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

How Many Jurors Sit on a Florida Criminal Jury?

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

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

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

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

Which Florida Cases Actually Get a Twelve-Person Jury?

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

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

Is a Six-Person Jury Legal?

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

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

Why Does Jury Size Matter?

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

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

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

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

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

Here is the road that led there:

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

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

What Happens to Florida Cases While Kian Is Pending?

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

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

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

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

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

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

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

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

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

How many jurors are on a jury in Florida?

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

Does a Florida jury verdict have to be unanimous?

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

What is Kian v. Florida?

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

Is a six-person jury unconstitutional?

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

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

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

How long has Florida used six-person juries?

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

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

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

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

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

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

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

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

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

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

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

What does Florida’s rape shield law say?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What evidence is not covered by the rape shield law?

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

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

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

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

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

How does the in camera hearing work?

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

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

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

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

Frequently asked questions about Florida’s rape shield law

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

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

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

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

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

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

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

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

Can the prosecutor bring up my sexual history?

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

Can sexual battery charges be dropped in Florida?

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

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

Talk to a Tampa sex crimes defense attorney

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

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

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

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

Short answer: High-stakes criminal defense is the defense of a case where a conviction would take away most or all of a person’s life: a murder, sexual battery, child abuse, trafficking, or other first-degree or life felony. The Brancato Law Firm, P.A. handles these cases routinely with its own attorneys. For the client who has the means and wants to pull out all the stops, founder Rocky Brancato can also assemble an extraordinary trial team, drawing on the firm’s relationships with respected trial attorneys, former prosecutors, investigators, forensic experts, and mitigation specialists in Tampa Bay and across Florida. No lawyer can promise a result, but a deeper team leaves less on the table.

If someone you love is facing life in prison and the cost of the defense matters far less than the outcome, the question becomes how much talent you can put behind them. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I have tried more than 150 jury trials to verdict, spent more than 25 years in Hillsborough County courtrooms, and served as former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. Our attorneys handle high-stakes felony cases as a regular part of our practice. When a client has the means and wants every available resource, we can also assemble an extraordinary trial team, adding hand-picked attorneys and specialists from our network to our own and running everyone under one strategy.

What Makes a Criminal Case High-Stakes in Florida?

A Florida criminal case is high-stakes when the possible sentence is measured in decades, life, or death, or when a conviction would end a career, a family, or a person’s freedom for good. Most of these cases are first-degree felonies, life felonies, or capital felonies: murder, sexual battery, lewd or lascivious offenses involving a child, aggravated child abuse, human trafficking, armed robbery, and large-quantity drug trafficking. Our attorneys handle these charges routinely, as described on our Tampa homicide attorney and Tampa sex crimes lawyer pages.

High stakes also come from outside the courtroom. A professional license, a security clearance, an immigration status, a public reputation, or a custody case can ride on the same facts. When the consequences run that deep, the defense has to run just as deep.

What Is an Extraordinary Trial Team, and Why Add One?

An extraordinary trial team is our firm’s own defense, expanded with hand-picked outside trial attorneys, former prosecutors, and specialists for a client who has the means to put every possible resource behind the case. Adding experienced attorneys and specialists lets more critical jobs happen at full strength at the same time. In a serious felony case, the suppression motions, depositions, expert work, defense investigation, jury research, and mitigation all compete for the same weeks before trial. A larger team does that work in parallel, and nothing gets shortchanged because the calendar ran out. It also brings talents, perspectives, and courthouse experience that no single firm of any size has under one roof.

The professional standards for the most serious cases already assume a team. The American Bar Association’s Guideline 10.4 for death penalty defense calls for lead counsel, one or more associate counsel, at least one fact investigator, at least one mitigation specialist, and a team member qualified to screen for mental health conditions. Florida’s own Rule 3.112 of the Florida Rules of Criminal Procedure describes lead counsel and co-counsel in capital trials and sets experience standards for lead counsel, including at least nine serious jury trials tried to completion.

Courts look to those standards too. In Wiggins v. Smith, 539 U.S. 510 (2003), a Maryland man was sentenced to death after his lawyers stopped investigating his background early. The U.S. Supreme Court held that the shortened mitigation investigation was ineffective assistance of counsel, sent the case back, and described ABA standards as “guides to determining what is reasonable.” The lesson for any high-stakes case: the defense that wins is usually the one that investigated more.

Trial experience is also scarcer than most families realize. A study published in Judicature (Duke Law, 2017) found jury trials resolved fewer than 2 percent of criminal cases in Florida, California, Pennsylvania, and Texas. Many lawyers simply do not try many cases. A team built around proven trial lawyers changes how the State values the case, because prosecutors know the case will actually be tried.

What Talents Can an Extraordinary Trial Team Add?

Each person added to the team should solve a specific problem in the case. Our founder, Rocky Brancato, has handled thousands of felony cases and works in every one of these areas himself. The attorneys and specialists we bring in are people our firm knows and has seen perform, in Tampa Bay and around Florida. They add force, fresh perspective, and the right fit for a particular courtroom, witness, or jury.

1. Additional trial lawyers. Divide witnesses, prepare the penalty phase while the guilt phase is being tried, and pressure-test the theory of defense before the State does.
2. The right voice for a hard witness. Who cross-examines a sympathetic accuser matters. Gender, age, demeanor, and language can change how jurors receive a tough cross-examination, and choosing that voice is a strategic decision.
3. Institutional knowledge. Former prosecutors and lawyers who practice daily in a particular courthouse know how an office makes plea decisions, who has authority to approve an offer, and what a given division expects to see in a pre-trial presentation.
4. Forensic depth. Lawyers and experts who focus on DNA mixtures, digital forensics, cell phone location data, toxicology, cause of death, or use of force. See our Tampa forensic science defense page and our guide to expert witnesses in criminal defense.
5. Investigators. Former law enforcement investigators who interview witnesses, locate evidence, preserve social media before it disappears, and look into an accuser’s motive to fabricate.
6. Mitigation and sentencing specialists. Build the client’s life history, mental health record, and support network into a mitigation report that can change a plea offer or a sentence.
7. Jury consultants. Run mock trials and focus groups, research the jury pool, and help design jury selection questions.
8. Collateral counsel. Immigration, professional license, family court, and federal counsel who make sure a resolution in the criminal case does not trigger a second disaster somewhere else.

How Does a Defense Team Handle a False Accusation in a Sex Crime Case?

A defense team handles a false accusation by investigating the accuser’s account independently and then testing it through careful cross-examination before a jury. False testimony is a documented problem: of the 147 exonerations recorded by the National Registry of Exonerations in 2024, 106, or 72 percent, involved perjury or a false accusation, according to the Registry’s 2024 Annual Report.

Florida law limits what the defense can ask about. Under Florida’s rape shield law, section 794.022, Florida Statutes, evidence of an accuser’s prior consensual sexual activity with other people is generally barred, and the defense must ask the judge in a private (in camera) hearing before using it for a narrow purpose such as showing the defendant was not the source of semen, pregnancy, injury, or disease. Our guide to Florida’s rape shield law explains those limits in detail.

Inside those rules, the cross-examination still has to expose inconsistencies, motive, and impossible timelines. It also has to do that without making the jury feel the witness is being bullied. That balance is why our firm thinks carefully about who on the team asks the questions. In some cases the most effective cross-examiner is a different attorney than the one who gives the opening statement.

What Does a Trial Team Mean in a Florida Death Penalty Case?

In a Florida death penalty case, a trial team means at least two qualified lawyers, a mitigation specialist, an investigator, and mental health experts working on the guilt phase and the penalty phase at once. Under section 921.141, Florida Statutes, a jury’s recommendation must be death if at least eight of twelve jurors vote for it, and the jury must unanimously find at least one aggravating factor before death is possible. That means the defense needs to persuade at least five jurors to vote for life.

The stakes are not theoretical. In 2025, Florida carried out 19 executions, the most in state history and 40 percent of the 47 executions nationwide, according to the Death Penalty Information Center. I meet the Florida Supreme Court’s Rule 3.112 qualifications for capital cases, and our firm builds the full capital team the standards call for. Our guide to death penalty qualified lawyers in Florida covers those qualifications.

Who Leads When Outside Attorneys Join the Defense?

Our firm leads the defense, and every attorney and expert added to the team serves one theory of defense. At The Brancato Law Firm, the client has one point of command. Rocky Brancato decides who joins the team, what each person is responsible for, and how the case is presented to the prosecutor, the judge, and the jury.

