Notice to Appear
Make no mistake about it, if you receive a notice to appear for a misdemeanor then you are charged with a criminal offense. Regardless of whether you were physically arrested or released at the scene, a criminal charge is a serious matter that comes with a lifetime of consequences even after the case is resolved in court.
Keep in mind that the “notice to appear” is the equivalent of an arrest. If you are convicted of the underlying offense, the conviction could result in a permanent criminal record. The conviction could cause problems with your employment or a license needed to practice your chosen profession.
Whether you are formally arrested and taken to jail or given a "notice to appear," your case will be scheduled before a county court judge. An assistant state attorney (often called a prosecutor) will be assigned to your case. The prosecutor has wide discretion to seek any legal sentence that he or she feels is appropriate at your court appearance,
A conviction for a misdemeanor can involve a fine, jail time or a lengthy period of probation. If you fail to appear in court, then the court will likely issue a warrant for your arrest.
We can go to court for you. In many cases, we can waive your appearance in court for non-essential court dates while we fight for an outright dismissal.
Attorney for the Notice to Appear in Tallahassee, FL
Florida Rule of Criminal Procedure Rule 3.125 sets out the requirements for a Notice to Appear issued in a misdemeanor case in Florida. Don't go to court alone and hope for the best. Instead, hire an experienced criminal defense attorney who can explain the criminal charge pending against you and the best way to resolve it.
If you receive a notice to appear, contact an experienced criminal defense attorney to discuss your case. The attorneys at Pumphrey Law are experienced in represents individuals on the notice to appear for a variety of misdemeanor crimes. We can help you avoid a conviction, fight for the best result and keep your record clean.
The criminal defense attorneys at Pumphrey Law represent clients throughout Tallahassee and Leon County. We also represent clients in all of the surrounding areas including Apalachicola in Franklin County, Quincy in Gadsden County, Liberty County, Monticello in Jefferson County, and Crawfordville in Wakulla County, FL.
Call (850) 681-7777 today.
The Definition of Florida’s Notice to Appear
Under Rule 3.125(a), the term “notice to appear” is defined as written order issued by a law enforcement officer in lieu of physical arrest requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time.
A notice to appear cannot be issued in a felony case but it can be issued in a misdemeanor case. A misdemeanor is any offense that is punishable under Florida laws by imprisonment in the local County jail.
Misdemeanor charges include, but are not limited to the following:
- disorderly intoxication;
- underaged possession of alcohol;
- simple battery;
- criminal mischief;
- resisting arrest without violence;
- possession of marijuana;
- passing worthless checks; and
- petit theft.
Rule 3.125 provides that a notice to appear can be issued by the arresting officer in lieu of a physical arrest for the following types of offenses:
- a first-degree misdemeanor;
- a second-degree misdemeanor;
- a violation of a municipal ordinance; or
- a violation of a county ordinance.
The officer is not allowed to issue a notice to appear if one of the following circumstances arises:
- the accused fails or refuses to sufficiently identify himself or herself or supply the required information;
- the accused refuses to sign the notice to appear;
- the officer has reason to believe that the continued liberty of the accused constitutes an unreasonable risk of bodily injury to the accused or others;
- the accused has no ties with the jurisdiction reasonably sufficient to assure the accused’s appearance or there is a substantial risk that the accused will refuse to respond to the notice;
- the officer has any suspicion that the accused may be wanted in any jurisdiction; or
- it appears that the accused previously has failed to respond to a notice or a summons or has violated the conditions of any pretrial release program.
Notice to Appear Issued by the Booking Officers
Even if the arresting officer doesn’t issue a notice to appear and presents the accused to the jail for booking, the booking officer can issue a notice to appear and release the accused at booking.
Under Rule 3.125(c), if the arresting officer does not issue notice to appear because of one of the exceptions listed in subdivision (b) and takes the accused to police headquarters, the booking officer may issue notice to appear if the officer determines that there is a likelihood that the accused will appear as directed, based on a reasonable investigation of the following circumstances of the accused:
- residence and length of residence in the community;
- family ties in the community;
- employment record;
- character and mental condition;
- past record of convictions; or
- past history of appearance at court proceedings.
How is the Notice to Appear Served?
Under Rule 3.125(d), if notice to appear is issued, it shall be prepared in quadruplicate and delivered as follows:
- 1 copy of the notice to appear to the arrested person and the person, to secure release, shall give a written promise to appear in court by signing the 3 remaining copies;
- 1 to be retained by the officer and 2 to be filed with the clerk of the court; and
- 1 copy of the notice to appear will be served by the clerk of court, schedule of witnesses, and evidence filed to the state attorney.
Two copies of the notice to appear shall be sworn to by the arresting officer before a notary public or a deputy clerk. If notice to appear is issued by the arresting officer under subdivision (b), the notice shall be issued immediately upon arrest. If notice to appear is issued by the booking officer under subdivision (c), the notice shall be issued immediately upon completion of the investigation. The arresting officer or other duly authorized official then shall release from custody the person arrested.
What Information is Contained on the Notice to Appear?
When a notice to appear is issued in Tallahassee or Leon County, the arresting officer must also file with the clerk a list of witnesses and their addresses and a list of tangible evidence in the cause. One copy shall be retained by the officer and 2 copies shall be filed with the clerk of the court. See Rule 3.125(e).
