Although uncommon, the state attorney's office on occasion will re-file charges in criminal court on cases that have been previously "no actioned" or "nolle prossed". A no action occurs after an arrest has been made, but the prosecutor decides that there is not enough evidence to proceed with the case and the case is never filed. A no action is every Miami criminal lawyer hope for their clients as the charges are dropped quickly and expeditiously. After a case has been no actioned it is eligible for a sealing or expungement. The lack of evidence to support a case can result from victims and witnesses failing to appear at their pre-file conferences, or the police had probable cause to make an arrest, but after reviewing the evidence the screening prosecutor does not believe the case can be proven to a jury beyond a reasonable doubt. Another reason that a case can be no actioned is because the police conducted an illegal search and seizure, thus making the evidence recovered inadmissible in court.
A nolle pros occurs after charges have been filed, but the prosecutor for various reasons can not proceed in the case and dismisses the charge levied against a defendant. Most nolle prosses occur a result of victims and/or witnesses failing to appear or being unavailable for trial. Often times, prosecutors will nolle pros a case because the discovery process driven by the criminal lawyer leads the State to believe they cannot prove their case beyond a reasonable doubt to a jury. A nolle pros can occur at any stage of a criminal court case, even after a jury has been selected in the case. While a nolle pros is not as good as a no action, this result will also allow for a case to be sealed or expunged.
It is important to remember that even if a case results in a nolle pros or a no action, the prosecutors office handling the matter can and will re-file charges as long as certain things have not occurred. First off, the state cannot re-file charges if the statute of limitations has run or the speedy trial time has expired. Also, to re-file a case, the defendant must be properly served with notice to be in court. Re-files mostly occur in driving under the influence or DUI cases. Many times, police officers will fail to appear for trial, but the state will try to reserve the defendant in the hopes that the officers will appear for trial at a later date. On other occasions, victims or witnesses fail to appear for the pre-trial conferences, but will later appear to speak with prosecutors once they realize the chargers have been dropped. The decision to re-file charges is within the sole discretion of the prosecutor.
In a recent case, a mother and son were arrested on charges of resisting a police officer without violence. This type of charge is usually prosecuted in county court, unless the defendant was also charged with a felony offense. Prosecutors dropped the charges against Anna Ramirez and her son Hernando Yunis. The criminal defense lawyer representing the defendants convinced a prosecutor to nolle pros the charges. The police officer later complained which caused the State to re-file the charges. The State claimed that the case was nolle prossed in error, but it was probably re-filed at the request of the police officer. Unfortunately, prosecutors succumb to the pressure of a victim's demand rather that explaining to them that the case should not proceed to trial.
Charges Re-filed in Florida Stun-Gun Case, UPI.com, August 9, 2010.