Knowing who to bring in is itself a skill, and it depends on relationships. Over more than 25 years, Rocky Brancato has built working relationships with respected defense attorneys, former prosecutors, and forensic and mitigation specialists in our community and across Florida. Running an office of over 100 attorneys meant watching a very large number of trial lawyers work, in courtrooms across the 13th Judicial Circuit. That is how you learn who performs under pressure in a particular kind of case, and who does not. Every outside attorney, investigator, and expert added to a case is disclosed to the client, and the client agrees to the arrangement in writing before it starts.

What Results Has The Brancato Law Firm Achieved in High-Stakes Cases?

Our attorneys have resolved serious homicide and child abuse cases with outcomes like these:

Past results do not guarantee future outcomes. Every case turns on its own facts.

When Should a Family Decide on an Extraordinary Trial Team?

A family should make that decision as soon as an investigation, arrest, or warrant is known, because the most valuable evidence is often lost in the first weeks. Surveillance video is overwritten, phones are reset, witnesses move, and social media posts are deleted. Investigators and experts hired early can preserve what later becomes the heart of the defense.

Early action can also stop a case from becoming high-stakes at all. Our firm’s representation before charges are filed lets our attorneys present facts and evidence to the State Attorney’s Office before a charging decision is made. In Hillsborough County and the surrounding counties, that window can close quickly once an arrest is made and the case is set for first appearance.

Frequently Asked Questions About High-Stakes Criminal Defense

Does The Brancato Law Firm handle high-stakes criminal cases in Tampa?

Yes, high-stakes felony cases such as murder, sexual battery, child abuse, and trafficking are the core of our practice in Hillsborough, Pinellas, and Pasco Counties. The Brancato Law Firm defends each of these cases with our own attorneys and, when a client has the means and wants every available resource, adds hand-picked outside counsel and experts, and our homicide defense page describes how we prepare a murder case for trial.

Can I have more than one attorney on my case at The Brancato Law Firm?

Yes, a high-stakes client can have several attorneys working on the case. The Brancato Law Firm’s own attorneys handle the defense, and when a client wants to pull out all the stops, Rocky Brancato adds trial attorneys, former prosecutors, and specialists from the firm’s relationships in Tampa Bay and across Florida. Our Tampa sex crimes defense page shows how that approach applies in sexual battery cases.

How much does an extraordinary trial team cost?

The cost depends on the charge, the volume of evidence, the experts the case needs, and whether it goes to trial. The Brancato Law Firm quotes each case on its facts and complexity, and our guide to criminal defense attorney costs in Tampa explains how fees are set and what drives them.

Can another lawyer join my case if my family already hired an attorney?

Yes, a second attorney can join an existing defense as co-counsel or work behind the scenes as a trial consultant. The Brancato Law Firm can step in this way when a case is close to trial, as described on our Florida criminal trial consulting page.

Do I need a defense team if I am only under investigation?

A person under investigation for a serious felony benefits from investigators and experts before any charge is filed, because that is when evidence is easiest to preserve. Our attorneys at The Brancato Law Firm use pre-file advocacy to give the prosecutor reasons not to file, or to file a lesser charge.

Who makes the decisions when several lawyers work on one case?

The lead attorney makes the strategic decisions, after consulting the client on the choices that belong to the client, such as whether to testify or accept a plea. At The Brancato Law Firm, that lead role belongs to founder Rocky Brancato, and every team member works from the strategy he sets.

Can high-stakes charges be dropped or reduced in Florida?

Yes, serious charges can be dropped or reduced when the defense shows the State its evidence will not hold up, through suppression motions, forensic challenges, or witness credibility problems. The Brancato Law Firm has seen a homicide charge dropped and a first-degree murder case’s death penalty notice withdrawn after defense challenges, and our sex crimes defense team uses the same approach in sexual battery cases.

Will a female attorney cross-examine the accuser in a sexual battery case?

Sometimes, depending on the witness, the facts, and the jury, because jurors can receive the same questions differently depending on who asks them. The Brancato Law Firm chooses the cross-examiner as a matter of trial strategy, and our guide on how to choose a criminal defense attorney in Tampa covers the questions families should ask about trial experience.

Talk to a Tampa High-Stakes Criminal Defense Attorney Today

The first weeks of a serious felony case decide what evidence still exists when the defense needs it. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will start by preserving that evidence and, if you want every available resource, assembling an extraordinary trial team around your case. Call (813) 727-7159; 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. For more about our defense strategies, visit our Homicide Defense page.

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

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

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

What is circumstantial evidence in Florida?

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

Is circumstantial evidence weaker than direct evidence?

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

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

How did Bush v. State change circumstantial evidence cases?

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

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

Can the State stack inferences after Bush?

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

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

How do our attorneys fight a circumstantial evidence case?

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

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

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

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

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

Frequently asked questions about circumstantial evidence in Florida

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

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

Does Florida still use the reasonable hypothesis of innocence standard?

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

What is inference stacking in a Florida criminal case?

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

Is fleeing from police evidence of guilt in Florida?

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

Can circumstantial evidence be used at a probation violation hearing?

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

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

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

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

Find the weak link before the State builds the chain

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

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

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

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

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

When can you disqualify a judge in Florida?

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

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

What test do Florida courts use?

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

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

What does not count as grounds?

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

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

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

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

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

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

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

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

What happens after the judge rules?

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

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

What if the judge denies the motion?

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

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

Will filing a motion to disqualify hurt your case?

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

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

Frequently asked questions about disqualifying a judge in Florida

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

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

Can a judge be disqualified for being a former prosecutor?

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

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

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

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

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

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

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

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

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

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

Talk to a lawyer before the 20-day window closes

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

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

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

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

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

What Is Contempt of Court Under Florida Law?

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

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

What Is Direct Criminal Contempt?

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

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

What Is Indirect Criminal Contempt?

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

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

Criminal vs. Civil Contempt: What Is the Difference?

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

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

What Are the Penalties for Contempt of Court in Florida?

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

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

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

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

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

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

What Happens When the Rules Are Not Followed?

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

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

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

Can You Go to Jail for Civil Contempt in Florida?

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

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

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

How Do Our Attorneys Defend a Contempt Charge?

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

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

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

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

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

Frequently Asked Questions About Contempt of Court in Florida

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

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

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

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

Can contempt of court charges be dropped in Florida?

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

Do you get a public defender for contempt of court?

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

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

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

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

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

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

Talk to a Tampa Attorney Before Your Contempt Hearing

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

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

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

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

A Jimmy Ryce jury is not asked whether you committed a crime. It is asked to predict whether you will commit one, and that question turns almost entirely on expert opinions that can be tested. In the Major Crimes Unit, I handled homicide, sex crime, and child abuse cases, 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 cross-examining the kinds of experts the State relies on in these cases. Our attorneys defend Ryce cases by attacking the diagnosis, the risk prediction, and the process that produced them.

What Is the Jimmy Ryce Act in Florida?

The Jimmy Ryce Act is Florida’s sexually violent predator law. It allows civil commitment to a secure Department of Children and Families facility after a prison sentence ends. Under section 394.912, Florida Statutes, a “sexually violent predator” is a person who has been convicted of a sexually violent offense and “suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.”

People committed under the Act are held at the Florida Civil Commitment Center in Arcadia, in DeSoto County. Under section 394.917, Florida Statutes, commitment continues “until such time as the person’s mental abnormality or personality disorder has so changed that it is safe for the person to be at large.” There is no maximum term.

Florida’s Office of Economic and Demographic Research tracks every commitment. Its Sexually Violent Predator Program commitments table counts 1,197 commitments from February 1999 through July 2026, including 29 commitments during calendar year 2025.

What Must the State Prove to Commit Someone?

The State must prove two elements by clear and convincing evidence, and a jury verdict must be unanimous. The definitions in section 394.912 set the bar:

The U.S. Supreme Court added a constitutional limit. In Kansas v. Crane, 534 U.S. 407 (2002), the Court reviewed Kansas’s version of the law and held that “there must be proof of serious difficulty in controlling behavior,” enough to distinguish the person from “the dangerous but typical recidivist convicted in an ordinary criminal case.” That lack-of-control requirement is often where a Ryce defense is won.

Is the Jimmy Ryce Act Constitutional?

Yes. The Florida Supreme Court upheld the Act in Westerheide v. State, 831 So. 2d 93 (Fla. 2002), the appeal of a man committed after convictions for lewd and lascivious assault on a child. The court held that Ryce commitment is civil, not criminal, so it does not violate double jeopardy or ex post facto protections, and it rejected due process and equal protection challenges.

The court’s reasoning shapes every trial. Westerheide held that commitment is based on “an individual’s current mental state that makes it likely the person will engage in acts of sexual violence,” not on punishment for the past offense. That is why our attorneys focus the jury on who the person is now, after years in prison and treatment, and not on the crime he already served time for.

How Does a Jimmy Ryce Case Begin?

It begins inside prison, long before the release date. Under section 394.913, Florida Statutes, the Department of Corrections must notify the multidisciplinary team and the state attorney at least 545 days before the anticipated release of a person serving a sentence for a qualifying offense. The process then moves through set stages:

Once a judge finds probable cause, section 394.915, Florida Statutes, requires the person to be held in a secure facility “without opportunity for pretrial release.” That makes the evaluation stage, before any petition is filed, the most important time to have a lawyer involved.

What Rights Does a Person Have in a Jimmy Ryce Case?

A person facing commitment has rights borrowed from criminal cases. Under section 394.916, Florida Statutes, he is entitled to counsel at every adversarial proceeding, may retain his own experts with access to his records, and may demand a six-person jury in writing at least 5 days before trial. If no one demands a jury, the judge decides the case. An indigent respondent can ask the court to appoint a mental health expert at state expense.

At an adversarial probable cause hearing, if the court holds one, the person can present evidence, cross-examine the State’s witnesses, and see every report in the court file. These rights matter only if they are used. Our attorneys hire independent evaluators, demand the State’s records early, and decide with the client whether a jury or the judge is the better fact-finder for his case.

How Do Defense Attorneys Fight Jimmy Ryce Commitment?

They fight the prediction. Ryce cases are expert cases, and the defense wins by showing the State’s experts cannot carry a clear and convincing burden. Research on risk prediction supports that approach. A Public Safety Canada review of 100 studies led by researcher R. Karl Hanson, The Accuracy of Risk Prediction for Sexual Offenders (2007), found that unstructured professional judgment was the least accurate way to predict sexual reoffending, and structured actuarial tools were more accurate.

Base rates matter too. The Bureau of Justice Statistics report Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14), published in 2019, found that 7.7% of sex offenders released in 30 states in 2005 were arrested for rape or sexual assault within nine years. A jury told only about the old offense hears none of that context unless the defense presents it.

Our attorneys build the defense in five parts:

1. Start before the petition. We engage during the multidisciplinary team evaluation, gather treatment and prison records, and present information that may keep the team from recommending a petition.
2. Retain an independent expert. Section 394.916 gives the person the right to his own examiner with access to the records.
3. Challenge the diagnosis. We test whether the “mental abnormality” is a real, current condition or a label built from the old offense.
4. Challenge the risk prediction. We cross-examine on the tools used, how they were scored, and whether the expert overrode them with unstructured judgment.
5. Prove lack of control is missing. Under Kansas v. Crane, the State must show serious difficulty controlling behavior, and we show the jury the evidence that the person has it under control.

Our Tampa criminal mental health lawyer page explains how we work with forensic psychologists and psychiatrists, and our post on Florida sex offender registration covers the registration duties that follow release.

Can a Person Be Released After Jimmy Ryce Commitment?

Yes. Under section 394.918, Florida Statutes, every committed person must have a mental condition examination at least once a year, and DCF must give him annual written notice of his right to petition for release. The court holds a limited hearing on whether there is probable cause to believe his condition “has so changed that it is safe for the person to be at large.”

If the court finds probable cause, it sets a release trial before the judge. At that trial, the State again bears the burden of proving by clear and convincing evidence that the person’s mental condition “remains such that it is not safe for the person to be at large.” Release petitions are expert cases too, and our attorneys prepare them with an independent evaluation rather than relying on the facility’s annual report.

How Soon Should You Hire a Lawyer for a Jimmy Ryce Case?

Hire one as soon as a release date is within two years and the conviction could qualify. The 545-day notice period means the evaluation may already be underway, and once a petition is filed and probable cause is found, there is no release before trial. For a person still facing the underlying charge, the time to think about Ryce exposure is during plea negotiations, because the offense of conviction decides whether the Act can apply. Our Tampa sex crimes lawyer team weighs that risk in every sex offense case we handle.

Frequently Asked Questions

How long can someone be held under the Jimmy Ryce Act?

There is no fixed limit: commitment lasts until a court finds, at an annual review or a release trial under section 394.918, that the person’s condition has so changed that release is safe. The Brancato Law Firm prepares release petitions with independent experts so the State must prove continued confinement each time.

Who decides whether a person is a sexually violent predator?

A judge decides unless either side demands a six-person jury in writing at least 5 days before trial, and a jury verdict for commitment must be unanimous under section 394.917. Our attorneys at The Brancato Law Firm weigh with each client whether a jury or the judge is the better choice for his facts, as explained on our Tampa sex crimes attorney page.

What crimes can lead to a Jimmy Ryce petition?

Qualifying offenses include sexual battery, lewd or lascivious offenses involving a child, kidnapping or false imprisonment of a child under 13 with a sexual offense, attempts or conspiracies to commit them, comparable federal and out-of-state felonies, and other crimes found to be sexually motivated. The Brancato Law Firm checks whether a prior conviction actually qualifies under section 394.912, because a petition built on a non-qualifying offense fails at the first element.

Can a Jimmy Ryce petition be dropped or dismissed in Florida?

Yes: the multidisciplinary team may decline to recommend a petition, the state attorney may decide not to file, and a petition fails at trial when the State cannot prove both elements by clear and convincing evidence. The Brancato Law Firm works to stop the case at the evaluation stage, before a petition is ever filed.

Does a person get his own expert in a Jimmy Ryce case?

Yes: section 394.916 lets the person retain experts who must be given reasonable access to him and his records, and an indigent person can ask the court to appoint one at state expense. Our team at The Brancato Law Firm works with forensic psychologists who evaluate the person and testify about the limits of the State’s risk predictions, as covered in our post on expert witnesses in criminal defense.

Is a Jimmy Ryce case criminal or civil?

It is civil, because the Florida Supreme Court held in Westerheide that commitment is based on current mental condition and is not punishment. The Brancato Law Firm still treats it like a major criminal trial, because the stakes are confinement with no end date.

Talk to a Tampa Defense Attorney About a Jimmy Ryce Case

The 545-day notice clock may already be running for someone you love in a Florida prison. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159, and our attorneys will review the conviction, the records, and the evaluation stage to find where the State’s case can be stopped. 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.

A prosecutor’s plea offer is a forecast of what a jury would do with the case. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys, I have watched that forecast drive outcomes in Hillsborough County courtrooms for more than 25 years. I have also tried more than 150 jury trials to verdict. Our attorneys prepare every case so that turning down a bad offer is a real option, and the felony trial described below shows what happens when the State’s forecast is wrong.

How often do Florida criminal cases go to trial?

Very few Florida criminal cases go to trial, because most end in a plea. In Missouri v. Frye, 566 U.S. 134 (2012), the U.S. Supreme Court noted that 94 percent of state convictions come from guilty pleas, relying on 2006 Bureau of Justice Statistics data, and called ours “a system of pleas, not a system of trials.”

Hillsborough County’s own numbers show the same pattern. The Hillsborough County Clerk of Court’s FY24 Annual Report lists 177 criminal jury trials for the fiscal year that ran from October 1, 2023, to September 30, 2024. Meanwhile, the Clerk’s monthly outputs report for County Fiscal Year 2024-25 shows 6,144 new circuit criminal (felony) cases opened from October 2024 through January 2025 alone, roughly 1,500 a month.

That gap is the reason trial experience is scarce. A lawyer can practice for years in Tampa without trying many cases to a jury. At The Brancato Law Firm, our attorneys build each case for trial from the first week, because the State’s offers reflect whether it believes the defense will actually try the case.

What happens right after you reject a plea offer?

After you reject a plea offer, the case stays open and moves toward trial on the original charges. In practice, five things can happen:

1. The offer can disappear. Florida Rule of Criminal Procedure 3.172(g) lets the prosecutor withdraw a plea offer at any time before the judge formally accepts it, as the Florida Supreme Court explained in Alcorn v. State, 121 So. 3d 419 (Fla. 2013). A rejected offer is not held for you.
2. The defense keeps building the case. Depositions, investigation, and motions continue. A successful motion to suppress or a damaging deposition can change the State’s view of its own case.
3. A new offer may come. Prosecutors reassess cases as evidence develops. A later offer can be better or worse than the first one.
4. You can still plead without a deal. A defendant can enter an open plea to the court, with no agreement, and let the judge decide the sentence within the range Florida law allows. When the scoresheet calls for prison, the defense can ask for a downward departure sentence below the guidelines.
5. The case goes to trial. A jury hears the evidence and decides whether the State proved every element beyond a reasonable doubt.

Each path has a cost, so the choice should come from a hard look at the evidence. Our guide on how to decide whether to accept a plea bargain in Florida walks through the factors our attorneys weigh with clients, and our explainer on how many jurors sit on a Florida criminal trial covers what the trial itself looks like.

Is there a trial tax in Florida?

