Can the Prosecutor Change the Charges Against You?

July 22, 2022 Don Pumphrey, Jr. Criminal Defense Social Share

Being charged with a crime is scary enough. But can the prosecutor change the type of charges that you are facing? This blog will explain how defendants are charged with crimes and under what circumstances the prosecutor can change the charges against the defendant.

How are Charges Filed?

There is a lot of misinformation about who actually has the power to file charges against an accused. The media has led many people to believe that when they have a dispute with someone, then they can “file charges” against that other person. However, victims of crime do not have that power. Ultimately, the power to charge the accused is left up to the prosecutors. There are many reasons why a prosecutor may choose to not file charges against the accused. Additionally, even if the accused is arrested by the police, the accused is not formally charged by the police; again the prosecutor holds that power. The prosecutor may decide to not file formal charges against you even if you are arrested.

There are two ways to charge a defendant in Florida; an indictment and an Information. An indictment is where the prosecutor has presented evidence to a grand jury where the jury found that there was enough evidence to formally charge the accused with the crime. The grand jury process is a secret proceeding and the defendant is not present during these proceedings. In Florida, the indictment process is only required for capital charges. For example, we have been following the case of Florida rapper YNW Melly. The Rapper was charged via an indictment with two counts of first-degree murder.

In all other cases, the prosecutor can file an Information. An Information is simply the charging document that outlines what charges the accused is facing. The Information must include the charges (or counts) the accused is facing with the essential facts constituting the charge. The prosecutor must also include the date and place of the offense. To file the Information, the prosecutor must sign the document under oath stating that they have a good faith basis to bring these charges.

Can the Prosecutor Change the Charges Against the Accused?

Yes, the prosecutor may file an Amended Information at any time prior to trial because of formal defects. The prosecutor can change the date of the offense, the named victim involved, the elements of the crime, or even add or change the charges the accused faces.

But how late can the prosecutor file for new charges or update the charges? The prosecutor can request to update the charges even after the trial has started. The Florida Supreme Court in Thach v. State recently upheld the lower court’s decision to permit the prosecutor to amend the charging document mid-trial. 

In Tach, the defendant was originally charged with three counts of capital sexual battery, nine counts of sexual battery, and three counts of lewd or lascivious molestation. The appeal was about four of the sexual battery counts. During the trial, Tach sought a Judgment of Acquittal on these sexual battery counts, which would have dismissed the counts, because the was no evidence of penetration or union to sustain the charges as a matter of law. The prosecutor’s answer to the Judgment of Acquittal was to amend these four counts and change them to lewd and lascivious molestation.

Tach’s defense attorney objected to the mid-trial amendment because they would have asked different questions on cross-examination if they knew the defendant was facing lewd and lascivious molestation instead of sexual battery.

The court held that mid-trial amendments must be assessed on a case-by-case basis to determine by the totality of the circumstances (meaning by looking at all the facts as a whole) if the amendment prejudiced the substantial rights of the defendant. Prejudice to the substantial rights of the defendant, in this case, means the right to a fair trial. One of the factors a trial court may look at (as it did in Tach) is the defense’s theory of the case. If the defense theory of the case were to change due to the charges, then the defendant may be prejudiced if the defense prepared for trial on a specific theory and that theory (or strategy) now has changed.

The court will also determine if the new charges stem from the incidents in the original charges; in the case of Tach, the new amended charges stemmed from the original criminal incident. One major flaw in Tach’s case is that the defense counsel failed to properly go through the failed to motion the court, meaning the defense failed to ask the court to do something, failed to motion the court to re-call the witnesses after the court accepted the new charges. Re-calling a witness would mean that one of the Prosecutor’s witnesses will be called to the stand again to testify and the defense could have asked the additional questions that they wanted to. It’s possible that the trial court would have denied the motion, but by failing to even ask the court to re-call these key witnesses the defense did not preserve the issue for appeal. If the issue isn’t properly preserved, then the appeals court generally doesn’t consider that issue.

This flaw is major because one of Tach’s main arguments was that the defense would have questioned the witnesses differently if the defendant was originally facing these amended charges. If Tach truly would have questioned the witnesses differently then defense counsel should have attempted to re-call those witnesses by asking the court to do so. Tach also did not request a continuance, which would have paused the trial, and permitted the defense to prepare the defense to the new counts.

The court in Tach used multiple factors to determine that Tach was not prejudiced by the mid-trial amendment, again prejudice in this case means that the defense would have changed their theory of the case (their strategy) due to the amendment. The court found that the amendment included charges that stemmed from the same criminal incident as the original charges, the new charges have similar elements as the prior charges, and finally, the defense failed to properly preserve the issue.

In a different case, the appeals court found that the defendant was prejudiced by the prosecutor’s mid-trial amendment.

In Davis v. State, the defendant was charged with lewd or lascivious molestation and delivery of Xanax to a minor. The state amended the information to add another count, delivery of marijuana to a minor. This amendment was done on the first day of trial before the jury was sworn in. Davis’s defense counsel objected to the amended and then motioned the court for a continuance to prepare a defense for the new count. The appeals court reasoned that the defendant needs to have an opportunity to investigate and prepare any applicable defense to the charges they face. Unlike Tach, Davis was facing a completely new charge with completely different elements that the prosecutor has to prove. Davis’s defense counsel adequately argued that the defendant would be prejudiced by the new charges and that the charges were a complete surprise. As a result, the appeals court reversed the charge of delivery of marijuana to a minor, meaning that the prosecutor will now have to run another trial for the new count.

Finding a Defense Attorney in Tallahassee, Florida

The arguments to prevent the prosecutors from amending charges against defendants are complex, so it’s imperative that you hire a skilled Florida criminal defense attorney to fight on your behalf. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have decades of experience assisting Florida’s criminal defendants and will fight for your freedom. Give us a call at (850) 681 – 7777 or send an online message today to discuss your legal matter during an open and free consultation with an attorney in our team.

Written by Melissa MacNicol

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