The notice to appear must contain the following information:
- name and address of the accused;
- date of offense;
- offense(s) charged–by statute and municipal ordinance if applicable;
- counts of each offense;
- time and place that the accused is to appear in court;
- name and address of the trial court having jurisdiction to try the offense(s) charged;
- name of the arresting officer;
- name(s) of any other person(s) charged at the same time; and
- signature of the accused.
Failure to Appear on a Notice to Appear
Rule 3.125(h) addresses the remedy for the court when a person signs a written notice to appear but then fails to respond to the notice to appear. After the failure to appear, the court is permitted to issue a warrant of arrest under Rule 3.121.
Under Florida Statute 901.31, the failure to obey a written promise to appear has serious consequences. The statute provides:
Any person who willfully fails to appear before any court or judicial officer as required by a written notice to appear shall be fined not more than the fine of the principal charge or imprisoned up to the maximum sentence of imprisonment of the principal charge, or both, regardless of the disposition of the charge upon which the person was originally arrested. Nothing in this section shall interfere with or prevent the court from exercising its power to punish for contempt.
Rule 3.121. Arrest Warrant
Rule 3.121 explains the procedures related to the issuance of an arrest warrant. The rule provides:
Rule 3.121. Arrest Warrant
(a) Issuance. –An arrest warrant, when issued, shall:
(1) be in writing and in the name of the State of Florida;
(2) set forth substantially the nature of the offense;
(3) command that the person against whom the complaint was made be arrested and brought before a judge;
(4) specify the name of the person to be arrested or, if the name is unknown to the judge, designate the person by any name or description by which the person can be identified with reasonable certainty;
(5) state the date when issued and the county where issued;
(6) be signed by the judge with the title of the office; and
(7) in all offenses bailable as of right be endorsed with the amount of bail and the return date.
(b) Amendment. –No arrest warrant shall be dismissed nor shall any person in custody be discharged because of any defect as to form in the warrant; but the warrant may be amended by the judge to remedy such defect.
What Happens in Court after a Notice to Appear?
When the accused appears before the court under the requirements of the notice to appear, the court is required to tell the person accused the criminal charge pending against them. The accused at such appearance may elect to waive the right to counsel and trial and enter a plea of guilty or nolo contendere by executing the waiver form contained on the notice to appear, and the court may enter judgment and sentence in the cause.
In the event the defendant enters a plea of not guilty, the court may set the cause for jury or nonjury trial on the notice to appear under the provisions of rules 3.140 and 3.160. When the court sets a trial date by the court, the clerk shall, without further praecipe, issue witness subpoenas to the law enforcement officer who executed the notice to appear and to the witnesses whose names and addresses appear on the list filed by the officer, requiring their attendance at trial.
What Does a Sample Notice to Appear in Court Look Like?
Florida law requires the notice to appear and schedule of witnesses and evidence to contain the following information:
IN THE COUNTY COURT,
IN AND FOR LEON COUNTY, FLORIDA
NOTICE TO APPEAR
Agency Case #
STATE OF FLORIDA, COUNTY OF LEON
In the name of Leon County, Florida: The undersigned certifies that he or she has just and reasonable grounds to believe, and does believe, that:
On (date) , at ( )a.m. ( )p.m.
Last Name First
Street — City and State Date and Place
Phone Race/Sex Height Weight Hair Eyes Scars arks
Occupation Place of Employment Employment Phone
Complexion Driver’s License # Yr./St. Social Security #
in Leon County, Florida, committed the following offense(s):
in violation of section(s): :
( ) State Statute
( ) Municipal Ord.
Name of Officer ID
[ ] Mandatory appearance in court, on (date) ,
at (date) ( )a.m. ( )p.m.
[ ] You need not appear in court, but must comply with instructions on back.
Name DOB Address
[ ] Cited
[ ] Jailed
Name DOB Address
[ ] Cited
[ ] Jailed
If you are a person with a disability who needs any accommodation in order to
participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact [identify applicable court personnel by name, address, and telephone number] at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711.
I AGREE TO APPEAR AT THE TIME AND PLACE DESIGNATED ABOVE TO ANSWER THE
OFFENSE CHARGED OR TO PAY THE FINE SUBSCRIBED. I UNDERSTAND THAT SHOULD I WILLFULLY FAIL TO APPEAR BEFORE THE COURT AS REQUIRED BY THIS NOTICE TO
APPEAR, I MAY BE HELD IN CONTEMPT OF COURT AND A WARRANT FOR MY ARREST SHALL BE ISSUED.
Signature of Defendant
I swear the above and reverse and attached statements are true and correct
to the best of my knowledge and belief.
Agency or Department
Sworn to and subscribed before me on (date) .
Notary Public, State of Florida
901.31 Failure to obey written promise to appear- Visit the website of the Florida legislature to learn more about the "notice to appear" issued in a misdemeanor case and the consequences of a failure to appear. Find the statutory language in Title XLVII for CRIMINAL PROCEDURE AND CORRECTIONS contained in Chapter 901 for an arrest in Florida.
This article was last updated on Wednesday, October 19, 2016.
Attorney Don Pumphrey Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney.