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

What is the statute of limitations for crimes in Florida?

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

When is a prosecution “commenced” in Florida?

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

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

Can the statute of limitations be paused?

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

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

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

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

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

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

Why do so many old accusations surface years later?

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

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

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

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

How does the fraud discovery rule extend the deadline?

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

How do you raise a statute of limitations defense?

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

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

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

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

Frequently asked questions

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

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

Is there a statute of limitations for murder in Florida?

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

Does leaving Florida stop the statute of limitations?

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

Can the State charge a child sex offense decades later?

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

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

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

Can a misdemeanor be filed after one year?

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

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

Ask us whether your case is too old to prosecute

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

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

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

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

What is entrapment under Florida law?

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

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

What are the two kinds of entrapment in Florida?

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

How does a Florida court decide subjective entrapment?

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

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

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

What counts as police inducement?

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

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

How do prosecutors try to prove predisposition?

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

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

When does police misconduct violate due process?

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

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

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

How does entrapment work in online sting cases?

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

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

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

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

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

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

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

Can entrapment get charges dismissed before trial?

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

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

What should you do if you think police entrapped you?

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

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

Frequently asked questions about the entrapment defense in Florida

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

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

Who has the burden of proof for entrapment in Florida?

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

Does a prior criminal record defeat an entrapment defense?

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

Can entrapment charges be dropped in Florida?

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

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

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

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

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

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

Talk to a Tampa defense attorney about entrapment

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

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

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

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

If you were arrested for loitering and prowling in Tampa, the charge itself is often the smaller problem; the search that followed it may have produced a felony. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former police academy instructor who taught officers criminal procedure, I know what officers are trained to observe before making this arrest. I’m Rocky Brancato, and in more than 25 years in Hillsborough County courtrooms I have seen this statute used when officers had no other basis to detain someone. Our attorneys challenge these arrests across Hillsborough, Pinellas, and Pasco Counties.

What Does Florida’s Loitering and Prowling Law Say?

Section 856.021, Florida Statutes, makes it unlawful “to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” The statute lists circumstances an officer may consider, including whether the person “takes flight upon appearance of a law enforcement officer, refuses to identify himself or herself, or manifestly endeavors to conceal himself or herself or any object.”

The Florida Supreme Court upheld the statute in State v. Ecker, 311 So. 2d 104 (Fla. 1975), but only with limits. The court held that “proof of both elements is essential,” that the officer “must be able to point to specific and articulable facts” showing a breach of the peace is imminent or public safety is threatened, and it warned that using the statute as a “catchall” offense may make an arrest unconstitutional. The arresting officer in one of the Ecker cases had testified, “I arrested him for loitering because we could not prove anything else.”

What Must the State Prove in a Florida Loitering and Prowling Case?

The State must prove both elements beyond a reasonable doubt, and Florida courts read each one narrowly.

Element 1: Conduct not usual for law-abiding people

The first element requires more than being out late or being somewhere an officer finds odd. In Mills v. State, 58 So. 3d 936 (Fla. 2d DCA 2011), Clearwater officers saw a man walk out from behind a closed business at 12:30 a.m. in an area hit by recent burglaries, turn back when he saw the cruiser, and stand behind a tree against the building. The Second District held he was “at most a vaguely suspicious presence” whose conduct “did not come close to the actual commission or attempted commission of a substantive crime,” and it ordered the pills found in the search suppressed.

Element 2: Justifiable and reasonable alarm

The second element requires circumstances that would alarm a reasonable person about an imminent threat to people or property. Mills reaffirmed that the statute “must be applied with special care” and “is not to be used as a ‘catchall’ provision whereby police may arrest citizens where there is no other basis which would justify their detention.”

Do Both Elements Have to Happen in the Officer’s Presence?

Yes. Because loitering and prowling is a misdemeanor, the officer must personally see both elements before acting. In Fields v. State, 292 So. 3d 889 (Fla. 2d DCA 2020), a Lee County deputy responding to a 911 call about a possible attempted home entry found Tamar Fields walking in the road at about 10 p.m. The Second District held that “both elements must occur in the officer’s presence and be complete before the officer takes action,” so the 911 call could not count. Walking down the street at 10 p.m. was not unusual, and the court reversed Fields’ convictions, including a cocaine trafficking charge, and ordered him discharged.

The rule is still being applied. In Saintil v. State, No. 4D2024-0624 (Fla. 4th DCA Mar. 26, 2025), a site manager reported someone looking into car windows and trying a car door. The officer who responded saw Benny Saintil, who matched the description, walking from behind a closed building with his hood up. The Fourth District held that “both elements of loitering or prowling must be committed in a police officer’s presence,” found the officer’s own observations “legally insufficient,” and ordered the conviction vacated, even though the situation justified an investigation.

For readers in our area, the Second District’s decisions matter most. Mills and Fields both come from the Second District Court of Appeal, which hears appeals from Hillsborough, Pinellas, and Pasco County courts, so trial judges here follow them. Our Pinellas County criminal defense attorney and Hillsborough County criminal defense attorney pages explain how misdemeanor cases move through those courthouses.

Can a Loitering Arrest Lead to Felony Charges?