Often, yes. Florida judges routinely sentence defendants more harshly after a guilty verdict than the plea offer they turned down, a gap defense lawyers call the “trial tax,” and the law generally allows it. The offer usually comes from the prosecutor, and after trial the judge sentences on everything the evidence showed. The line is the judge’s own role in plea negotiations. In Wilson v. State, 845 So. 2d 142 (Fla. 2003), the Florida Supreme Court held that when a judge took part in plea discussions and then imposed a harsher sentence after trial, courts look at the totality of the circumstances: whether the judge started the plea talks, whether the judge’s comments suggested the sentence would depend on going to trial, the size of the gap between the offer and the sentence, and whether anything in the record explains the increase other than the trial itself.

When a judge negotiated the plea, or said on the record that the sentence would depend on going to trial, a harsher sentence can be presumed vindictive under Wilson v. State, 845 So. 2d 142 (Fla. 2003). If the State cannot rebut that presumption, the remedy is resentencing before a different judge. The defendant does not get the rejected offer back. That is why the trial tax belongs in the decision from the start: the real comparison is the offer against the sentence this judge is likely to impose after a conviction. Our article on vindictive sentencing and the “trial tax” explains how our attorneys build that record.

Does your lawyer have to tell you about every plea offer?

Yes. Your defense lawyer must tell you about every formal plea offer the State makes. The U.S. Supreme Court held in Missouri v. Frye, 566 U.S. 134 (2012) that a lawyer who lets a formal offer expire without telling the client fails to provide the effective assistance the Sixth Amendment requires.

When bad advice causes a client to reject an offer, Florida law gives a path to relief. Under Alcorn v. State, 121 So. 3d 419 (Fla. 2013), the defendant must show a reasonable probability that he would have taken the offer with correct advice, that the prosecutor would not have withdrawn it, that the court would have accepted it, and that the result under the offer would have been less severe than the sentence imposed.

The final decision belongs to you. Our attorneys give a direct recommendation, but the client decides whether to plead or go to trial. A client of our firm once rejected an offer against advice on a cocaine possession charge and won at trial, a story told in our case study It’s the Client’s Call.

Why does trial experience matter when plea negotiations fail?

Trial experience matters because a prosecutor’s offer depends on how believable the threat of trial is. Law professor Stephanos Bibas made this point in Plea Bargaining Outside the Shadow of Trial, 117 Harvard Law Review 2463 (2004), writing that a lawyer who always plea bargains “cannot credibly threaten to go to trial.” Prosecutors learn which defense lawyers try cases and which ones do not.

When plea negotiations fail, the client needs a lawyer who can pick a jury, cross-examine the State’s witnesses, and argue reasonable doubt in closing. An attorney without that experience has one tool left, which is to persuade the client to take the deal. Our firm’s approach to trial preparation in Tampa criminal cases starts on day one, so the trial option is real when the State refuses to move.

Case study: a felony license case the State would not negotiate

This Hillsborough County case shows what happens when the State refuses to negotiate and the defense is ready to try the case.

What was the charge and what did the State offer?

I represented a client charged with felony driving while license revoked as a habitual traffic offender, often called felony DWLS. Under section 322.264, Florida Statutes, a driver becomes a habitual traffic offender after three qualifying convictions, such as DUI or driving while suspended, within five years. The license is then revoked for at least five years under section 322.27, Florida Statutes. Driving during that revocation is a third-degree felony under section 322.34(5), Florida Statutes, punishable by up to five years in prison under section 775.082, Florida Statutes.

My client’s driving record was poor. The State offered a prison sentence and refused to discuss probation, a shorter jail term, or any other alternative for a nonviolent driving offense. We tried to negotiate a proportionate result. The State would not move, so we went to trial.

Florida expanded the habitual traffic offender law in 2026. Chapter 2026-53, Laws of Florida, effective July 1, 2026, added driving without a valid license under section 322.03 to the list of offenses that count toward habitual traffic offender status in section 322.264, Florida Statutes. More Florida drivers will face this felony as a result. Our guides to driving while license suspended in Florida and to habitual traffic offender defense based on old convictions cover the charge in more depth.

What evidence did the State have?

On paper, the State had everything the law requires. A police officer personally saw my client driving. His license was revoked. The prosecutor introduced a certified driving record from the Florida Department of Highway Safety and Motor Vehicles (DHSMV) in Tallahassee showing the revocation.

Florida law made that paper easy to use. Under section 322.201, Florida Statutes, a certified DHSMV driving record is admitted without further authentication. In Card v. State, 927 So. 2d 200 (Fla. 5th DCA 2006), a Florida appeals court held that a certified driving record is not “testimonial,” so the State may use it without calling anyone from DHSMV. And in Robinson v. State, 329 So. 3d 103 (Fla. 2021), a Pinellas County case, the Florida Supreme Court held that the State does not even have to prove DHSMV notified the driver of the habitual offender revocation.

In our experience in the 13th Judicial Circuit, prosecutors prove the revocation with the certified record and rarely call a DHSMV witness. In this trial, the State relied on the certified record alone, and no one from DHSMV came to the Hillsborough County Courthouse to explain it.

How did the defense win?

The defense won by separating what the law allows into evidence from what a jury must believe. Card v. State, 927 So. 2d 200 (Fla. 5th DCA 2006) and section 322.201, Florida Statutes decide whether a record comes in. They do not decide whether the record proves guilt beyond a reasonable doubt. That question belongs to the jury, so a loss on admissibility does not end the issue.

My closing argument to the jury went like this:

The jury found my client not guilty. The State had the officer, the record, and the law on its side. It lost because it demanded prison when a proportionate offer would very likely have produced a conviction, and a jury held it to its burden of proof.

Each case is unique, and this argument will not fit every case or every jury. Past results do not guarantee future outcomes. The lesson is that a strong case on paper is still only as strong as the State’s ability to persuade six jurors, and an attorney who has tried cases knows how to find that gap. For another case where the State’s paperwork did not hold up at trial, read our case study The Paper Trail Defense.

What should you do before you reject a plea offer?

Before you reject a plea offer, make sure you and your lawyer know exactly what the State can prove and what you face if you lose. Many offers carry a deadline, and under Alcorn v. State, 121 So. 3d 419 (Fla. 2013) the State can pull an offer at any time before a judge accepts it.

Take these steps first:

1. Get the full offer in writing, including the charge, the sentence, and the deadline.
2. Review the discovery with your attorney: police reports, video, lab results, and witness lists.
3. Ask for your scoresheet so you know the lowest permissible sentence and the maximum if convicted.
4. Ask your lawyer how many jury trials he or she has tried to verdict, and how recently.
5. Decide before the deadline, with time to ask questions.

The Brancato Law Firm reviews plea offers for people charged in Hillsborough, Pinellas, and Pasco Counties. Learn more about our Hillsborough County criminal defense attorneys.

Frequently Asked Questions About Rejecting a Plea Deal in Florida

Can the prosecutor take back a plea offer after I reject it in Florida?

Yes, under Florida Rule of Criminal Procedure 3.172(g) the State can withdraw an offer at any time before the judge formally accepts the plea, as the Florida Supreme Court noted in Alcorn v. State, 121 So. 3d 419 (Fla. 2013). Our attorneys at The Brancato Law Firm get every offer’s terms and deadline in writing so clients can decide while the offer is still open.

Can I get a better plea deal after rejecting the first one?

Sometimes, because offers often improve when the defense uncovers problems with the evidence, wins a motion, or shows the State it is ready for trial, but nothing guarantees a second offer. The Brancato Law Firm keeps investigating after a rejected offer, because new facts are what move prosecutors.

Will I get more time if I lose at trial after turning down a plea?

Usually, yes, and Florida law generally allows that trial tax as long as the judge did not take part in the plea negotiations. The Brancato Law Firm builds the likely post-trial sentence into every plea decision, and when a judge who negotiated the plea sentences more harshly after trial, we challenge the sentence as vindictive under Wilson v. State, 845 So. 2d 142 (Fla. 2003) and seek resentencing before a different judge.

What if my lawyer never told me about a plea offer?

That can be ineffective assistance of counsel, because Missouri v. Frye, 566 U.S. 134 (2012) requires defense lawyers to communicate formal offers. The Brancato Law Firm can review the record to see whether an offer was lost through a lawyer’s error, keeping in mind that Florida requires proof that you would have taken the deal and that the court would have accepted it.

Can I still plead guilty on the day of trial in Florida?

Usually, yes: a defendant can still enter a plea before the trial starts, either to an offer the State still has open or as an open plea to the court, though earlier offers may be gone by then. The Brancato Law Firm tells clients what pleading at that point would likely mean for the sentence, so the choice is an informed one.

Can a felony driving while license revoked charge be beaten at trial in Florida?

