discretion when a qualifying felony is paired with an unlisted one. Chapter 2025-81, Laws of Florida, effective July 1, 2025, rewrote the consecutive-sentence rules in section 775.087(2). The earlier 2023 text said the court “shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.”

Current paragraph (d) requires the court to impose the minimum “for each qualifying felony offense for which the person is convicted,” and, when there are several, to “impose any such terms of imprisonment consecutively.” New paragraph (e) says that when a qualifying felony is committed “in conjunction with any other felony offense not enumerated,” the court “may impose” the minimum consecutively. Two counts of robbery with a firearm, one for each victim, still mean two minimums served back to back, while a robbery count paired with an unlisted felony leaves the judge a choice. Our attorneys at The Brancato Law Firm check the offense date and the count structure on every case, because they can decide whether a client faces 10 years or 20.

Is a BB gun a deadly weapon in a Florida robbery?

It can be, and the jury decides. In Dale v. State, 703 So. 2d 1045 (Fla. 1997), the defendant said “I have a gun,” and the gun later recovered was a working gas-operated BB or pellet gun that resembled a 9 mm Beretta. The Florida Supreme Court held that whether a BB or pellet gun is a deadly weapon, meaning whether it is “likely to produce death or great bodily injury,” is “a factual question to be answered by the jury in each case.” The Court added that the gun being recovered without BBs, pellets, or a gas cartridge “is not dispositive.”

The victim’s belief about whether the gun was loaded is not the test. The Court in Dale expressly did not decide whether a BB gun is a firearm. Under section 790.001(9), Florida Statutes, a firearm is a weapon that will, is designed to, or may readily be converted to expel a projectile “by the action of an explosive.” That definition matters because the 10-20-Life minimums require a firearm. When the object is a BB gun, a replica, or a stun gun, our attorneys at The Brancato Law Firm challenge which category the State can prove.

Does wearing a mask make a robbery more serious?

Sometimes. Under section 775.0845, Florida Statutes, an offense is reclassified to the next higher degree if the offender “was wearing a hood, mask, or other device that concealed his or her identity.” A third-degree felony becomes a second-degree felony, and a second-degree felony becomes a first-degree felony.

The statute has no step above a first-degree felony. A mask raises strong-arm robbery from a second-degree to a first-degree felony and raises sudden snatching by one degree, but it cannot raise robbery with a weapon or robbery with a firearm, which are already first-degree felonies. The reclassified offense also ranks one level higher on the scoresheet. The Brancato Law Firm checks whether the State can prove the face covering actually concealed identity, which is the statute’s own requirement.

Can a shoplifting arrest become a robbery charge?

Yes. When force or fear enters a shoplifting incident, the State may charge robbery. In Atmore v. State, No. 2D2024-0584 (Fla. 2d DCA Aug. 13, 2025), a Hillsborough County case, a woman shoplifting at a Sunglass Hut brandished what appeared to be a stun gun when the manager told her to stop, kept taking merchandise, and fled. She was convicted of robbery with a weapon. The Second District held she was entitled to an instruction on resisting a merchant as a lesser offense, though it found the error harmless.

Lesser offenses decide many robbery trials. In J.M. v. State, No. 2D2022-3344 (Fla. 2d DCA Jan. 31, 2025), another Hillsborough case, the trial court found the State could not prove intent to deprive in a robbery charge against a juvenile and instead found aggravated assault. The Second District reversed because the petition never alleged an assault with the weapon, and convicting on an uncharged lesser was fundamental error. Our post on how to fight a theft charge in Florida covers retail theft and resisting a merchant.

How many robbery arrests happen in Hillsborough County?

Fewer than a decade ago. In 2025, Hillsborough County recorded 441 robbery arrests, according to FDLE arrest data published by Florida Health CHARTS, down from 757 in 2016, a 41.7% drop. Florida recorded 6,462 robbery arrests in 2025. These figures count arrest events, not reported robberies, and they leave out cases begun by notice to appear or sworn complaint without a physical arrest.

Fewer arrests do not mean lighter cases. Robbery charges in Hillsborough County are filed by the State Attorney’s Office for the 13th Judicial Circuit, and a robbery arrest means a first appearance within 24 hours, usually from the Orient Road Jail. Robbery is a “dangerous crime” for bond purposes, so the judge cannot grant nonmonetary release at first appearance, as our guide to bond hearings in Tampa explains. Our Hillsborough County criminal defense attorney team prepares for that hearing from the first call.

How do our attorneys defend a robbery charge?

We start with the State’s weakest element, which is often identification. Our attorneys work through five questions in every robbery case:

1. Is the identification reliable? The National Research Council’s report Identifying the Culprit: Assessing Eyewitness Identification (2014) found that memory is “highly malleable and continuously evolving” and that witness confidence “can be powerfully swayed by many factors.” Florida’s section 92.70, Florida Statutes, requires lineups to be run by an independent administrator with set instructions, and noncompliance can support a motion to suppress and must be explained to the jury.
2. Does circumstantial evidence really point to the client? In Young v. State, No. 2D2025-0042 (Fla. 2d DCA July 10, 2026), a Hillsborough case, the Second District affirmed the convictions but held that “the prohibition against pyramiding inferences remains a separate and distinct evidentiary principle.” A jury cannot “draw an inference from an inference.”
3. Was there force or fear during the taking? If not, the charge may be theft or sudden snatching under Robinson.
4. What was carried? The weapon category sets the degree and decides whether 10-20-Life applies.
5. What does the charging document allege? Under J.M., the lesser offenses available at trial depend on what the State charged.

Repeat-offender laws raise the stakes. Under section 775.082(9), robbery, carjacking, and home-invasion robbery committed within 3 years of release from prison qualify for prison releasee reoffender sentencing, which means life for a felony punishable by life and 100 percent of the sentence served. Our posts on prison releasee reoffender sentencing and how to defend against an armed robbery charge in Florida go further on those cases.

Real results in robbery cases

Past results do not guarantee future outcomes. More results are on our case results page.

Frequently asked questions about robbery charges in Florida

Can robbery charges be dropped in Florida?

Yes. Robbery charges can be dropped or reduced when the identification is unreliable, when the evidence shows no force or fear during the taking, or when the State cannot prove the weapon it charged. The Brancato Law Firm obtained a robbery dismissal for a client in November 2025, and we raise each of these issues with the prosecutor early.

Can I be charged with armed robbery if I never showed a weapon?

Yes. Section 812.13(2) turns on whether the offender “carried” a weapon, so display is not required. The Brancato Law Firm tests how the State intends to prove the weapon existed, as described on our Tampa violent crime defense page.

What is the difference between robbery and theft in Florida?

Robbery requires force, violence, assault, or putting in fear during the taking, and theft does not. Our attorneys at The Brancato Law Firm use the Robinson resistance rule to argue for theft when a case involved a grab without a struggle, and our guide to theft charges in Florida covers the theft penalties.

Does 10-20-Life apply to strong-arm robbery?

No. The 10-20-Life minimums apply only when the State proves actual possession of a firearm or destructive device, so a robbery with no gun does not trigger them. The Brancato Law Firm reviews the firearm evidence closely, because a replica or BB gun may not meet the statutory definition.

Should I talk to a detective who calls about a robbery?

No, not before speaking with a lawyer, because anything you tell a detective can be used to build the case, including an honest mistake about a time or place. The Brancato Law Firm offers representation before charges are filed and can speak with the detective for you.

Talk to a Tampa robbery defense attorney now

Witness memories change and store video is overwritten within days, so the first week after a robbery arrest matters most. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will secure the video, test the identification, and prepare for the first appearance and bond hearing. Call (813) 727-7159 for a free, confidential consultation. 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 about our Spanish and Haitian Creole criminal defense services.

For more about our defense strategies, visit our Tampa Violent Crime 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.

Assault cases are usually decided by one disputed moment: whether the other person reasonably feared violence was about to happen right then. That moment is often captured on body camera or a phone, and it often looks different on video than in the report. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I have taken more than 150 jury trials to verdict over more than 25 years in Hillsborough County courtrooms, and assault cases are where our attorneys often see overcharging: road-rage arguments, bar disputes, and neighbor feuds written up as felonies because someone mentioned a weapon.

This guide explains what the State must prove, how Hillsborough cases have been decided on the fear and weapon elements, the penalties, the 10-20-Life correction, and the defenses that work.

How does Florida define assault?

Assault is the threat; battery is the touch. Under section 784.011, Florida Statutes, “An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” No touching is required.

The State must prove three things beyond a reasonable doubt:

1. An intentional, unlawful threat by word or act to do violence.
2. An apparent ability to carry out the threat at that moment.
3. An act creating a well-founded fear that the violence was imminent.

Each element is a place the case can fail. A threat about next week is not imminent. An angry person across a parking lot with no weapon may lack the apparent ability. Our attorneys at The Brancato Law Firm build the defense around whichever element the State’s evidence leaves weakest.

Can words alone be assault in Florida?

Usually not. In H.W. v. State, 79 So. 3d 143 (Fla. 3d DCA 2012), the Third District reversed an assault finding against a student who threatened a school administrator, holding that “Proof of the crime of assault requires not just proof of a threat, but also proof of some physical act directed toward the victim.” The court quoted an older case: “A person’s mere intention to commit an assault is not enough; there must be some overt act sufficient to demonstrate a threat directed at the person placed in fear.”

Words become assault when they arrive with conduct: stepping toward someone, raising a fist, or reaching for a waistband. In our firm’s experience, assault charges are sometimes filed on facts that amount to an ugly argument, and the overt-act requirement is where those cases fall apart.

Does the alleged victim have to be afraid?

Not necessarily, and this cuts both ways in the Second District, which hears appeals from Hillsborough, Pinellas, and Pasco Counties. In Sullivan v. State, 898 So. 2d 105 (Fla. 2d DCA 2005), a Hillsborough County case from Riverview, the court held that a victim’s own lack of fear is not decisive when “the circumstances were such as to ordinarily induce fear in the mind of a reasonable man.” But the court also held the violence must be imminent, meaning “near at hand.” A deputy more than 30 feet away behind a patrol car, with another deputy in between, was too far from the knife for an assault, and the court reversed that count.