Yes. A loitering and prowling arrest allows a search incident to arrest, and that search often produces drugs, a weapon, or stolen property. If the loitering arrest lacked probable cause, the evidence from the search can be suppressed as the fruit of an unlawful arrest, as happened in Mills and Fields. That is why our attorneys attack the loitering arrest first, even when a felony is the bigger charge; our Tampa drug crimes attorney page explains how those drug cases are defended.

The stakes are real locally. Hillsborough County recorded 10,502 drug arrests in 2025, up from 8,124 in 2024, according to FDLE arrest data published by Florida Health CHARTS. Some of those cases begin with a stop for loitering, trespass, or a “suspicious person” call. Our guide on trespass in Florida covers the related charge officers often use on private property.

Does Being in a High-Crime Area Justify a Loitering Arrest?

No. Presence in a high-crime area is a factor, but it cannot carry the arrest by itself. Mills was in an area that had been hit by a string of burglaries, and the arrest still failed. Research also questions how officers apply the label. In a 2019 California Law Review article, The End of Intuition-Based High-Crime Areas, Ben Grunwald and Jeffrey Fagan analyzed more than two million New York Police Department stops from 2007 to 2012 and found that officers’ high-crime-area assessments were “nearly uncorrelated with actual crime rates.” When an officer’s report leans on the phrase, our attorneys demand the data behind it.

What Are the Defenses to Loitering and Prowling in Florida?

The strongest defenses come from the statute and the officer’s own report. These are the questions our attorneys ask in every case:

1. Did the officer personally see both elements? A neighbor’s report or a 911 call cannot supply either element.
2. Was the conduct more than vaguely suspicious? Walking, standing, or sitting in a car at night, without conduct pointing to an imminent crime, is not enough under Mills and Saintil.
3. Was there a real threat to people or property? The alarm must be justifiable and reasonable, backed by specific facts under Ecker.
4. Did the officer ask you to identify yourself and explain before arresting? If not, section 856.021(2) bars a conviction unless flight or another circumstance made it impracticable.
5. Was your explanation true? If it would have dispelled the alarm had the officer believed it, the statute again bars a conviction.

Our motion to suppress guide explains how these issues are raised before trial, and our post on Case v. Montana and welfare checks covers another common route to warrantless police contact.

How Has Our Firm Defended Loitering and Prowling Cases?

Our firm has won these cases by holding officers to what they personally saw:

Past results do not guarantee future outcomes.

What Should You Do If You Are Stopped for Loitering?

Stay calm, identify yourself if lawfully detained, and do not consent to a search. These steps protect the defenses described above:

1. Give your name if asked. Refusing to identify yourself is one of the circumstances the statute lets an officer consider.
2. Do not run. Flight is also a listed circumstance, and it can excuse the officer from asking for an explanation.
3. Do not consent to a search. Say clearly that you do not consent; consent can waive suppression arguments.
4. Write down what happened as soon as you can, including what the officer said and whether you were asked to explain.
5. Call a defense attorney before your first court date. Body camera footage and 911 recordings should be requested early.

Frequently Asked Questions About Loitering and Prowling in Florida

Is loitering and prowling a felony in Florida?

No, it is a second-degree misdemeanor with a maximum of 60 days in jail and a $500 fine. The Brancato Law Firm treats it seriously anyway, because the search after the arrest is often where felony charges come from.

Can I be charged with loitering if a neighbor called 911 about me?

The call alone cannot prove the charge, because both elements must occur in the officer’s presence under Fields v. State. Our attorneys at The Brancato Law Firm compare the 911 recording with the officer’s body camera to separate what was reported from what was seen.

Can loitering and prowling charges be dropped in Florida?

Yes, and they often are when the officer did not see both elements or skipped the required chance to explain. The Brancato Law Firm files motions to dismiss and motions to suppress in these cases; see our suppression guide.

Do I have to explain why I am somewhere if police stop me for loitering?

The statute requires the officer to give you the chance to identify yourself and explain before an arrest, and a true explanation that would have dispelled the alarm bars a conviction. The Brancato Law Firm advises clients to identify themselves when lawfully detained and to talk with counsel before giving detailed statements.

Is sitting in a parked car at night loitering in Florida?

Not by itself, because the State must show conduct not usual for law-abiding people plus a justifiable alarm for nearby people or property. Our attorneys at The Brancato Law Firm look at exactly what the officer observed before the arrest.

Will a loitering and prowling conviction show up on my record?

Yes, a conviction creates a criminal record, and a withhold of adjudication still leaves an arrest record. The Brancato Law Firm works to resolve these cases with a dismissal where the facts allow; our Hillsborough County defense page explains the local process.

Talk to a Tampa Defense Attorney About a Loitering Arrest

Your first move should be getting the body camera footage and the 911 recording before they are overwritten. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159, and our attorneys will compare what the officer saw with what the report claims. 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 Drug Crimes Attorney page.

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

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

If you were just arrested, or charged and given a court date, the first question is usually whether this can go away. Often it can, and the work that makes it happen starts long before trial. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and former Chief Operations Officer of the Hillsborough County Public Defender’s Office, where I oversaw a staff of over 100 attorneys. Our attorneys work every case for an early dismissal when the facts allow it, in Hillsborough, Pinellas, and Pasco Counties.