Yes, it can be beaten, although the law makes the State’s job easier than in most felonies. Our Tampa criminal traffic attorneys at The Brancato Law Firm have tried this charge to a not guilty verdict by holding the State to its burden of proving, beyond a reasonable doubt, that the client drove and that the license was revoked as a habitual traffic offender.

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 Trial Attorney Before the Offer Expires

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

If the State has made an offer you cannot accept, the time to prepare for trial is before the offer deadline passes. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. Our attorneys will review the evidence, the scoresheet, and the offer, and tell you what a jury is likely to hear. You can call us at any hour.

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

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

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

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

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

That definition has three working parts:

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

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

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

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

Objections to evidence

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

Proffers of excluded evidence

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

Motions for judgment of acquittal

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

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

Jury instruction objections

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

Sentencing errors

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

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

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

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

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

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

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

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

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

Does the State admitting a mistake guarantee a reversal?

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

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

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

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

Can an unpreserved error still win an appeal?

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

What if your trial lawyer failed to object?

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

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

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

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

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

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

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

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

Frequently asked questions

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

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

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

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

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

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

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

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

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

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

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

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

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

Talk to a Florida trial lawyer before the deadline runs

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

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

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

When you are facing criminal charges in Tampa, the outcome of your case can depend entirely on your attorney’s willingness and ability to prepare for a serious fight in a Hillsborough County courtroom. The problem is that most criminal defense attorneys never expect to take your case to trial, and prosecutors know it.

At The Brancato Law Firm, we take a different approach. Lead attorney Rocky Brancato has tried over 150 jury cases to verdict across homicide,sex crimes, child abuse, and violent felonies during 25+ years of exclusive criminal defense. We prepare every case as if it will go before a jury, and that level of preparation is what creates real leverage, whether your case ends in a dismissal, a negotiated resolution, or a trial verdict.

Why So Few Criminal Cases in Florida Go to Trial

Pew Research Center data, drawn from the National Center for State Courts, shows that Florida’s criminal jury-trial rate sits at just 1.53%. 

Roughly 98% of criminal cases in Florida are resolved without a jury through plea agreements, dismissals, or diversion programs.

The National Association of Criminal Defense Lawyers calls the gap between plea offers and post-trial sentences the “trial penalty.” 

The Florida Bar’s Criminal Law Section has openly debated the institutional pressure on judges and prosecutors to move cases through the system as quickly as possible.

This creates a real problem for defendants. When your attorney’s primary strategy is negotiating a plea, prosecutors have little incentive to offer favorable terms. They know your attorney won’t push the case to trial, so they don’t have to.

What Happens When Your Attorney Only Negotiates

Some defense attorneys in the Tampa Bay area present themselves as trial lawyers but focus almost exclusively on negotiating plea deals. They may resolve cases quickly, but often before they have fully challenged the State’s evidence. This approach can leave you vulnerable and close the door on a potential dismissal or a more favorable resolution.

Choosing a criminal trial attorney who actually prepares for trial changes the dynamic entirely.

The Brancato Law Firm’s Two-Track Defense System

The Brancato Law Firm’s Trial-First Defense Approach

We are trial-ready, not deal-ready. Every case we take is prepared as if the trial is the destination.

• Trial Preparation from Day One. We assume nothing and immediately begin building a robust trial strategy. Our team prepares for a jury trial by filing motions to suppress evidence, challenging forensic conclusions, deposing witnesses, and issuing subpoenas for records the State would rather we not see. Rocky Brancato spent roughly 24 years at the Hillsborough County Public Defender’s Office, rising to Chief Operations Officer where he oversaw a staff of over 100 attorneys and 200+ total employees. That institutional knowledge of how the criminal justice system works, from charging policies to courtroom procedure, shapes how we build every case.

• A Reputation Prosecutors Already Know. Preparation alone is only part of the equation. Prosecutors in Hillsborough County know our firm and they know our track record across 150+ jury trials. When The Brancato Law Firm is on a case file, they don’t learn that we will be ready for trial. They already know it. That reputation creates immediate pressure for the State to honestly evaluate whether their evidence can survive cross-examination and forensic scrutiny.

How Trial Readiness Protects You in Tampa

Our preparation pressures the State to evaluate their case knowing we are prepared to expose any flaw in their arguments in open court. This is why trial readiness matters even when a case never goes to trial. It puts you in a position of strength at every stage.

When a favorable resolution is possible, our preparation is the reason it’s favorable. When trial is the only way to protect your rights, we are ready. We handle criminal defense across homicide, sex crimes, DUI, domestic violence, drug crimes, weapons offenses, child abuse, and violent crimes, and every case receives the same trial-level preparation.

The pressure to plead guilty is real. Defendants who exercise their right to trial sometimes face harsher sentences than what was offered in a plea, a concept known as vindictive sentencing or the “trial tax.” The best defense against this pressure is an attorney whose trial record makes prosecutors take the case seriously from the start.

Frequently Asked Questions

What is the difference between a plea negotiator and a criminal trial attorney in Tampa?

A plea negotiator focuses primarily on reaching a deal with the prosecution, often without fully testing the State’s evidence. A criminal trial attorney prepares every case for trial by filing motions, challenging forensic evidence, deposing witnesses, and building a complete defense strategy. That preparation gives your attorney stronger negotiating leverage because the prosecution knows your attorney can and will go to trial if the offer is not fair.

Do most criminal cases in Florida go to trial?

No. Fewer than 2% of criminal cases in Florida are decided by a jury, according to data from the National Center for State Courts. The remaining cases are resolved through plea agreements, dismissals, or diversion programs. This is why choosing an attorney who actually prepares for trial matters. When prosecutors know your attorney is unlikely to try the case, they have less incentive to offer a favorable resolution.

Talk to a Tampa Criminal Trial Attorney Today

If you are facing criminal charges in the Tampa Bay area, you need a defense team whose trial record speaks for itself. The Brancato Law Firm brings 150+ jury trials to verdict, 25+ years of exclusive criminal defense experience, and death-penalty-qualified trial preparation to every case.

Call (813) 727-7159 for a free, confidential consultation. We are available 24/7 for arrest emergencies.

The lawyer you hire in the first weeks after a felony arrest decides who examines the evidence, who speaks to the prosecutor before charges are filed, and whether anyone at the defense table is ready to try the case. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and I have watched that choice shape outcomes for more than 25 years in Hillsborough County courtrooms, including as former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. Our attorneys prepare every felony as if it will be tried, test the State’s forensic work with independent experts, and contact the prosecutor before the filing decision when the timing allows. This guide gives you the standards to measure any lawyer, including ours.

What should you look for in a Tampa criminal defense attorney?

Look first for verified jury trial experience in cases like yours, then for forensic skill, early intervention, and a named attorney who will personally handle the case. Advertising, review counts, and a polished website are the least reliable signals. Use these seven criteria as your scorecard:

1. Jury trials to verdict in cases like yours. Ask for a number, as lead counsel, and for the charges involved.
2. Forensic evidence skill. Ask how the firm reviews lab reports, phone extractions, toxicology, and autopsy findings, and which independent experts it uses.
3. Pre-file advocacy. Ask whether the lawyer will contact the State Attorney’s Office before the charging decision.
4. A named attorney. Get the name of the lawyer who will appear in court, in writing.
5. Verifiable credentials. Peer ratings and court-rule qualifications that cannot be purchased.
6. Local practice. Regular work in the 13th Judicial Circuit (Hillsborough) or the 6th Judicial Circuit (Pinellas and Pasco).
7. A clean record and clear fee terms. An eligible Florida Bar status, no unexplained discipline, and a written fee agreement that says what is and is not covered.

At The Brancato Law Firm, we encourage every prospective client to apply this list to us and to every other firm they interview.

Where should you start looking for a criminal defense lawyer in Tampa?

Start by asking people who watch defense lawyers work: other attorneys, judges, court staff, and law enforcement professionals you know. They see who prepares, who tries cases, and who folds under pressure, and one honest referral from inside the courthouse is often worth more than hours of online searching. If you know any lawyer, even one in a different field, ask who they would hire for a felony.

Many of our clients at The Brancato Law Firm come to us through referrals from other lawyers, including former prosecutors. Once you have two or three names, test each one against the criteria in this guide.

Why does trial experience matter if most cases never go to trial?

Trial experience matters because prosecutors make plea offers based on what they expect would happen in front of a jury. A defense lawyer who has tried serious felonies, and is visibly ready to try yours, changes that calculation. A lawyer who has never tried a case gives the State less reason to move.