The Second District later affirmed an assault adjudication in S.P.M. v. State, 66 So. 3d 317 (Fla. 2d DCA 2011) even though the victim testified he was not afraid, applying Sullivan’s reasonable-person rule. The practical lesson: an alleged victim saying “I wasn’t scared” helps, but the stronger defense is usually distance, timing, and the absence of imminent violence. Our attorneys measure those facts from the video and the scene.

What is aggravated assault in Florida?

Aggravated assault is an assault committed “With a deadly weapon without intent to kill” or “With an intent to commit a felony” under section 784.021, Florida Statutes. It is a third-degree felony punishable by up to 5 years in prison and a $5,000 fine.

The jump from a 60-day misdemeanor to a 5-year felony usually turns on one fact: whether the object was a “deadly weapon.” Our Tampa violent crime lawyer team treats that question as the center of every aggravated assault case.

What counts as a deadly weapon in Florida?

A deadly weapon is an instrument likely to cause death or great bodily harm when used as designed, or an object used or threatened to be used in a way likely to cause death or great bodily harm. Florida’s standard jury instruction uses that two-part test. Under it, a knife, a bat, a bottle, or a car may or may not be a deadly weapon depending on how it was used.

Hillsborough County cases show how much precision matters. In Proctor v. State, 205 So. 3d 784 (Fla. 2d DCA 2016), a jury convicted a defendant of aggravated assault with a firearm but specially found he did not possess a firearm. The Second District held that was a true inconsistent verdict, because “the firearm was a necessary element of the aggravated assault,” and reduced the conviction. In J.M. v. State, No. 2D2022-3344 (Fla. 2d DCA Jan. 31, 2025), the court reversed an aggravated assault finding because the charge alleged the juvenile “carried” a knife, and “the word ‘carry’ cannot be replaced or assumed to be a synonym for ‘use’ in the context of the aggravated assault statute.” In Verela v. State, No. 3D2024-0402 (Fla. 3d DCA Mar. 5, 2025), the Third District reduced an aggravated battery conviction to simple battery because the charging document never alleged a deadly weapon at all. Our attorneys read the charging document as closely as the police report.

Does 10-20-Life apply to aggravated assault?

No. Florida removed aggravated assault from its 10-20-Life statute in 2016. Chapter 2016-7, Laws of Florida, effective July 1, 2016, struck aggravated assault from the list of offenses in section 775.087, Florida Statutes. The current list includes aggravated battery, robbery, burglary, and other felonies, but not aggravated assault.

Many websites still say otherwise. Displaying a gun during an assault does not trigger an automatic 3-, 10-, or 20-year minimum. The weapon reclassification rule in section 775.087(1) does not apply either, because a weapon is an essential element of aggravated assault with a deadly weapon. The one minimum that remains is the 3-year mandatory sentence for aggravated assault on a law enforcement officer under section 784.07, Florida Statutes. When a plea offer assumes a firearm minimum that no longer exists, our attorneys at The Brancato Law Firm correct it in writing.

What are the enhanced penalties for assault on protected people?

Florida reclassifies assault upward for certain victims. Under section 784.07, “knowingly committing an assault or battery upon” a law enforcement officer, firefighter, emergency medical care provider, and other listed people while they perform their duties raises simple assault to a first-degree misdemeanor and aggravated assault to a second-degree felony. Utility workers performing work on critical infrastructure were added effective October 1, 2025. The State must prove the defendant knew the person’s status and that the person was performing official duties.

Age works differently. Under section 784.08, Florida Statutes, an assault on a person 65 or older is reclassified “regardless of whether he or she knows or has reason to know the age of the victim.” When the alleged victim is 60 or older, prosecutors may instead charge abuse of an elderly person, which is a felony; our guide on whether elder abuse is a felony in Florida explains that charge.

Is self-defense a defense to assault in Florida?

Yes. Florida’s self-defense statutes cover “using or threatening to use” force, so a threat made to stop someone else’s imminent unlawful force can be justified. Under section 776.012, Florida Statutes, a person may threaten non-deadly force to defend against imminent unlawful force, and may threaten deadly force to prevent imminent death, great bodily harm, or a forcible felony. An aggravated assault charge is often a threatened-force case, and a Stand Your Ground immunity motion can end it before trial. Our guide on when you can use force in self-defense in Florida explains the rules.

How common are aggravated assault cases in Hillsborough County?

Common, though declining. FDLE arrest data published by Florida Health CHARTS show 1,772 aggravated assault arrests in Hillsborough County in 2025, down from 2,050 in 2023. Florida recorded 22,868 aggravated assault arrests statewide in 2025. The measure includes attempted murder and counts arrests, not reported offenses.

National research shows most aggravated assaults reach the police. The Bureau of Justice Statistics reported in Criminal Victimization, 2024 that 69.1% of aggravated assaults were reported to police in 2024, compared with 40.4% of simple assaults. The Council on Criminal Justice found in its Crime Trends in U.S. Cities: Year-End 2025 Update that reported aggravated assaults were 9% lower in 2025 than in 2024 across the cities it tracks.