This guide explains who can drop a case, the difference between dropped and dismissed, how the 2026 rule change affects motions to dismiss, the Hillsborough diversion programs, and how often Florida cases actually end this way.

Who decides whether charges are dropped in Florida?

The State Attorney does. In State v. Bloom, 497 So. 2d 2 (Fla. 1986), the Florida Supreme Court held that “the decision to charge and prosecute is an executive responsibility, and the state attorney has complete discretion in deciding whether and how to prosecute.” A judge cannot order a prosecutor to file or to drop a charge.

That means the alleged victim cannot drop charges either. The person who called the police can ask the prosecutor not to proceed, and that request often matters, but the decision belongs to the State. Our guide for alleged victims, Can a Victim Drop Domestic Violence Charges in Florida?, explains how that works in the most common setting. Our attorneys at The Brancato Law Firm aim our early work at the prosecutor who makes the filing decision.

What is the difference between dropped, nolle prossed, and dismissed?

The words describe who ended the case and when.

Florida’s court statistics use the term “No File” for a case where “All charges in a criminal matter are dropped because the prosecutor did not obtain an indictment, file an information, or pursue the initial complaint.” Our attorneys explain to every client which of these outcomes is realistic, because they affect sealing and expungement differently.

Can charges be dropped before they are filed?

Yes, and that is often the best time. After an arrest, the State Attorney reviews the case before filing a formal charge. Under Florida Rule of Criminal Procedure 3.134, the State must file within 30 days for a person in custody, or the person is released on the 33rd day (the 40th with good cause). For a person out on release, the deadline is 60 days, with release from bond conditions available after 63 days. Under Rule 3.133, a person charged with a felony who has not been formally charged within 21 days can request an adversary preliminary hearing.

During that window, our attorneys present the prosecutor with what the arrest report left out: video, witness statements, texts, injuries to our client, and sworn affidavits. That work is called pre-file advocacy. Recent results include an aggravated assault case where we were hired the day of the arrest and the alleged victim’s affidavit led the State to decline charges within 24 days (February 2026), and a husband-and-wife felony drug possession case where charges were never filed after we addressed constructive possession in shared luggage (March 2026). Past results do not guarantee future outcomes.

How does a motion to dismiss work in Florida?

A motion to dismiss asks a judge to end the case before trial. Under Florida Rule of Criminal Procedure 3.190, all defenses other than not guilty must be raised by a motion to dismiss, “including immunity under section 776.032.” The best-known version is the sworn motion based on undisputed facts.

That motion moved and changed in 2025 and 2026. In In re Amendments to Florida Rule of Criminal Procedure 3.190, 421 So. 3d 424 (Fla. 2025), effective July 13, 2026, the Florida Supreme Court moved the old Rule 3.190(c)(4) motion to subdivision (d)(2) and added a deadline: “The court must dismiss any motion not filed before the deadline set by the court, unless the defendant demonstrates good cause, for the delay, or the motion is based on fundamental grounds.” On October 1, 2026, the Court restored the requirement that the motion be sworn.

Under Rule 3.190(d)(2), the defendant may move to dismiss “on the basis that there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt.” The State can answer with a traverse, a sworn denial of the facts, or a demurrer, which accepts the facts and argues they still prove a crime. In State v. Kalogeropolous, 758 So. 2d 110 (Fla. 2000), the Florida Supreme Court held that a general traverse is not enough; the State must “specifically dispute a material fact alleged by the defendant or add additional material facts that meet the minimal requirement of a prima facie case.” The Court added that “If a material fact is disputed, denial of the motion to dismiss is mandatory.”

Two recent cases show the limits. In State v. Yanes-Blanco, 401 So. 3d 592 (Fla. 5th DCA 2025), the Fifth District reversed a dismissal, holding that “the trial court does not determine factual issues or weigh evidence” on this motion. In State v. Adams, No. 3D23-2305 (Fla. 3d DCA June 25, 2025), the Third District reversed a dismissal granted on an unsworn oral motion. The lesson is that the motion must be written, sworn, specific, and filed on time.

What other grounds can get a case dismissed?

Several. A judge can dismiss based on Stand Your Ground immunity under section 776.032, Florida Statutes, which puts the burden on the State to overcome a prima facie claim by clear and convincing evidence; our post on how a Stand Your Ground immunity hearing works explains the process. A case can also end for a speedy trial violation, covered in our guide to the right to a speedy trial in Florida, for an expired statute of limitations, for double jeopardy, or for a defective charging document.

A successful motion to suppress does not dismiss a case by itself, but when it removes the key evidence, the State often drops the charge because it can no longer prove it. Our attorneys at The Brancato Law Firm often file suppression and dismissal motions together.

Can diversion get charges dismissed in Hillsborough County?