The stakes in Hillsborough County are high and rising. In county fiscal year 2024-25, the Hillsborough County Clerk of Court opened 21,053 new circuit criminal (felony) cases, according to the Clerk’s monthly outputs report for October 2024 through September 2025. In fiscal year 2025-26, Hillsborough County sent 1,645 people to state prison as new commitments, up from 1,246 the year before, an increase of 32 percent, according to the Florida Legislature’s Office of Economic and Demographic Research in its July 2026 Criminal Justice Trends presentation.

A website’s list of practice areas tells you what a lawyer is willing to accept. It does not tell you what the lawyer has tried. Ask directly: “How many jury trials have you personally tried to verdict as lead counsel, and how many involved charges like mine?” A trial lawyer answers with numbers and examples. I have tried more than 150 jury trials to verdict, and our firm’s article on how trial preparation builds a stronger defense in Tampa explains why we prepare every case for a jury from the first week.

For the most serious cases, Florida publishes an objective benchmark. Florida Rule of Criminal Procedure 3.112 sets minimum standards for lawyers in capital cases: lead counsel should have at least 5 years of criminal litigation experience and should have been lead counsel in at least 9 state or federal jury trials of serious and complex cases, including murder trials. You can read the rule through The Florida Bar’s court rules page. Florida has no “death penalty certification”; a lawyer either meets the Rule 3.112 qualifications or does not. Our article on what a death penalty qualified lawyer is in Florida explains why that standard matters even in non-capital felonies.

How can you tell if a lawyer can challenge forensic evidence?

Ask the lawyer to explain, in plain terms, how the firm tests the State’s forensic evidence: what it requests in discovery, whether it deposes the analysts, which independent experts it retains, and when it files a motion to exclude unreliable science. A lawyer who cannot answer those questions will usually accept the lab report as written.

Forensic evidence is not as certain as it looks on television. In 2009, the National Research Council of the National Academies concluded that, apart from nuclear DNA analysis, no forensic method had been rigorously shown to consistently and with a high degree of certainty connect evidence to a specific person or source (Strengthening Forensic Science in the United States: A Path Forward, sponsored by the National Institute of Justice). The National Registry of Exonerations found that 39 of the 97 exonerations recorded in 2025, or 40 percent, involved false or misleading forensic evidence (National Registry of Exonerations 2025 Annual Report, April 2026).

Florida gives the defense real tools to test that evidence. Florida Rule of Criminal Procedure 3.220 requires the prosecutor to disclose expert reports and the results of scientific tests, and it lets the defense take depositions of the State’s witnesses, including experts who will testify. Under section 90.702, Florida Statutes, an expert’s opinion is admissible only if it rests on sufficient facts or data, comes from reliable principles and methods, and applies those methods reliably to the case. In In re Amendments to the Florida Evidence Code, 278 So. 3d 551 (Fla. 2019), the Florida Supreme Court adopted that Daubert standard as the rule for expert testimony in Florida courts, replacing the older Frye test. That is the legal basis for a defense motion to keep unreliable science away from a jury.

Prosecutors also have a constitutional duty to disclose favorable evidence. In Brady v. Maryland, 373 U.S. 83 (1963), the U.S. Supreme Court held that suppressing evidence favorable to the accused violates due process when the evidence is material to guilt or punishment. The 2025 Registry report lists failure to disclose exculpatory evidence in 55 exonerations, which is why our attorneys press for the complete lab file in every forensic case.

Forensic work has decided cases for our firm. In a first-degree murder case, our Daubert motion on the DNA evidence led to the death penalty being withdrawn. Learn more on our Tampa forensic science attorney page, in our article on what a forensic defense lawyer does, and in our guide to why expert witnesses are not optional in major crimes cases.

Can a defense attorney help before charges are filed in Hillsborough County?

Yes. In Hillsborough County, the State Attorney’s Office for the 13th Judicial Circuit decides whether to file charges, file reduced charges, or decline the case, and a defense lawyer can present evidence and mitigation to the prosecutor before that decision is made. That window is short. If the person arrested is in custody, Florida Rule of Criminal Procedure 3.134 requires formal charges within 30 days, with release on the 33rd day if none are filed, and in no event may an uncharged person stay in custody beyond 40 days.

Our attorneys contact the assigned prosecutor right away on unfiled cases, provide information the police report left out, and argue against filing or for a lesser charge. When a person is under investigation and not yet arrested, our representation before charges are filed can also include managing contact with detectives. Many of the best outcomes in criminal defense leave no public record, because the case was never filed.

Local practice matters at this stage. Hillsborough County does not offer pretrial services supervision as a release option, though some nearby counties do, so release in Hillsborough usually comes through a cash bond, a surety bond, or release on recognizance. A lawyer who works in the Hillsborough County courts every week knows those differences before the first appearance hearing.

Who will actually handle your case?

Before you pay, get the name of the attorney who will argue motions, take depositions, and try your case, in writing. Some firms meet clients with a senior lawyer and then assign the case to someone the client has never met. That is not always a problem, but you are entitled to know.

• Ask who will appear at each hearing and who will try the case.
• Search the firm and the attorney on the Florida Division of Corporations (Sunbiz) search page to confirm the lawyer is an officer of the firm you are hiring, and not a separate company working under a marketing agreement.
• After you hire, check that the notice of appearance filed with the clerk lists the firm and lawyer you were told would represent you.
• For large or statewide brands, read employee reviews on Glassdoor and Indeed. Patterns of turnover or sales pressure are worth knowing.

At The Brancato Law Firm, clients receive case updates through a secure client portal, can send confidential messages through it, and our attorneys return client calls within 24 hours.

Which credentials can you verify, and which can be bought?

The credentials worth weighing are the ones awarded by peers or set by court rule, because they cannot be purchased. Check each one at the source.

Rocky Brancato holds the AV Preeminent rating and has been selected to Super Lawyers. Our article on whether to hire a former public defender in Tampa explains what that background does, and does not, tell you about a lawyer.

What red flags should end a consultation?

A guarantee of any result should end the conversation. Rule 4-7.13 of the Rules Regulating The Florida Bar treats lawyer advertising that a prospective client can reasonably read as a guaranty of success or specific results as deceptive and inherently misleading. No honest lawyer can promise what a judge or jury will do. Other warning signs:

• Selling relationships instead of strategy. Every experienced local lawyer knows the judges and prosecutors. A lawyer who leads with “I know the judge” has not told you how they will attack the evidence.
• No named trial attorney. If the firm will not commit a specific lawyer, expect to meet someone new at your first hearing.
• Review counts from low-stakes cases. Hundreds of five-star reviews earned on traffic tickets say little about defending a felony or cross-examining a DNA analyst.
• A short prosecutor stint sold as insider knowledge. Prosecution experience can be valuable after years of serious trials. In our experience, many prosecutors leave the State Attorney’s Office within about two years, so ask how long they served, in which division, and how many jury trials they tried.
• Pressure to sign today. A consultation should give you clear answers and time to decide.

If you already hired a lawyer and see these signs, our guide on how to switch criminal defense lawyers in Florida walks through the process.

How do criminal defense fees work in Tampa?

Most Tampa criminal defense lawyers charge a flat fee set by the charge and the complexity of the evidence, and Florida does not allow contingency fees in criminal cases. Rule 4-1.5(f)(3)(B) of the Rules Regulating The Florida Bar prohibits a contingent fee for representing a defendant in a criminal case.

Read every line of the retainer agreement before signing. Some firms charge a separate trial fee, which can create a financial incentive to settle before trial preparation begins. Attorney fees also differ from costs, which are third-party expenses such as court reporters, investigators, and expert witnesses. Ask whether costs are included or billed separately.

At The Brancato Law Firm, our flat fees cover the whole case, including trial, and are quoted on the facts and intricacy of the case. Costs are separate and are billed at actual cost. Every client also receives our in-house comprehensive mitigation report. For typical ranges by charge, see how much a criminal defense attorney costs in Tampa.

When is a public defender the better choice?

A public defender is often the better choice for a person who cannot afford an experienced private lawyer, and a dedicated public defender with real trial experience will usually outperform a bargain-rate, high-volume private practice. Under section 27.52, Florida Statutes, an applicant is indigent if household income is at or below 200 percent of the federal poverty guidelines or the applicant receives certain public benefits, and each application carries a $50 fee.

As former Chief Operations Officer of the Hillsborough County Public Defender’s Office, I saw what its felony and major crimes lawyers do every day. Our article on public defender versus private attorney in Tampa gives an honest comparison.

What should you bring and ask at a consultation?

Bring every document you have and a written timeline, and ask questions that require specific answers. Useful documents include the arrest report or charging affidavit, bond paperwork, any letters from the State Attorney’s Office or the court, and the names and contact information of witnesses.

How soon should you hire a lawyer after an arrest in Tampa?