Can assault charges be dropped in Florida?

Yes, but not by the alleged victim. Only the State Attorney decides whether to prosecute. What gets assault charges dropped or reduced is evidence: video showing the distance and timing, witnesses who saw who approached whom, proof the threat was conditional or in the future, self-defense facts, and the weakness of a one-witness case. The period after arrest and before the formal charge is the most important window, and our attorneys use it for pre-file advocacy.

Past results do not guarantee future outcomes. More results are on our case results page.

What should you do if you are charged with assault?

Say nothing about the incident to anyone but your lawyer, and start preserving your side now. Save texts, social media messages, and any video, and list every witness. Surveillance video is often overwritten within weeks. Do not contact the alleged victim, especially if a no-contact order was entered at first appearance. Our post on battery and aggravated battery in Florida covers the charge that often travels with assault.

Frequently asked questions about assault charges in Florida

Is assault a felony in Florida?

Simple assault is a second-degree misdemeanor, but aggravated assault with a deadly weapon or intent to commit a felony is a third-degree felony. The Brancato Law Firm focuses first on whether the State can prove the weapon or the felony intent that makes the charge a felony.

Can I be charged with assault if I never touched anyone?

Yes. Assault in Florida is the threat, not the touch, but the State must prove an overt act, an apparent ability, and a well-founded fear of imminent violence. Our attorneys at The Brancato Law Firm look for the missing element, often the imminence of the threat.

Is pointing a gun at someone aggravated assault in Florida?

It can be, but it can also be justified self-defense if you reasonably believed it was necessary to stop imminent unlawful force. The Brancato Law Firm raises Stand Your Ground immunity when the facts support it, and our Tampa gun crimes lawyer page explains how firearm charges are defended.

Does aggravated assault with a firearm carry a mandatory minimum in Florida?

Not under 10-20-Life, which no longer applies to aggravated assault after July 1, 2016. The only remaining minimum is 3 years when the victim is a law enforcement officer, and our attorneys at The Brancato Law Firm correct any offer that assumes otherwise.

What happens if the alleged victim does not want to press charges?

The State Attorney still decides, but a reluctant witness changes the strength of the case. The Brancato Law Firm presents the alleged victim’s truthful sworn statement and the other evidence to the prosecutor during the filing window, as described on our Tampa violent crimes defense page.

Is a knife automatically a deadly weapon in Florida?

No. Whether a knife is a deadly weapon depends on how it was used or threatened, which makes it a question for the jury. Our attorneys at The Brancato Law Firm also check whether the charging document properly alleged the weapon, because Florida courts have reversed convictions when it did not.

Talk to our Tampa assault defense attorneys before the charging decision

The prosecutor deciding your case has usually heard only one side. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will get the video, find the witnesses, and put your side in front of the prosecutor before the charge is filed or the case is set for trial. Call (813) 727-7159 for a free, confidential consultation. 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 about our Spanish and Haitian Creole criminal defense services.

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.

If you were arrested at a store, accused by an employer, or charged after a dispute over property, the charge on the paperwork is only the State’s opening number. The real case is about intent and value, and both can be challenged. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and I have spent more than 25 years in Hillsborough County courtrooms, including more than 150 jury trials to verdict. Our attorneys defend petit theft, retail theft, and grand theft charges across Hillsborough, Pinellas, and Pasco Counties.

This guide covers what the State must prove, the penalty thresholds, the 2024 changes, how value is proven and challenged, retail theft and civil demand letters, and the diversion programs available in Hillsborough County.

What does the State have to prove in a Florida theft case?

The State must prove that you knowingly obtained or used someone else’s property with intent to deprive the owner of it. Under section 812.014, Florida Statutes, “A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property. (b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.”

Three elements are usually in play: that the property belonged to someone else, that you knew it, and that you intended to deprive the owner. A self-checkout mistake, a borrowed item, or a dispute between business partners can each defeat intent. Our attorneys at The Brancato Law Firm look for the innocent explanation first, because it is often the true one.

What are the penalties for theft in Florida?

The value of the property decides the degree. The table below reflects section 812.014 as it reads in 2026.

The maximums come from section 775.082, Florida Statutes and section 775.083, Florida Statutes. Certain property is grand theft at any value, including a firearm, a motor vehicle, a will, a stop sign, and any amount of a controlled substance. Our Hillsborough County criminal defense attorney team checks whether the State charged the right tier before anything else.

What changed in Florida theft law in 2024?

Florida’s 2024 theft law, chapter 2024-69, Laws of Florida, took effect October 1, 2024 and made three changes that still apply in 2026:

1. Theft from a home. Taking $40 or more from a dwelling or its unenclosed curtilage is now a third-degree felony. The old threshold was $100. Theft of less than $40 from a dwelling is a first-degree misdemeanor.
2. Porch theft. Theft from more than 20 dwellings is a second-degree felony.
3. Retail theft. The window for adding up retail thefts grew from 30 days to 120 days, and organizing a theft through social media with five or more people became a second-degree felony.

