Can criminal charges be dropped before trial in Florida?

"Can this be dropped?" is one of the first questions after an arrest. The honest answer depends on the evidence, the charge and the person's record, but the routes themselves are set by Florida's statutes and court rules. This page lays them out, with what each one really means. For the charges Mr. Mead defends, see the criminal defense practice areas.

How does a case get dropped, step by step?

1. Arrest and first appearance. The officer's arrest starts the case; the judge decides release within 24 hours for anyone still held, as explained in the first 48 hours after an arrest.
2. Filing review. Prosecutors review the arrest report and evidence and decide whether to file, what to file, or to decline.
3. Early defense input. Before or after filing, the defense can present information that bears on that decision, or ask about diversion.
4. Arraignment and discovery. Once charged, the defense obtains the State's evidence and looks for legal problems with the case.
5. Motions. A motion to dismiss or to suppress is filed where the law supports it, within the court's deadlines.
6. Resolution. The State may nolle prosequi, the court may dismiss, the person may complete diversion, or the case goes on to a plea or trial.

What are the ways a case can end before trial?

What does the prosecutor weigh before filing charges?

The arrest is the police officer's decision; the formal charge is the prosecutor's. In Palm Beach County, the State Attorney's office says its Felony Intake Unit reviews arrests to decide "what, if any, charges are appropriate," and that its attorneys "consider factors such as the strength of the evidence; the credibility of the witnesses; the defendant's criminal history or lack of criminal history; and various diversion programs that may be available and appropriate." That is the stage where a defense lawyer can sometimes present information before a filing decision is made.

There are deadlines, but they do not end the case by themselves. If the State does not file formal charges within 30 days for a person in custody, the person is released on his or her own recognizance on day 33, or day 40 for good cause; for a person out on pretrial release, the deadline is 60 days (Rule 3.134). The rule releases the person. It does not say the case is over.

When can a judge dismiss a charge?

Under Rule 3.190(b), "All defenses available to a defendant by plea, other than not guilty, must be made by motion to dismiss," including defenses of form, substance, former jeopardy and immunity under section 776.032, Florida Statutes. A sworn motion can also argue that there are no material disputed facts and that the undisputed facts do not establish a prima facie case of guilt; the court must deny it if the State files a sworn traverse showing "the existence of a material disputed fact" (Rule 3.190(d)(2)). The court sets deadlines for these motions, and a late motion is dismissed unless the defendant shows good cause or it rests on fundamental grounds (Rule 3.190(c)). Self-defense immunity is raised the same way, by a motion to dismiss, as explained in how stand-your-ground immunity works.

A related tool is the motion to suppress evidence or statements obtained unlawfully (Rule 3.190(g)). Suppression does not dismiss a case by itself, but if the key evidence is excluded, the State may not be able to go forward. And a granted motion to dismiss is not always the end: the court may hold the defendant or keep bail in place for a specified time while the State files a new charging document (Rule 3.190(e)).

Can diversion lead to a dismissal?

Yes. Florida's pretrial intervention statute covers first offenders, and people with no more than one prior nonviolent misdemeanor, charged with a misdemeanor or a third-degree felony. Entry needs the approval of the program administrator and the consent of the victim, the State Attorney and the judge, and the defendant must waive speedy trial for the diversion period (s. 948.08(2)). At the end, the administrator may recommend "dismissal of charges without prejudice," but "the state attorney shall make the final determination as to whether the prosecution shall continue" (s. 948.08(5)). Local programs, including Broward's Misdemeanor Diversion Program and felony PTI and Palm Beach's Adult Drug Court, are covered on our page about pretrial diversion in Palm Beach and Broward.

Can the alleged victim drop the charges?

Not alone. A criminal case is brought by the State. The Broward State Attorney's office says "any request to drop the charges / request to waive prosecution will NOT be addressed during First Appearance Court," and that a person must contact its Victim Advocate Unit for waiver of prosecution instructions. A victim's views can still matter: statutory pretrial intervention requires the victim's consent, and the defendant and the defendant's family may not personally contact the victim to get it (s. 948.08(2)).

What about the speedy trial rule?

It can end a case, but less often than people expect. Under the current Rule 3.191, a discharge comes only after a notice of expiration, a hearing and a 30-day recapture period, and it is "without prejudice unless there is a determination that the defendant's constitutional right to speedy trial has been violated." The deadlines and exceptions are on our page about speedy trial deadlines in Florida.

What happens to the record after a dismissal?