Hire a lawyer as early as you can, ideally before the first appearance hearing and before the State Attorney’s filing decision. In Hillsborough County, first appearance is held within 24 hours of arrest, with the arrested person appearing by video from the jail. For a person in custody, the 30-day charging clock under Rule 3.134 starts at arrest. Surveillance video, phone records, and witness memories can disappear in that same window. Our guide on what to do after being arrested in Tampa covers the first 48 hours and the first 30 days step by step.

What results has our firm obtained in serious felony cases?

These are real results from our firm’s homicide and major crimes practice.

Past results do not guarantee future outcomes. Every case depends on its own facts. More results are on our Tampa homicide attorney page.

Frequently asked questions about choosing a criminal defense attorney in Tampa

How many jury trials should a felony defense lawyer have tried?

There is no legal minimum for most felonies, but Florida’s capital case rule is a useful benchmark: lead counsel should have tried at least 9 serious and complex jury trials. The Brancato Law Firm is led by a lawyer with more than 150 jury trials to verdict, and our attorneys prepare every felony as if it will be tried.

Do I need a different lawyer for a felony than for a misdemeanor in Tampa?

Often, yes, because felonies are prosecuted in circuit court with higher stakes, more forensic evidence, and a greater chance of trial. At The Brancato Law Firm, our attorneys handle both, and felony defense, including homicide and sex crimes, is the core of our practice.

How do I find a Spanish-speaking criminal defense attorney in Tampa?

Ask each firm whether a lawyer, and not just a receptionist, can speak with you in Spanish, and search The Florida Bar’s directory using its languages filter. At The Brancato Law Firm, attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French, and our Spanish and Haitian Creole criminal defense page explains how we work with Spanish-speaking clients and families.

What should I do if my current criminal defense lawyer is not doing anything?

Ask your lawyer in writing for a case status update and a plan, and get a second opinion if you do not receive one. The Brancato Law Firm regularly reviews cases for people who already have a lawyer, and our guide to changing defense lawyers in the middle of a Florida case explains how a substitution of counsel works.

What should parents do when a college-age son or daughter is arrested in Tampa?

Help your child stay silent with police, avoid discussing the facts on recorded jail calls, and contact a defense lawyer before the first appearance. Our attorneys at The Brancato Law Firm often work with parents on bond and first appearance, while keeping the attorney-client relationship with the student, who is the client. Our guide to the first steps after a Tampa arrest covers the rest.

Can a Tampa criminal defense lawyer handle a case in St. Petersburg or Clearwater?

Yes, a Tampa-based lawyer can handle cases from St. Petersburg and Clearwater, which are prosecuted in Pinellas County in the 6th Judicial Circuit, and any lawyer licensed in Florida can appear there. The Brancato Law Firm serves Pinellas and Pasco Counties as well as Hillsborough; see our Pinellas County criminal defense page.

Is pre-file advocacy worth it if I have not been arrested yet?

Often, yes, because the time before charges are filed is when a defense lawyer can still influence whether the State files at all. The Brancato Law Firm offers pre-file advocacy under a separate flat fee that is credited toward the full fee if charges are later filed.

For more about how we use forensic evidence in our defense strategies, visit our Tampa criminal forensic science defense page.

Your next step is a consultation, and the earlier it happens, the more options you keep. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, defends felony and misdemeanor charges in Hillsborough, Pinellas, and Pasco Counties. Call (813) 727-7159 at any hour, ideally before the first appearance hearing or the State Attorney’s filing decision. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French.

The Brancato Law Firm, P.A.

620 E. Twiggs Street, Suite 205, Tampa, FL 33602

(813) 727-7159

Serving Hillsborough, Pinellas, and Pasco Counties

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

For a longer treatment of this subject, see Rocky’s book, How to Choose a Major Crimes Attorney – or Any Criminal Defense Attorney for That Matter.

On January 7, 2026, an ICE agent shot and killed Rene Good during an immigration enforcement operation in Minneapolis. Notably, multiple cameras captured the encounter from multiple angles. The footage is publicly available, and millions have now watched it.

And yet, ask ten people what they saw, and you will likely get two verdicts: justified or unjustified. Not ten thoughtful, nuanced perspectives. Two. And which conclusion a person reaches often depends less on the footage and more on the beliefs they held before they ever pressed play.

Watch the online discourse. Read the comments. People who have viewed identical footage from identical angles reach diametrically opposed conclusions. Some see an agent acting in self-defense. Others see an unjustified killing. Both sides are certain. Moreover, each side believes the video proves their position beyond any doubt.

For purposes of this article, we take no public position on the Good case, on immigration policy, or on any party involved. That is not the point. The point is what this case reveals about jury selection in America today. For a criminal defense attorney who has spent 25 years selecting juries, this case illustrates something that should concern every citizen: the increasing difficulty of empaneling a jury capable of rendering a verdict based solely on the evidence presented in a courtroom.

Why the Good Case Matters for Every Defendant

If you were charged with a crime tomorrow, would you trust twelve strangers to evaluate your case fairly? Or would you worry that their verdict might depend less on the facts and more on how they feel about people who look like you, talk like you, or hold beliefs like yours?

The Good case is extraordinary only in its visibility. However, the same dynamic plays out in courtrooms across Florida every day—in domestic violence cases, where jurors bring their own relationship experiences to the evidence; in self-defense cases, where jurors project their own beliefs about when violence is justified; and in drug cases, where jurors carry assumptions about addiction, criminality, and personal responsibility.

The Filter We All Carry

Because when we watch a confrontation between a citizen and law enforcement, we are not just watching. We are filtering. Every interaction we have had with police, whether positive or negative, shapes what we perceive. Likewise, every news story we have consumed influences our interpretation. In addition, every opinion we have formed about immigration enforcement, about compliance during traffic stops, about when force is reasonable—all of it becomes a lens through which the supposedly “objective” video evidence passes.

This phenomenon is not limited to cases involving law enforcement. It appears in domestic violence cases, where jurors bring their own relationship experiences to the evidence. Similarly, self-defense cases see jurors projecting their own beliefs about when violence is justified. Furthermore, drug cases reveal jurors carrying assumptions about addiction, criminality, and personal responsibility.

How Personal Experience Shapes Perception

Why the Jury May Be Your Only Fair Shot

In Florida, judges are elected. They are supposed to evaluate the facts and apply the law impartially, without regard to public opinion. But judges are human. And an elected judge facing reelection may be more susceptible to political currents than twelve jurors who have no political career to protect. In high-profile or politically charged cases, that susceptibility can matter.

Many citizens have lost faith in the impartiality of elected judges. Whether that perception is fair or not, it exists. And for a defendant facing serious charges, that perception can make the jury feel like the only truly independent body in the courtroom.

Accordingly, this is precisely why selecting the right jury has never been more important. When jurors carry strong preconceptions into the box, the ability to identify those biases during voir dire becomes the difference between conviction and acquittal.

Voir Dire Has Never Mattered More

The Sixth Amendment guarantees the accused a trial by an impartial jury. But what does “impartial” mean when the case touches on issues that have become tribal identity markers?

Specifically, in high-profile cases involving police, politics, or social controversy, attorneys on both sides face the same dilemma: how do you find twelve people who can genuinely set aside their preconceptions and evaluate the evidence as presented in court, not as interpreted through cable news, social media, or their own experiences?

Frankly, the honest answer is that it may be impossible to find jurors with no opinions. Instead, the goal becomes finding jurors who possess the intellectual honesty to recognize their biases and the integrity to consciously set them aside. That is a different and far more difficult task than simply finding people who have not heard of the case.

The Sleeper Juror Problem

Experienced trial attorneys, particularly those who have tried death penalty cases, know that some prospective jurors lie to get on a jury. These are called “sleeper jurors.” These individuals have an agenda—they have already decided the verdict they want to deliver. Consequently, they will say whatever is necessary during voir dire to get themselves seated.

A sleeper juror will deny having seen media coverage they have watched extensively. Moreover, such jurors will claim to have no opinion on the ultimate issue when they have already made up their mind. Additionally, they present themselves as open-minded and fair when they are neither. Their goal is to survive voir dire, get seated, and then accomplish their predetermined verdict.

The Fair Jurors Who Fight to Leave

Meanwhile, a perverse opposite dynamic occurs. Many prospective jurors who would be genuinely fair, who have no agenda, and who would evaluate the evidence objectively, lie to get off the jury. Perhaps they cannot afford to miss work. Others have childcare obligations or no paid leave. For these individuals, jury service would create a genuine hardship.

So these fair-minded people manufacture disqualifying biases. As a result, they claim prejudices they do not hold and exaggerate opinions they barely have. Ultimately, they will do anything to get excused and return to the lives they cannot afford to put on hold.

As a result, this creates an environment where the jury pool is systematically skewed. The people most motivated to serve are often the least impartial. Conversely, the people most likely to be fair are often the most motivated to leave. Navigating this reality requires an attorney who has seen it play out hundreds of times.

Why Experience Matters in Jury Selection

Essentially, effective jury selection is part science and part intuition, developed over years of watching how people respond to questions, how they interact with other prospective jurors, and what their body language reveals that their words do not.

Experienced criminal defense attorneys actively read subtle cues. They spot the prospective juror crossing their arms defensively when discussing law enforcement, despite saying the right words. They hear the tone harden when self-proclaimed open-minded jurors discuss certain neighborhoods. Experienced attorneys see the eyes telling a different story, even as a head nods along.

What to Ask Your Attorney

Ultimately, if you or a loved one faces serious criminal charges, the attorney’s experience with jury selection should be near the top of your questions. Consider asking:

Frequently Asked Questions About Jury Selection

The Stakes Have Never Been Higher

Abraham Lincoln once observed that “the greatest service of citizenship is jury duty.” He understood that the jury is the ultimate check on government power. Twelve citizens, drawn from the community, hold the power to stand between an individual and the full force of prosecution. No judge, no politician, no official can override their unanimous verdict of not guilty.

But we live in an era where Americans increasingly sort themselves by belief, consume media that reinforces their existing views, and approach controversial topics with certainty rather than curiosity. The Rene Good case is simply the most visible recent example of a dynamic that plays out in courtrooms every day.

If you face serious criminal charges, your freedom may depend on your attorney’s ability to identify twelve people who can genuinely listen, genuinely deliberate, and genuinely base their verdict on the evidence rather than on the beliefs they carried into the courtroom.

Indeed, Lincoln was right. Jury duty remains the greatest service of citizenship. But for those whose lives hang in the balance, everything depends on who fills those twelve seats.

620 E Twiggs Street, Suite 205, Tampa, FL 33602

Former Chief Operations Officer, Hillsborough County Public Defender’s Office

Serving Hillsborough, Pinellas, and Pasco Counties

Related Pages

• Tampa Criminal Defense Attorney
• Social Media in Criminal Cases
• Do I need a Criminal Defense Lawyer if I am Innocent?

A Tampa Criminal Defense Case Study

By Rocky Brancato

One of the most important principles in criminal defense is one that clients don’t always understand at first: it’s your case, not mine.

My job is to advise you. I tell you what the evidence shows, what the law says, what the likely outcomes are, and what I think you should do. I give you the benefit of 25 years of experience in Tampa’s criminal courts. You get the truth, even when it’s not what you want to hear.

But at the end of the day, the decision is yours. You decide whether to take a plea or go to trial. You decide whether to testify. The amount of risk you are willing to assume is yours. It’s your liberty on the line, your life that will be affected by the outcome. I can guide you, but I can’t make the decision for you.

And sometimes, the client makes a different choice than I would have recommended.

Sometimes they’re wrong. But sometimes—like in the case I’m about to tell you about—they’re right.

The Case

My client was charged with cocaine possession. The facts, on their face, looked bad for him.

He had experienced a medical emergency and was transported to the hospital. When hospital personnel removed his clothes for treatment, they discovered cocaine in his pants pocket—along with his wallet containing his identification and money. The hospital stored his belongings, and when the cocaine was discovered, they reported it to law enforcement.

The State was able to establish chain of custody. The cocaine was real. It was in his pants. His wallet—with his ID—was in the same pocket. Those facts weren’t in dispute.

The State offered a plea deal. Under the circumstances—the evidence, the charge, the likely outcome at trial—I thought he should take it. I told him so directly. That’s my job: to give honest advice, not to tell clients what they want to hear.

He looked at me and said no. He wanted to fight.

The State’s Case

The State’s theory was straightforward: actual possession.

Under Florida law, actual possession means the drugs were on your person—in your hand, in your pocket, under your direct physical control. The cocaine was in my client’s pants. His pants were on his body. His wallet with his ID was in the same pocket. Open and shut.

And technically, the State was right. He was in actual possession. The drugs were on him. When he was conscious, he had dominion and control over his own pants and whatever was in them.

This was the kind of case where most defense attorneys would tell their client there’s nothing to fight. The drugs were on you. They can prove it. Take the deal.

But I’ve been doing this for 25 years. And experience teaches you to look for what’s not obvious.

Seeing What Others Miss

When I reviewed the evidence, I noticed something that the State apparently hadn’t considered significant:

No one ever saw my client with conscious dominion and control over the cocaine.

Think about it. The drugs were discovered by hospital staff after he was already incapacitated from a medical emergency. By the time anyone found the cocaine, he was unconscious or being treated. No witness could testify that they saw him reach into his pocket. There was no witness who saw him touch the drugs. No one saw him conscious and in control of the cocaine at any point.

The State could prove the drugs were in his pants. They could prove chain of custody. They could prove actual possession in the technical sense—the drugs were on his person.

But could they prove he knowingly possessed them? Could they prove conscious dominion and control?

That was the gap. And gaps create reasonable doubt.

“Constructive Spiritual Possession”

I needed to frame this argument in a way the jury would understand and remember. Legal distinctions can sound abstract. Jurors need something concrete—something that sticks.

So I coined a phrase: “constructive spiritual possession.”

The argument went like this: Yes, the cocaine was in his pants. Yes, those pants were on his body. But the State is asking you to convict him of knowingly possessing those drugs, and the only evidence they have is that the drugs were found on an unconscious man being treated for a medical emergency.

No one saw him conscious with those drugs. No one saw him exercise knowing control. The State wants you to infer possession from proximity—to assume that because the drugs were in his pants, he must have known they were there and must have been in control of them.

But that’s not proof. That’s speculation. That’s constructive spiritual possession—the drugs were in the same space as his body, so he must be guilty. Is that enough to take away someone’s freedom?

Preparing the Client to Testify

There was another factor in this case: my client wanted to testify.

This is always a risk. When a defendant takes the stand, they open themselves up to cross-examination. The prosecutor’s job is to rattle them—to get them angry, confused, or defensive. To make them say something they shouldn’t. Many defendants hurt their own cases by testifying.

But again—it’s the client’s call. The decision whether to testify belongs to the defendant, not the attorney.

So I prepared him. I gave him rules for testifying: Answer the question you’re asked, nothing more. Don’t volunteer information. Stay calm. Listen to the entire question before answering.

And I warned him: The prosecutor is going to try to make you angry. That’s the strategy. They want you to lose your temper, to get defensive, to slip up. Don’t take the bait.

He listened. He heeded the advice.

On the stand, he was calm. He was composed. He answered the questions directly without being evasive. When the prosecutor pushed, he didn’t push back—he stayed measured. He told his story in a way that was credible and human.

His performance on the stand, combined with my argument about the absence of any witness to conscious possession, gave the jury what they needed.

The Verdict

The jury came back: Not guilty.

Cocaine in his pants. His wallet with his ID in the same pocket. Chain of custody established. And a not guilty verdict.

If my client had followed my recommendation, he would have taken the plea. He would have a drug conviction on his record today. Instead, he walked out of that courtroom with his record clean.

He made the call. I made the argument. He executed on the stand. And together, we won.

The Lesson

This case reminds me of two things.

First: respect client autonomy. I’ve been doing this for 25 years. I know the statistics, I’ve seen the patterns, I have a sense of how cases tend to go. But I don’t know everything. Sometimes the client sees something I don’t—maybe it’s confidence in their own ability to testify, maybe it’s a willingness to take a risk I wouldn’t take, maybe it’s just the conviction that they can live with a loss but can’t live with giving up without a fight.

Second: see what’s not obvious. The State saw a slam dunk—drugs in his pants, wallet with his ID, chain of custody. What they didn’t see, because they weren’t looking, was the absence of any witness to conscious possession. That gap was there the whole time. It just took an attorney who knew how to find it and how to make a jury see it.

What This Means for You

If you’re facing criminal charges, you need an attorney who will be honest with you—who will tell you the truth about your case, even when it’s uncomfortable. You need someone who will give you real advice based on experience, not just tell you what you want to hear.

But you also need an attorney who respects your right to make decisions. Who won’t pressure you into a plea deal because it’s easier for them. Who, when you decide to fight, will fight with everything they have.

And you need an attorney who can see what others miss. Who can find the gap in the State’s case when everyone else sees a slam dunk. Who knows how to frame an argument so a jury understands it and remembers it.

About the Author

Tampa Attorney Rocky Brancato is the founding attorney of The Brancato Law Firm, P.A., a criminal defense practice in Tampa, Florida. With more than 25 years of experience—including service as Chief Operations Officer of the Hillsborough County Public Defender’s Office—Rocky has tried hundreds of cases and developed a reputation for finding what others miss. He believes in honest advice and client autonomy: your case, your decision, his fight.

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

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