Why “Silence is Golden” in Criminal Defense: Fighting the Felony Upgrade

By: John Guidry

At times, criminal defense work requires us attorneys to do something that goes against our nature: keep our mouths shut.

We like to talk. We like to argue. But sometimes, pointing out a mistake too early can actually hurt the client. It’s like playing poker. If I tell the prosecutor, “Hey, you forgot to file the fingerprint card,” guess what they are going to do? They are going to run out and file the fingerprint card.

I see this often in Felony Battery cases. Law enforcement starts with a lot of enthusiasm, trying to charge a citizen with the highest offense humanly possible. If you have a prior battery conviction, a simple misdemeanor slap-on-the-wrist turns into a felony facing prison time.

But here is the secret the State doesn’t want you to know: Upgraded cases are difficult to prove, especially if the defense attorney knows when to stay quiet.

Has a simple misdemeanor turned into a felony charge?

Don’t help the State prove their case. Call John today at (407) 423-1117 for a free consultation.

The Legal Breakdown: Dolan v. State

Let’s delve into a real-life scenario where silence paid off. The case is Dolan v. State, 2016 Fla. App. LEXIS 2183 (Fla. 2d DCA 2016).

Here is the situation. It’s a classic example of the government trying to “MacGyver” a conviction when they don’t have the evidence.

• The Charge: Dolan was charged with Felony Battery. In Florida, if you commit a simple battery but have one prior battery conviction, the State can upgrade the new charge to a felony.
• The Trial: The trial was split in two. First, the jury decided if Dolan committed the new battery (Guilty). Then, they had to decide if he had a prior conviction.
• The Screw-Up: To prove a prior conviction, the State generally needs a certified judgment with fingerprints to link it to the defendant. The prosecutor didn’t have fingerprints. They just had a piece of paper with a name on it.
• The “Fix”: The judge tried to help the prosecutor. He had a clerk print a booking photo from the Sheriff’s website, cut it out with scissors, and staple it to the judgment. I’m not making this up.

The Ruling: The appeals court overturned the felony conviction. Why?

• No Fingerprints, No Proof: You cannot prove a prior conviction just by showing a document with the same name. You need biometric proof (fingerprints) or strict adherence to public record rules.
• Judicial Overreach: A judge cannot take “judicial notice” of a website printout and staple it to evidence to help the State win.
• Improper Evidence: A booking photo from a website does not meet the strict requirements for self-authenticating public records.

John’s Takeaways

The defense attorney in Dolan did a brilliant job by waiting until the last possible second to object. If he had mentioned the missing fingerprints months earlier, the State would have fixed it. Here is what this means for your case in Orange, Seminole, or Volusia County:

• Don’t Show Your Hand: A good trial lawyer knows that sometimes the best argument is the one you save for the middle of trial when it’s too late for the prosecutor to fix their mistake.
• Fingerprints are Mandatory: If the State wants to use your past against you to upgrade a charge, they better have the fingerprint card. If they don’t, we fight it.
• Websites Aren’t Evidence: Prosecutors love to pull stuff off the internet and call it “proof.” As Dolan shows, that doesn’t fly in a court of law if you know how to object.
• The “Upgrade” Trap: Just because the police charged you with a felony doesn’t mean it will stick. We analyze your prior record to see if the State can actually prove the upgrade.

Let’s Strategy Session

This case proves that criminal defense isn’t just about knowing the law; it’s about strategy. It’s about knowing when to speak up and when to let the State walk right into a trap.

If you are facing an upgraded charge in Orlando, Sanford, Kissimmee, or Daytona, you need a team that knows how to play the game.

Call me at (407) 423-1117. Let’s discuss your defense.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.