Yes. Florida’s pretrial intervention statute, section 948.08, Florida Statutes, makes “Any first offender, or any person previously convicted of not more than one nonviolent misdemeanor, who is charged with any misdemeanor or felony of the third degree” eligible, with the consent of the victim, the State Attorney, and the judge. The defendant waives speedy trial, the charges are continued for 90 days with up to 90 more, and at the end the program may recommend “dismissal of charges without prejudice.” The State Attorney makes the final decision.

The Hillsborough State Attorney’s Office lists its programs on its programs page:

In October 2026, a client of ours completed diversion on multiple drug possession counts, the charges were dismissed, and the client is now eligible for expungement. Past results do not guarantee future outcomes.

How often are criminal charges dropped or dismissed in Florida?

More often than most people expect. The Florida courts’ FY 2024-25 Statistical Reference Guide shows that 18,616 of 155,206 felony dispositions statewide were dismissals before trial, or 12.0%. Another 76.4% ended in pleas, and 1.3% went to a jury.

Misdemeanors are dropped even more often. The county criminal chapter of the same guide counts 41,433 “No File” dispositions (17.7%) and 41,060 dismissals (17.6%) among 233,667 misdemeanor dispositions statewide in FY 2024-25, together about 35%. The figures exclude criminal traffic and DUI cases.

Hillsborough County has been studied directly. Researchers from Florida International University and Loyola University Chicago reviewed Hillsborough State Attorney’s Office cases from 2017 and 2018 in Race, Ethnicity and Prosecution in Hillsborough County, Florida (2019) and found that about 23% of cases ended in prosecutorial dismissal: 28% of misdemeanors and 8% of felonies. National research suggests dropping low-level cases can help public safety too. A study in the Quarterly Journal of Economics by Agan, Doleac, and Harvey, Misdemeanor Prosecution (2023), found that not prosecuting a marginal nonviolent misdemeanor defendant cut the likelihood of a new criminal complaint within two years by 53%.

What actually gets charges dropped?

Evidence that changes the prosecutor’s view of the case. In our experience, that usually means video, a witness the police never interviewed, proof that the client was the one attacked, a suppression issue, or a sworn statement from the alleged victim. Recent results from our firm:

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

What should you do to give your case the best chance of dismissal?

Act during the filing window. Do not talk to police or the alleged victim about the case, save texts, photos, and video, and write down the names of witnesses while you remember them. Tell your lawyer everything, because a sworn motion to dismiss commits the defense to a set of facts, and those facts must be accurate. Our Hillsborough County criminal defense attorney team starts with the filing decision, then moves to motions if the case is filed.

Frequently asked questions about dropped and dismissed charges in Florida

Can the alleged victim drop charges in Florida?

No. Only the State Attorney can drop charges, although the alleged victim’s wishes and a truthful sworn statement often influence the decision. The Brancato Law Firm presents that information to the assigned prosecutor during the filing window.

How long does the State have to file charges in Florida?

For a person held in jail, 30 days, with release required on the 33rd day or the 40th day for good cause under Rule 3.134. For a person out on release, 60 days before bond conditions can be lifted, and our attorneys at The Brancato Law Firm use that time for representation before charges are filed.

What is a 3.190(c)(4) motion to dismiss in Florida?

It is the sworn motion to dismiss based on undisputed facts, which became Rule 3.190(d)(2) on July 13, 2026. It must now be filed by the deadline the judge sets, and The Brancato Law Firm calendars that deadline at arraignment.

Does a dismissed charge stay on my record in Florida?

The arrest record remains until it is sealed or expunged, even after a dismissal. A dismissal often makes the record eligible to be cleared, and our attorneys at The Brancato Law Firm explain the next step when a case ends.

Can a dropped charge be refiled in Florida?

Often, yes. A no information or a nolle prosequi usually allows the State to refile within the statute of limitations, while an acquittal ends the matter for good. The Brancato Law Firm explains which outcome is realistic before a client accepts any resolution, and our Hillsborough County criminal defense page covers the local programs.

Does completing diversion get my case dismissed?

Yes, when the program is completed. Under section 948.08, the program can recommend dismissal without prejudice, and the State Attorney makes the final decision. Our attorneys at The Brancato Law Firm negotiate entry into these programs and track compliance so the dismissal happens on schedule.

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

Call our Tampa criminal defense attorneys while the case is still open

The best time to get a case dropped is before it is filed, and the next best is before the motion deadline the judge sets. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will contact the prosecutor, gather the evidence, and file the right motion on time. Call (813) 727-7159 for a free, confidential consultation. You can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read about our Spanish and Haitian Creole criminal defense services.

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

The Brancato Law Firm, P.A.

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

(813) 727-7159

Serving Hillsborough, Pinellas, and Pasco Counties

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

Speedy trial is the rule most defendants have heard of and the one least often won by counting days. In Florida’s courts, discharges under the rule are rare, and the 2025 rewrite narrowed the remedy. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I have spent more than 25 years in Hillsborough County courtrooms, including more than 150 jury trials to verdict, and our attorneys use speedy trial today as a negotiating tool and as a constitutional claim.

This guide explains the rule as it reads after July 1, 2025, how the notice and recapture process works, how continuances waive the rule, and when the constitutional right can still win a dismissal.

What is the right to a speedy trial in Florida?

It is a right protected by the Sixth Amendment, by Article I, Section 16 of the Florida Constitution, and by statute. Section 918.015, Florida Statutes provides that “In all criminal prosecutions the state and the defendant shall each have the right to a speedy trial,” and directs the Florida Supreme Court to set the procedure by rule. That rule is Florida Rule of Criminal Procedure 3.191.

The rule and the constitutional right are different tools. The rule sets fixed time periods and a fixed remedy. The constitutional right has no fixed deadline but can lead to dismissal with prejudice. Our attorneys at The Brancato Law Firm evaluate both in every case that has been pending a long time.

How long does the State have to bring you to trial in Florida?

Under Rule 3.191(a), “every person charged with a crime shall be brought to trial within 90 days if the crime charged is a misdemeanor, or within 175 days if the crime charged is a felony.” The periods apply whether you are in jail or out on bond.

“Formally charged” means charged “by information, or by indictment, or in the case of alleged misdemeanors by whatever documents constitute a formal charge.” An arrest or a notice to appear does not start the clock anymore.

What changed in Florida’s speedy trial rule on July 1, 2025?

The Florida Supreme Court rewrote the rule on its own motion in In re Amendments to Florida Rule of Criminal Procedure 3.191, 411 So. 3d 385 (Fla. 2025), effective July 1, 2025. Four changes matter most.

Justice Labarga dissented. He warned that the formal-charge trigger risks leaving people under long investigations in “procedural limbo,” that 10 days of recapture was “sufficient,” and that discharge with prejudice was “an appropriate check on the State.” For cases that were already pending on July 1, 2025, Florida’s appellate courts so far have applied the earlier version of the rule, as in State v. Hipolito, No. 6D2025-0212 (Fla. 6th DCA Apr. 10, 2026), which also held that a trial court cannot discharge a defendant without first holding the inquiry the rule requires.

How does the notice of expiration work?

The remedy under the rule is no longer automatic. Under Rule 3.191(o), the defense must take these steps:

1. Wait for the period to expire. The 90 or 175 days must run without the case being tried, and without the delay being charged to the defense.
2. File a Notice of Expiration of Speedy Trial Time. The rule gives no remedy until this notice is filed.
3. Attend the hearing. The court must hold a hearing “no later than 5 days” after the notice and, if the defendant is not the cause of the delay, order trial within 30 days.
4. Move for discharge if the State misses the 30 days. A defendant “not brought to trial within the 30-day period through no fault of the defendant, on motion of the defendant, shall be discharged from the crime.”

The rule then adds the key limit: “This discharge shall be without prejudice unless there is a determination that the defendant’s constitutional right to speedy trial has been violated.” Without a constitutional violation, the State can refile.

How do continuances affect your speedy trial rights?

A defense request for a continuance usually waives the rule’s time periods. In State v. Naveira, 873 So. 2d 300 (Fla. 2004), the Florida Supreme Court held that a defendant who asked for a continuance during the recapture window was unavailable for trial and could not be discharged. The Court quoted the general rule that “a defense request for continuance, absent state misconduct, inexcusable delay in providing discovery, or other violation of defense discovery rights, waives the 175 day ‘speedy trial’ time.”

Florida’s Third District has applied that rule so often that it began one opinion, State v. Guzman, 697 So. 2d 1263 (Fla. 3d DCA 1997), with “For at least the sixteenth time.” The practical point is that the decision to ask for more time is also a decision about speedy trial. Our attorneys at The Brancato Law Firm make that choice deliberately, because sometimes the investigation needs the time and sometimes the client needs the State to be ready.

What is the constitutional right to a speedy trial?

The constitutional right has no fixed deadline. Courts weigh four factors from Barker v. Wingo, 407 U.S. 514 (1972): “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” The length of the delay is “to some extent a triggering mechanism,” and no single factor is “either a necessary or sufficient condition.”

Barker identified three interests behind the prejudice factor: preventing “oppressive pretrial incarceration,” minimizing “anxiety and concern of the accused,” and limiting “the possibility that the defense will be impaired,” which the Court called “the most serious.” A recent Florida case shows how hard these claims are to win without a strong record. In State v. Stouffer, No. 4D2024-0546 (Fla. 4th DCA Feb. 18, 2026), a racketeering case filed in 2012 was dismissed on constitutional speedy trial grounds. The Fourth District reversed. It held the long delay was presumptively prejudicial, but “the state was not the primary cause of the delay, the defendants did not assert their right to speedy trial, and finally the defendants did not meet their burden of showing actual prejudice.”

The lesson from Stouffer is to assert the right on the record early and document every way the delay has hurt the defense: lost witnesses, faded memories, destroyed evidence, and time in custody. When a constitutional violation is proven, the rule now allows discharge with prejudice.

How long does the State have to file charges before trial deadlines even start?

Separate deadlines govern the charging decision. Under Florida Rule of Criminal Procedure 3.134, the State must file formal charges within 30 days for a person held in custody; if it does not, the court orders release on the 33rd day, or the 40th day if the State shows good cause. For a person out on pretrial release, the deadline is 60 days, with release from bond conditions available after 63 days and up to 30 more days for good cause. The remedy under Rule 3.134 is release, not dismissal.