No later amendment has changed section 812.014. Our attorneys at The Brancato Law Firm check the date of the alleged theft, because a case from before October 1, 2024 is governed by the older thresholds.

How does the State prove the value of stolen property?

With evidence of fair market value at the time of the theft. Section 812.012(10), Florida Statutes defines value as “market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” If no minimum value can be proven, “the value is an amount less than $100.”

The leading case is Negron v. State, 306 So. 2d 104 (Fla. 1974), where the Florida Supreme Court held that value “must be established by the State beyond and to the exclusion of every reasonable doubt,” and that “testimony as to the cost of stolen property is insufficient in itself to establish the value.” The Court listed four factors: original market cost, how the property was used, its condition, and “the percentage of depreciation.”

The Second District applied Negron to a Hillsborough County case this year. In Russell v. State, No. 2D2024-1373 (Fla. 2d DCA Aug. 28, 2026), the owner testified to purchase prices, dates, use, and condition, “But there was no testimony about the percentage of depreciation or fair market value of the items.” The court reduced the conviction to second-degree petit theft. In T.V.U. v. State, 403 So. 3d 389 (Fla. 2d DCA 2025), a Pinellas case, the court reversed a theft finding because the only evidence of the amount came from a computer printout that was never admitted into evidence. These are the details our attorneys at The Brancato Law Firm press in every grand theft case. Our post on how the State proves value in a Florida grand theft case goes deeper.

Is a good-faith belief that the property was yours a defense?

Yes. Florida courts recognize a claim of right. In Owens v. State, 866 So. 2d 129 (Fla. 5th DCA 2004), the Fifth District quoted the rule that “In all cases where one in good faith takes another’s property under claim of title in himself, he is exempt from the charge of larceny, however puerile or mistaken the claim may in fact be…. Still, if the claim is dishonest, a mere pretense, it will not protect the taker.” The court found trial counsel ineffective for failing to properly request the instruction.

The claim must be honest, not reasonable. Disputes over a car bought for scrap, tools left at a job site, or money owed between partners often fit this defense. In one of our cases, a client accused of stealing a car he had bought for scrap was found not guilty after we showed the jury he purchased it legitimately.

What inferences can the State use in a theft case?

Two statutory inferences come up often. Under section 812.022, Florida Statutes, “proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” A purchase or sale “at a price substantially below the fair market value, unless satisfactorily explained,” creates the same inference.

The words “unless satisfactorily explained” are the defense. A receipt, a seller’s name, a text message, or a believable account of how the item was acquired can answer the inference. When the State charges both theft and dealing in stolen property, section 812.025, Florida Statutes allows a guilty verdict on one or the other, “but not both.”

What is retail theft, and what is a civil demand letter?

Retail theft is shoplifting. Section 812.015, Florida Statutes covers taking merchandise, changing a price tag, switching containers, or removing a cart “with intent to deprive the merchant of possession, use, benefit, or full retail value.” A merchant with probable cause may detain a suspect “in a reasonable manner for a reasonable length of time” and must call police. Resisting a merchant’s effort to recover property is a separate first-degree misdemeanor. Retail thefts totaling $750 or more within 120 days can be charged together as a third-degree felony.

The civil demand letter is separate from the criminal case. Under section 772.11, Florida Statutes, a store may demand $200 or three times its actual damages before filing a civil suit, and a person who pays within 30 days receives a written release from further civil liability for that act. Paying the demand does not resolve the criminal charge, and the statute does not require a criminal conviction. Talk to a lawyer before responding.

One persistent myth is worth correcting. Since October 1, 2019, Florida law no longer allows a court to suspend an adult’s driver license for a petit theft conviction. Section 812.0155, Florida Statutes now applies only to people under 18, as an alternative sentence. The one exception for adults is theft of gasoline by driving off without paying, which still carries a mandatory license suspension under section 812.014(5).

How common are theft arrests in Hillsborough County?

Less common than they were a decade ago. FDLE arrest data published by Florida Health CHARTS show 3,395 larceny arrests in Hillsborough County in 2025, down from 6,358 in 2016, a 47% drop. Statewide, Florida recorded 48,932 larceny arrests in 2025. These counts include only physical arrests, so many petit theft cases handled by a notice to appear are not in them.

Retailers report a different trend. The National Retail Federation, an industry group, reported in The Impact of Retail Theft & Violence 2024 that average shoplifting incidents among surveyed retailers rose 93% from 2019 to 2023. The Council on Criminal Justice reported in its Crime Trends in U.S. Cities: Year-End 2025 Update that reported shoplifting was 10% lower in 2025 than in 2024 across the cities it tracks.

Can theft charges be dropped or reduced in Florida?

Yes. The most common paths are a value challenge that moves the case below a felony threshold, an intent defense, a suppression issue, pre-file advocacy before charges are filed, and diversion for first-time offenders. The Hillsborough State Attorney’s Office lists an Adult Pre-Arrest Diversion Program (APAD) for “an eligible misdemeanor offense” and a Misdemeanor Intervention Program (MIP) for first-time offenders on its programs page. The office does not publish a list of eligible charges, but in our experience first-time petit theft cases are often considered.