Florida seals many of these records automatically. Under section 943.0595(2), the Florida Department of Law Enforcement automatically seals a criminal history record when no charging document was filed, or when the charges were dismissed or nolle prossed as to all counts, among other outcomes, unless the charging document was for a forcible felony or certain listed sex offenses. There is no limit on how many times this can happen, and the clerk then keeps the related court record confidential (s. 943.0595(2)(b), (3)(b)). Other records may qualify for a petition to seal or expunge, which our records sealing and expungement page covers. How to tell whether a dropped case was sealed is explained in whether your record is already sealed automatically.

What changes the answer?

• The strength of the evidence. The Palm Beach State Attorney names it first among the factors it weighs, along with witness credibility.
• Criminal history. A clean record matters for the filing decision and is a condition of statutory pretrial intervention (s. 948.08(2)).
• The kind of charge. Pretrial intervention covers misdemeanors and third-degree felonies; automatic sealing after a dismissal excludes forcible felonies and certain sex offenses (s. 943.0595(2)(a)). Degrees are explained in our chart of Florida criminal penalties.
• How the evidence was obtained. Evidence or statements obtained unlawfully can be challenged by a motion to suppress (Rule 3.190(g)).
• A domestic case. State Attorneys must adopt a pro-prosecution policy for domestic violence (s. 741.2901(2)), so a request from the alleged victim to drop the case does not end it. See our domestic violence defense page.
• DUI. Plea limits in section 316.656 and the Palm Beach first-time program change the options; see whether a DUI can be reduced to reckless driving.

A worked example

For example, picture a hypothetical first-time arrest in Broward County for possession of 20 grams or less of cannabis, a first-degree misdemeanor under section 893.13(6)(b), with no prior record. At the Broward Main Jail, the person is released after first appearance. The defense obtains the arrest report early and learns that the search began with a stop whose reason is unclear on the body camera video. Two paths are now open. The person may apply for the State Attorney's Misdemeanor Diversion Program, whose eligibility and approval the State Attorney says are determined at arraignment, and which is meant to divert the case from the criminal court system; or the defense may file a motion to suppress the evidence from the search. If the case ends by dismissal or nolle prosequi as to all counts, and the charge was not a forcible felony or a listed sex offense, FDLE seals the record automatically under section 943.0595. Which path fits depends on the facts and the person's goals. This is a hypothetical walk-through, not a prediction.

Common mistakes people make

• Assuming the alleged victim's wishes decide whether a case is dropped.
• Treating the Rule 3.134 release on day 33 or 40 as the end of the case.
• Filing nothing until the deadline for motions has passed.
• Contacting the alleged victim personally to get consent for diversion, which section 948.08(2) forbids.
• Assuming a dismissed case disappears; automatic sealing has exceptions, and some records need a petition.

What to do this week

1. Collect the arrest paperwork, bond papers and any court notice.
2. Write down what happened, for your lawyer only.
3. Do not contact the alleged victim or witnesses about the case.
4. Note the arraignment date; some programs are decided there. What happens at that hearing is explained in whether you have to go to your arraignment.
5. Speak with a lawyer about whether early input to the prosecutor makes sense in your case.

Frequently asked questions

What does nolle prosequi mean?

It is the State's formal decision to drop a charge it filed. A record of a case nolle prossed as to all counts is generally sealed automatically, unless the charging document was for a forcible felony or a listed sex offense (s. 943.0595(2)(a)2.).

Can a dropped charge be refiled?

Sometimes. A dismissal on a motion is not always final, since the court may hold the defendant or keep bail in place while the State files a new charging document (Rule 3.190(e)), and a speedy trial discharge is usually without prejudice.

How long does the State have to file charges?

Rule 3.134 sets 30 days for a person in custody and 60 days for a person released before release on recognizance becomes required. The rule controls custody; it does not by itself decide whether a charge can still be filed.

Does a dismissal mean I was found not guilty?

No. A dismissal ends the case without a finding either way. A not guilty verdict or a judgment of acquittal on all counts is a separate outcome that is also generally sealed automatically (s. 943.0595(2)(a)3., 4.).

Can a withhold of adjudication count as charges being dropped?

No. A withhold follows a plea or finding of guilt; it is explained on our page about withhold of adjudication in Florida.

Is there a fee to have a dismissed case sealed automatically?

The statute does not require the person to apply: the clerk sends the disposition to FDLE, which seals the record on receipt (s. 943.0595(3)(a)).

How can Mr. Mead help?

Mr. Mead has spent more than three decades in South Florida criminal courts. He reviews the arrest, the evidence and the deadlines from the start, and tells you honestly which of these routes, if any, is realistic in your case. No outcome can be promised, and past results do not guarantee a similar result. For a confidential conversation, call (561) 362-6677, 24 hours a day.

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