Under Rule 3.133, a person charged with a felony who has not been formally charged within 21 days of arrest can request an adversary preliminary hearing. Because the speedy trial clock now waits for the formal charge, these earlier deadlines matter more than they used to. Our post on how domestic violence charges are filed in Hillsborough County shows how the 30-day window works in practice.

How long do criminal cases take in Hillsborough County?

Longer than the rule’s periods suggest. The Florida courts’ FY 2024-25 Statistical Reference Guide shows the 13th Judicial Circuit received 12,317 felony filings and disposed of 10,862 felony cases that year, a clearance rate of 88.2%, down from 100.5% the year before. A rate below 100% means the pending caseload grew.

Speedy trial discharges are rare. Of 155,206 felony dispositions statewide in FY 2024-25, the same report counts 8 as speedy trial dispositions. Jury trials are uncommon too: the 13th Circuit held 108 felony jury trials that year, about 1.0% of its dispositions. Florida’s court rules set a presumptively reasonable time standard of 180 days from arrest to final disposition for a felony and 90 days for a misdemeanor in Rule 2.250 of the Florida Rules of General Practice and Judicial Administration.

Scholars saw the recapture debate coming. In Florida’s New Speedy Trial Rule: The “Window of Recapture”, 13 Fla. St. U. L. Rev. 9 (1985), Professor John Yetter explained the 1984 creation of the recapture window and argued it must stay short to keep the State’s incentive to meet deadlines. The 2025 rule tripled it.

When should you demand a speedy trial?

Only when you are ready for trial. A Demand for Speedy Trial tells the court the defense is prepared, and once filed, the trial must be set within 60 days. If the State is not ready, the demand can force a dismissal, a better offer, or a trial on a thin case. If the defense is not ready, the demand can backfire.

Holding the State to its deadlines still changes outcomes. In a September 2025 case, a gang beating and kidnapping prosecution ended in a misdemeanor battery plea and probation after our firm declined to waive speedy trial. In February 2025, our attorneys had a felony warrant that had been pending for more than four years quashed and the case dismissed. Past results do not guarantee future outcomes. More results are on our case results page.

What should you do if your case is dragging on?

Take three steps:

1. Find the formal charge date. The information or indictment date now starts the rule’s clock.
2. Check every continuance. Know which ones the defense requested, because those usually waive the rule.
3. Assert the constitutional right in writing. A written assertion is the record a court looks for under Barker.

Our Hillsborough County criminal defense attorney team reviews the docket, the continuance history, and the prejudice to the defense before deciding whether to file a demand, a notice of expiration, or a constitutional motion to dismiss. Our guide on whether criminal charges can be dropped or dismissed in Florida covers the other ways a case can end before trial.

Frequently asked questions about speedy trial in Florida

Can speedy trial get my charges dropped in Florida?

Sometimes. Under the current rule, a missed deadline usually leads to a dismissal without prejudice that the State can refile, while a proven constitutional violation can end the case for good. The Brancato Law Firm evaluates both before deciding which motion to file.

Does the speedy trial clock start at arrest in Florida?

Not anymore. Since July 1, 2025, the 90-day and 175-day periods start when you are formally charged by information, indictment, or a misdemeanor charging document. Our attorneys at The Brancato Law Firm track that date and the separate Rule 3.134 filing deadlines from the first week.

What happens if I waive speedy trial?

You give up the rule’s time periods, usually in exchange for time to investigate or for a diversion program that requires a waiver. The Brancato Law Firm weighs that trade case by case, and you can learn about diversion options on our Hillsborough County criminal defense page.

How long is too long for a criminal case in Florida?

There is no fixed number under the Constitution. Courts first ask whether the delay is long enough to be presumptively prejudicial for that kind of case, and then the reason for the delay, your assertion of the right, and the harm to your defense decide the claim. Our attorneys at The Brancato Law Firm document that harm as the case goes, not at the end.

What is the recapture period in Florida?

It is the mandatory 30 days the State gets to bring a case to trial after the court holds the hearing on a Notice of Expiration of Speedy Trial Time. The Brancato Law Firm files the notice and holds the State to the 30 days, as explained in the Florida Bar’s summary of the 2025 amendments.

Does speedy trial apply if I am out on bond?

Yes. Rule 3.191 applies whether you are in custody or on pretrial release, and the constitutional right protects everyone who has been charged. Our attorneys at The Brancato Law Firm use it for clients on bond whose cases have stalled.

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

Talk to our Tampa criminal defense attorneys about a delayed case

If your case has been pending for months, the next decision about speedy trial may be the most important one in it. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will review your docket, the continuance record, and the harm the delay has caused, then tell you whether to demand trial, file a notice, or move to dismiss. Call (813) 727-7159 for a free, confidential consultation. You can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read about our Spanish and Haitian Creole criminal defense services.

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

The Brancato Law Firm, P.A.

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

(813) 727-7159

Serving Hillsborough, Pinellas, and Pasco Counties

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

A Florida judge can end a homicide or aggravated assault case before a jury is ever picked, and it happens at a Stand Your Ground hearing. I have handled self-defense cases at every stage, including a second-degree murder trial where the jury acquitted our client on self-defense. 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 file and argue immunity motions in Hillsborough, Pinellas, and Pasco Counties.

This post explains how the hearing works, step by step. For the substance of the self-defense statutes, read our companion guides on Stand Your Ground vs. self-defense in Florida and how to claim self-defense in a Florida criminal case.

What is Stand Your Ground immunity?

Stand Your Ground immunity is protection from prosecution, not just a defense at trial. Under section 776.032(1), Florida Statutes, a person who uses or threatens force as permitted by Florida’s justification statutes “is justified in such conduct and is immune from criminal prosecution and civil action.” The statute defines “criminal prosecution” to include “arresting, detaining in custody, and charging or prosecuting the defendant.”

The force itself must be justified under section 776.012, Florida Statutes. Deadly force is justified when a person “reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm” or the imminent commission of a forcible felony. A person who is not engaged in criminal activity and is in a place where he or she has a right to be “does not have a duty to retreat and has the right to stand his or her ground.” Inside a home or occupied vehicle, section 776.013, Florida Statutes adds a presumption of reasonable fear against an unlawful, forcible intruder.

Who has the burden of proof at a Stand Your Ground hearing?

The State has the burden. Since the Legislature amended the statute in 2017, section 776.032(4) provides that “once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity.”

In Love, the Florida Supreme Court held that the amendment “is a procedural change in the law” and applies to all immunity hearings conducted on or after its effective date, because “the relevant event is the immunity hearing.” Clear and convincing evidence is a higher standard than the preponderance standard used in most civil cases, though lower than proof beyond a reasonable doubt.

How does the immunity hearing work, step by step?

The hearing follows a predictable sequence. In our cases, the work before the hearing decides more than the hearing itself.

1. Independent investigation. Our attorneys gather scene video, 911 audio, phone records, the other person’s history of threats or violence, medical records, and witness statements before the State has locked in its version.
2. The sworn motion to dismiss. The defense files a motion under Florida Rule of Criminal Procedure 3.190(b), which the Florida Supreme Court identified as “the appropriate procedural vehicle” in Dennis v. State, 51 So. 3d 456 (Fla. 2010). Under Dennis, a State traverse does not defeat the motion, and the court must resolve disputed facts at an evidentiary hearing.
3. The prima facie claim. In the Second District, which hears appeals from Hillsborough, Pinellas, and Pasco Counties, Jefferson v. State, 264 So. 3d 1019 (Fla. 2d DCA 2018) held that an accused “must simply allege a facially sufficient prima facie claim of justifiable use of force” in the motion and argue it at the hearing. The defendant carries no evidentiary burden.
4. The evidentiary hearing. The State presents witnesses and evidence to try to overcome the immunity by clear and convincing evidence. The defense cross-examines and may present its own witnesses and experts.
5. The decision whether the client testifies. The client is not required to testify. Testimony can help the judge understand the client’s fear, but it also creates a sworn record the State will study before trial, so this is a strategic decision made case by case.
6. The ruling. If the State fails to meet its burden, the court must grant immunity and dismiss the charge. If the court denies immunity, the case proceeds toward trial, and self-defense can still be argued to the jury.

In Moore v. State, 426 So. 3d 906 (Fla. 6th DCA 2025), a Polk County second-degree murder case, the trial court held the defendant’s lack of evidence against him. The Sixth District granted relief and wrote that “Moore was not required to submit any evidence,” and that because the State failed to meet its burden, “Moore’s prima facie claim of self-defense stands, and he is immune from further prosecution.”

What happened in Spencer v. State?

In Spencer v. State, 419 So. 3d 654 (Fla. 4th DCA 2025), Ivin Spencer was charged with second-degree murder in Palm Beach County for shooting Brandon Bell. Spencer did not dispute that he fired. Bell had threatened him about two months earlier and often carried a gun. On the day of the shooting, Bell yelled repeatedly that he would “whoop his ass,” got out of his car, and started walking quickly toward Spencer “in an aggressive manner,” with his hands at his front pocket. Spencer, who had several medical conditions and physical limitations, fired one shot when Bell was about six feet away, and he called 911 less than a minute later.

The trial court found Spencer credible but denied immunity because Spencer had turned around soon after Bell got out of his car. The Fourth District granted Spencer’s petition for a writ of prohibition. The court held that “the state failed to meet its burden of proving by clear and convincing evidence that the defendant’s use of deadly force was not justified,” and directed the trial court “to discharge the defendant from prosecution.” Spencer had no duty to retreat, warn, or otherwise defuse the threat.

The evergreen lesson is that the facts surrounding the moment of force decide these hearings: prior threats, the other person’s reputation for carrying a weapon, physical disparity, the distance between the parties, and what the defendant did immediately afterward. Our attorneys build the hearing around exactly those facts.

What happens if the judge denies Stand Your Ground immunity?

If the judge denies immunity, the defense can file a petition for a writ of prohibition in the district court of appeal, and it must do so before trial. In Boston v. State, 326 So. 3d 673 (Fla. 2021), the Florida Supreme Court held that a defendant who believes the immunity ruling was wrong “may still seek relief by filing a petition for a writ of prohibition before invoking his or her right to a trial.” If the case goes to trial and a jury convicts beyond a reasonable doubt, that verdict makes any error at the immunity hearing harmless.

The Florida Supreme Court reaffirmed that prohibition remains the remedy in In re Amendments to Florida Rules of Appellate Procedure, 405 So. 3d 332 (Fla. 2025), when it created an appeal right for civil defendants but declined to create one for criminal defendants. In the Second District, Jefferson explains the two routes: prohibition when the trial court ruled on the merits, and certiorari when the trial court denied the motion summarily without making the State present evidence.

A denial does not end the self-defense issue. The same facts can be presented to the jury at trial, where the State must disprove self-defense beyond a reasonable doubt. Losing the hearing is not losing the defense.

How often do Stand Your Ground cases come up?

Self-defense claims are a regular part of homicide and assault litigation in Florida. Researchers who studied the law’s effects found that Florida’s homicide rate rose after the 2005 law took effect. In Evaluating the Impact of Florida’s “Stand Your Ground” Self-defense Law on Homicide and Suicide by Firearm, JAMA Internal Medicine (2017), Humphreys, Gasparrini, and Wiebe reported a 24.4% increase in homicides and found no change in suicides, which they used as a control.

The FBI’s Justifiable Homicide, 2015 to 2024 report counted 2,776 justifiable homicides by private citizens nationally over that decade, 63% of them in the South. Florida does not publish a current county breakdown of justifiable homicides. When self-defense is in play, the immunity hearing is often the most important hearing in the case.

How do our attorneys win immunity hearings?

Our attorneys win immunity hearings by preparing them like trials. You can learn more on our Tampa violent crime lawyer page and our Tampa homicide attorney page.

• We investigate the other person. Prior threats, prior violence, and a reputation for carrying a weapon are often decisive, as Spencer shows.
• We reconstruct the distances and timing. Video, measurements, and sometimes a reconstruction expert show how much time the client had to decide.
• We document the client’s limitations. Age, size, injuries, and medical conditions matter to whether fear was reasonable.
• We present the client’s conduct afterward. Calling 911, staying at the scene, and cooperating all support self-defense.
• We use mental health evidence when it applies. Our post on PTSD and self-defense in Florida explains how.

The results show the value of that preparation. Our firm won a not guilty verdict in a second-degree murder trial on self-defense. In October 2026, a veteran facing five years in prison on aggravated assault with a deadly weapon was accepted into Pretrial Intervention after our Stand Your Ground motion and the firm’s mitigation report. See our case results page. Past results do not guarantee future outcomes.

Frequently asked questions about Stand Your Ground hearings

Can Stand Your Ground apply to aggravated assault, not just homicide?

Yes. Section 776.012 covers both using and threatening to use force, so immunity can apply to aggravated assault, aggravated battery, and homicide charges. The Brancato Law Firm has used a Stand Your Ground motion to resolve an aggravated assault with a deadly weapon case through Pretrial Intervention.

Do I have to testify at a Stand Your Ground hearing?

No. The defendant does not have to testify, and under Jefferson v. State, 264 So. 3d 1019 (Fla. 2d DCA 2018), the defendant carries no evidentiary burden once the motion makes a facially sufficient claim. Our attorneys at The Brancato Law Firm decide with each client whether testimony helps more than it risks.

Does Stand Your Ground apply in my own home in a domestic dispute?

Partly. The no-duty-to-retreat rule applies in the home, but the presumption of reasonable fear in section 776.013 generally does not apply against another lawful resident unless an injunction or no-contact order was in place. The Brancato Law Firm handles self-defense claims in domestic violence cases with that limit in mind.

What is a prima facie claim of self-defense?

It is a sworn motion that, if the facts in it are true, would show the force was justified under Florida law. Our attorneys at The Brancato Law Firm draft these motions carefully, because in the Second District a facially sufficient motion is what triggers the State’s clear and convincing burden.

Can a Stand Your Ground denial be appealed?

It can be challenged before trial by a petition for a writ of prohibition, under Boston v. State, 326 So. 3d 673 (Fla. 2021), but there is no ordinary appeal for criminal defendants. The Brancato Law Firm prepares the record at the hearing with that petition in mind, so the appellate court has what it needs.

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

Under section 776.032(2), police may not arrest a person for using or threatening force unless they determine there is probable cause that the force was unlawful. When a client calls before an arrest, The Brancato Law Firm can present the self-defense evidence to investigators and prosecutors through pre-file advocacy.

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

Talk to our attorneys about a self-defense case

The evidence that wins an immunity hearing, including video, 911 calls, and the other person’s history, is easiest to find in the first days after an incident. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will begin that investigation immediately and prepare the immunity motion. Call (813) 727-7159. You can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read about our Spanish and Haitian Creole criminal defense services.

For more about our defense strategies, visit our Tampa Violent Crimes Defense page.

The Brancato Law Firm, P.A.

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

(813) 727-7159

Serving Hillsborough, Pinellas, and Pasco Counties

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

Each case is unique, and past results do not guarantee future outcomes. This article is general information, not legal advice.