Research supports diversion for low-level cases. A study in the Quarterly Journal of Economics by Agan, Doleac, and Harvey, Misdemeanor Prosecution (2023), found that not prosecuting a marginal nonviolent misdemeanor defendant reduced the likelihood of a new criminal complaint within two years by 53%, with the largest effects for people with no prior record.

Some theft cases are also charged too high. A struggle with a loss prevention officer can be charged as robbery under section 812.13, which requires force during the taking. When the force happened only during the merchant’s effort to recover the goods, the robbery charge may not hold.

Real results in theft cases

Past results do not guarantee future outcomes. More results are on our case results page.

What should you do after a theft or shoplifting arrest?

Take four steps:

1. Do not make statements. Loss prevention officers and police often ask about other incidents; say you want a lawyer.
2. Do not sign anything at the store, including admissions or payment agreements.
3. Preserve your evidence. Receipts, bank records, texts, and your own photos can prove ownership or purchase.
4. Call a lawyer before the first court date. Diversion and pre-file options close quickly, and surveillance video is often overwritten.

For related charges, see our guides on robbery in Florida, burglary in Florida, and dealing in stolen property.

Frequently asked questions about theft charges in Florida

Can theft charges be dropped in Florida?

Yes. Theft charges can be dropped when the State cannot prove intent or value, when evidence is suppressed, or after completion of a diversion program. The Brancato Law Firm contacts the prosecutor early, often before the case is formally filed, with the receipts, video, or witness statements that change the picture.

Is shoplifting a felony in Florida?

Usually not. A single shoplifting incident under $750 is a misdemeanor, but it becomes a felony when the value is $750 or more, when thefts within 120 days are added together, or when the person has two or more prior theft convictions. Our attorneys at The Brancato Law Firm check every prior and every aggregation the State relies on, as explained on our Hillsborough County criminal defense page.

Do I have to pay a civil demand letter after shoplifting in Florida?

You are not required to pay it to resolve the criminal case, and paying does not make the charge go away. Section 772.11 lets the store demand $200 or triple damages before suing, and The Brancato Law Firm reviews the letter with you before you respond.

Will a petit theft suspend my driver license in Florida?

Not for an adult, except for a gas drive-off. Since October 1, 2019, section 812.0155 allows a license suspension for theft only for people under 18, and our attorneys at The Brancato Law Firm explain how the rule applies to your record.

Can a first-time petit theft charge be resolved without a conviction?

Often, yes. Hillsborough County’s diversion programs, including APAD and the Misdemeanor Intervention Program, can end in no charges or a dismissal with State Attorney approval. The Brancato Law Firm negotiates entry and makes sure the dismissal happens, and you can learn about representation before charges are filed.

What if I forgot to scan an item at self-checkout?

Then the State may not be able to prove intent, which theft requires. Our attorneys at The Brancato Law Firm gather the receipt, the transaction record, and the store video to show what really happened.

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

Talk to our Tampa theft defense attorneys today

Surveillance video and diversion deadlines do not wait for your court date. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will challenge the value, test the intent evidence, and push for diversion or dismissal from the first week. Call (813) 727-7159 for a free, confidential consultation. 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 about our Spanish and Haitian Creole criminal defense services.

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 police academy instructor, I have seen self-defense cases turn on a single question: what did the person reasonably believe in the seconds before they acted? I have tried more than 150 jury trials to verdict, including a second-degree murder case where the jury acquitted on self-defense. Our attorneys defend self-defense cases in Hillsborough, Pinellas, and Pasco Counties, from simple battery to homicide.

This guide explains when Florida law justifies force, the duty to retreat, the home and vehicle presumption, the aggressor rule, the 2025 Florida Supreme Court decision on reasonableness, and the 2026 change on resisting police. A separate guide explains how a Stand Your Ground immunity hearing works. Once a case is filed, our guides on how to claim self-defense in a Florida criminal case and Stand Your Ground vs. self-defense cover the next steps.

When can you use non-deadly force in Florida?

You can use or threaten non-deadly force when you reasonably believe it is necessary to protect yourself or someone else from imminent unlawful force. Section 776.012(1), Florida Statutes provides that “A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.” The same subsection says the person “does not have a duty to retreat.”

Non-deadly force covers a push, a punch, or holding someone back. The force must match the threat: “to the extent” necessary. Our attorneys at The Brancato Law Firm build these cases on video, injuries, and witness accounts that show what the other person did first.

When is deadly force justified in Florida?

Deadly force is justified only to prevent imminent death or great bodily harm, or the imminent commission of a forcible felony. Under section 776.012(2), a person may use or threaten deadly force “if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”

Section 776.08, Florida Statutes defines “forcible felony” to include murder, manslaughter, sexual battery, carjacking, home-invasion robbery, robbery, burglary, arson, kidnapping, aggravated assault, aggravated battery, aggravated stalking, and “any other felony which involves the use or threat of physical force or violence against any individual.”

Do you have a duty to retreat in Florida?

No, in most situations. Florida removed the duty to retreat in 2005. The law that did it, chapter 2005-27, Laws of Florida, stated that no person “should be required to surrender his or her personal safety to a criminal” or “needlessly retreat in the face of intrusion or attack.”

For deadly force, the no-retreat rule has two conditions. Section 776.012(2) gives the right to stand your ground “if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.” When the evidence shows criminal activity or that the person had no right to be there, Florida’s standard jury instruction tells the jury deadly force was not justified unless the person used every reasonable means to avoid the danger, unless retreat would have increased the danger. Our attorneys at The Brancato Law Firm look closely at any “criminal activity” the State claims, because that one fact can change the jury instruction.

Does threatening force count as self-defense in Florida?

Yes. Since the 2014 “warning shot” law, chapter 2014-195, Laws of Florida, the self-defense statutes cover “using or threatening to use” force. That change matters most in aggravated assault cases, where the person displayed a weapon but never used it.

Florida’s appellate courts have not treated every display of a gun the same way. In Marty v. State, 210 So. 3d 121 (Fla. 2d DCA 2016), a Polk County case, the Second District held that pointing a gun without firing “did not, as a matter of established law, constitute deadly force,” and found trial counsel ineffective for requesting only the deadly-force instruction. In Little v. State, 302 So. 3d 396 (Fla. 4th DCA 2020), the Fourth District held that after the 2014 amendment, pointing a loaded gun and issuing a command is generally a threat of deadly force. Firing a gun, even as a warning, is treated as deadly force. Which instruction the jury hears can decide the case, and our attorneys argue for the correct one in every trial.

What does Florida’s home and vehicle presumption cover?

Florida presumes you feared death or great bodily harm when someone was unlawfully and forcibly entering, or had entered, your home or occupied vehicle. Under section 776.013, Florida Statutes, the presumption applies when the other person “was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle,” or was removing someone against their will, and the defender “knew or had reason to believe” it was happening. “Dwelling” includes “any attached porch” and “a tent,” and “vehicle” means “a conveyance of any kind, whether or not motorized.”

The presumption does not apply in four situations:

When the presumption does not apply, the general rules of section 776.012 still do. Our attorneys at The Brancato Law Firm use the presumption where it fits and argue reasonableness where it does not.

Can you use force to protect property in Florida?

Yes, but deadly force only to stop a forcible felony. Under section 776.031, Florida Statutes, a person may use or threaten non-deadly force “to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property” that the person lawfully possesses. Deadly force is justified “only if he or she reasonably believes that such conduct is necessary to prevent the imminent commission of a forcible felony.” Shooting someone over a stolen bike, without a forcible felony in progress, is not justified.

When is self-defense not available in Florida?

Self-defense is generally not available to the aggressor. Section 776.041, Florida Statutes bars the defense for a person who “Is attempting to commit, committing, or escaping after the commission of, a forcible felony,” or who “Initially provokes the use or threatened use of force.” The initial provoker regains the defense only if the force against him becomes so great that he reasonably believes he faces imminent death or great bodily harm and has exhausted every reasonable means of escape, or if he withdraws in good faith, clearly communicates it, and the other person keeps coming.

The forcible-felony part of that statute is often misused at trial. In Martinez v. State, 981 So. 2d 449 (Fla. 2008), the Florida Supreme Court held that “it is error for a trial court to read the forcible-felony instruction to the jury where the defendant is not charged with an independent forcible felony,” though the error is fundamental only when it deprives the defendant of a fair trial. The Second District applied that rule this year in Cordell v. State, No. 2D2024-1370 (Fla. 2d DCA June 19, 2026), a Hillsborough County case. Because Cordell was not charged with any forcible felony other than the ones he claimed self-defense for, the instruction “potentially vitiated his defense,” and the court reversed his convictions. The same opinion rejected his challenge to the initial-aggressor instruction because his lawyer did not object again when it was read. Our attorneys object on the record every time.

The initial-aggressor instruction itself is valid. In State v. Floyd, 186 So. 3d 1013 (Fla. 2016), the Florida Supreme Court held that the standard instruction “accurately and correctly explains this law.”

Does your fear have to be reasonable?

Yes, and it has to be real. In Oquendo v. State, 420 So. 3d 466 (Fla. 2025), a Pinellas County case, the Florida Supreme Court held that Florida’s self-defense standard has “both a subjective and objective component”: the person must actually believe force is necessary, and that belief must be reasonable. The Court held that evidence of post-traumatic stress disorder “can be relevant to the subjective component, even though it is irrelevant to the objective component.” It still affirmed the conviction, because the defendant testified the shot was an accident.

Florida does not reduce a charge for an honest but unreasonable belief. In Hill v. State, 979 So. 2d 1134 (Fla. 3d DCA 2008), the Third District rejected an “imperfect self-defense” instruction, holding that “The Florida statute does not contain a provision on imperfect self-defense.” The jury instruction itself says “The danger need not have been actual,” but the appearance of danger must have been “so real that a reasonably cautious and prudent person under the same circumstances would have believed” force was necessary. Our attorneys build both parts: what our client believed, and why a reasonable person would have believed it too.

Can you use force against a police officer in Florida?

Almost never. Section 776.051, Florida Statutes was rewritten effective June 16, 2026 by the Officer Jason Raynor Act, chapter 2026-144, Laws of Florida. It now provides that a person is not justified in using or threatening force to resist “any arrest or detention” by an officer, or an officer performing official duties, “if the law enforcement officer was acting in good faith.” “Acting in good faith” means “sincere and reasonable efforts to comply with legal requirements, even if the arrest, detention, or other act is later found to have been unlawful.” The earlier version applied only to arrests. The safe course is to comply, stay silent, and challenge the arrest later in court.

What is Stand Your Ground immunity?

It is protection from prosecution, not just a defense at trial. Under section 776.032, Florida Statutes, a person who uses or threatens force as permitted by sections 776.012, 776.013, or 776.031 “is immune from criminal prosecution and civil action,” and police “may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.” At a pretrial hearing, once the defense raises a prima facie claim, the State must overcome it by clear and convincing evidence. Our guide on how a Stand Your Ground hearing works explains the hearing step by step, and our Tampa violent crime lawyer team handles these motions.

How often do self-defense cases come up in Florida?

Regularly. The FBI’s Justifiable Homicide, 2015 to 2024 report counted 2,776 justifiable homicides by private citizens nationally over that decade, 1,748 of them (63.0%) in the South. The FBI does not publish a Florida breakout. Most self-defense claims involve lesser charges: FDLE arrest data published by Florida Health CHARTS show 2,652 violent-crime arrests in Hillsborough County in 2024.

Researchers have studied how Florida’s law is applied. A peer-reviewed study in Social Science & Medicine, Race, law, and health: Examination of “Stand Your Ground” and defendant convictions in Florida (Ackermann and colleagues, 2015), analyzed 204 Florida Stand Your Ground cases from 2005 to 2013 and found, after controls, an odds ratio of 2.1 for conviction when the victim was white compared with non-white victims. A study in JAMA Internal Medicine by Humphreys, Gasparrini, and Wiebe, Evaluating the Impact of Florida’s “Stand Your Ground” Self-defense Law on Homicide and Suicide by Firearm (2017), reported a 24.4% increase in homicides after the 2005 law took effect.

Real results in self-defense cases

Past results do not guarantee future outcomes. More results are on our case results page.

What should you do after using force in self-defense?

Call 911, get medical help for anyone hurt, and then say as little as possible. Tell officers you were attacked, that you will cooperate, and that you want a lawyer before giving a statement. Statements made in the first hour often become the State’s main evidence. Preserve your own injuries in photos, save texts and video, and list witnesses. Police may decide whether to arrest based on what they learn that night, so representation before charges are filed can matter as much as anything that happens in court.

Frequently asked questions about Florida self-defense law

Can self-defense charges be dropped in Florida?

Yes. Charges can be dropped when the evidence shows the force was justified, and a judge must dismiss the case if the State cannot overcome a Stand Your Ground immunity claim by clear and convincing evidence. The Brancato Law Firm presents video, injuries, and witness statements to the prosecutor before the filing decision when we can.

Is pointing a gun self-defense in Florida?

It can be. Florida’s statutes cover threatening force, so displaying a gun can be justified on the same terms as using force, but courts disagree on whether pointing a gun is judged as deadly or non-deadly force. Our attorneys at The Brancato Law Firm argue for the instruction that fits the facts, and our Tampa gun crimes lawyer page explains how those charges are defended.

Does Stand Your Ground apply inside my home?

Yes, and the home has extra protection. Section 776.013 presumes reasonable fear when an intruder unlawfully and forcibly enters, but the presumption does not apply against someone with a right to be there, such as a spouse or roommate. The Brancato Law Firm sorts out which rule applies before deciding how to raise the defense.

Can I use deadly force to protect my property in Florida?

Only to prevent the imminent commission of a forcible felony, such as a robbery or burglary. Section 776.031 allows non-deadly force to stop a trespass or theft, and our attorneys at The Brancato Law Firm explain where that line falls in each case.

What if I started the argument but the other person escalated?

You may still claim self-defense in limited situations. Under section 776.041, an initial provoker regains the defense if the other person’s force becomes deadly and there is no reasonable way to escape, or if the provoker clearly withdraws and the other person keeps attacking. The Brancato Law Firm builds these cases on the timeline shown in the video, and you can learn more on our Tampa violent crimes defense page.

Can police arrest me if I acted in self-defense?

They can arrest only if they have probable cause that the force was unlawful, under section 776.032(2). In practice, officers often arrest and leave the question for the courts, and our attorneys at The Brancato Law Firm raise immunity at the earliest point the facts allow.

Talk to our Tampa self-defense attorneys today

Self-defense cases are won or lost on what is said and preserved in the first days. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will protect your statements, gather the video and witnesses, and decide whether to seek immunity before trial. Call (813) 727-7159 for a free, confidential consultation. 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 about our Spanish and Haitian Creole criminal defense services.

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.