People often refer to domestic violence generically to many cases in Florida. When people refer to a domestic violence case, they are often referring to the formal charges of assault, battery, aggravated assault, aggravated battery, interference with a 911 call, witness tampering, battery upon a pregnant woman, domestic violence strangulation, as well as sexual battery, aggravated stalking, false imprisonment, and kidnapping.
However, the phrase “domestic violence” has a very particular meaning as defined by Florida law. Per Florida Statute Section 741.28(2), a crime of domestic violence includes any of the following factual scenarios:
- The person charged with committing a criminal act is an intimate partner of the victim,
- The person charged with committing a criminal act is a current or former spouse of the victim,
- The person charged with committing a criminal act upon who lived with or previously lived with the victim,
- The person charged with committing a criminal act is a person who is akin to a spouse, or
- The person charged with committing a violent assault against an adult or youth victim when that victim is under the protection of domestic violence laws of Florida.
A criminal act falls under the umbrella of domestic violence when the act involves any allegation that a person, as described above, causes another to fear for their safety, caused physical pain, caused psychological pain, injury, or caused an illness.
The importance of defining an incident as one that involves domestic violence lies in the protection a victim could receive from the justice system in Florida. A victim of domestic violence may receive encouragement from the police or another to file for an “Injunction for Protection Against Domestic Violence.” A domestic violence injunction is known as a “restraining order” by people who may not reside in Florida.
The person whom the courts enjoin could lose valuable rights. Of course, there is no right to place another in fear or injure another, but the person enjoined by court order may have his or her freedom of movement restricted, and the court might strip that person of the right to see his or her children. Furthermore, the person enjoined by court order will be placed on notice that a violation of the injunction could lead to additional criminal charges.
What Qualifies as a Violent Act Under Florida’s Domestic Violence Laws?
Not every crime committed between domestic partners qualifies for protection under Florida’s domestic violence laws. Per Florida Statute 741.30, judges have the power to order an injunction in limited circumstances. Those circumstances include:
- The commission of a crime resulting in a physical injury to the victim;
- Words, acts, or a combination of the two that place a person in fear; or
- The person believes, based on the conduct of another, that he or she is likely to be harmed by a violent act.
Criminal charges usually accompany a petition for a Domestic Violence Injunction. However, criminal charges need not be issued for a judge to grant the petition. The respondent who is served with a Domestic Violence Injunction must be very careful in these situations. He or she must have a Florida Domestic Violence Injunction Defense Attorney at the hearing for an injunction as well as have the same attorney handle any related criminal matter to ensure the protection of the respondent’s legal rights.
Anything a person says in a court hearing might be used against him or her later on. Therefore, by speaking on his or her own behalf, the respondent could unknowingly subject him or herself to criminal liability. The respondent can invoke his or her right to remain silent and to avoid incriminating himself or herself. However, many respondents are unaware of their rights. As such, it is essential to allow an attorney to handle all domestic violence criminal and injunction matters.
Florida courts weigh three factors to ascertain whether the allegations involve people who are involved in a domestic relationship. Courts look at the overall length of the relationship, the nature of the relationship, and how often the people involved interact with each other. Domestic violence laws in Florida are not designed to govern over a causal relationship. Courts in Florida provide enhanced protections for people in domestic relationships that turn violent as a means to stop patterns of physical, emotional, and psychological abuse. The overarching issue in a domestic relationship that involves an act of violence is one of control. Domestic violence laws in Florida try to break the cycle of control one has over an intimate partner or spouse.
Domestic violence is not marital discord. Florida’s domestic violence laws should not be invoked to govern marital disagreements or persistent fighting that might be an indication that there are problems with the romantic relationship. To be sure, a domestic partner should never seek shelter under the power of a domestic violence injunction because a person is angry with his or her significant other or as retribution for some slight committed by another during a relationship. Domestic violence injunctions are serious legal matters that must be treated with respect. Domestic violence injunctions should not be abused nor used as a means to control the other person.
Obtaining the Protection of a Domestic Violence Injunction in Florida
The victim of domestic violence in Florida has a right to petition the court to obtain the protection of a Domestic Violence Injunction. The petitioner must obtain the appropriate paperwork from the Clerk in the court nearest to where the petitioner resides. A member of the Clerk’s office will assist the petitioner by completing the necessary paperwork. Once the paperwork has been completed, the petitioner will appear before the judge. The judge will review the petition to see if the allegations qualify for a Temporary Injunction.
The petitioner must state that he or she has a particular relationship with the individual who is the subject of the order. Per Florida Statute Section 741.28(3), the two parties must be considered “family or household members,” which includes parties who are current or former spouses, related to each other by blood or marriage, lived together as though married, even if they were not legally married, or have a child in common, regardless of whether the parties lived with each other. The petition must also include evidence that the petitioner is the victim of some violent act.
The person subject to the temporary order, who is the respondent, must receive notice of the temporary order. The return date for the temporary order is usually fifteen days from the date that the judge issued the temporary order. On the fifteenth date, the court will hold a formal hearing on the issue of whether the order should be extended for up to one year. The respondent has a right to be heard on the issue of whether the order should be extended or dismissed. A refusal of the petitioner to appear at an extension hearing usually forces the court to dismiss the order.
Additional Injunctions Against Violence Under Florida Law
In addition to the standard or customary Injunction Against Domestic Violence, Florida courts possess the authority to issue orders restraining others from committing acts against people with whom there is no substantial dating or familial relationship. A person placed in fear of bodily harm by another but who is not in a substantial dating relationship nor is related by blood or marriage can ask the court for an Injunction Against Repeat Violence. The person petitioning the court for an order preventing repeat violence must allege that he or she was the victim of two separate acts of violence within six months. Injunctions Against Repeat Violence may be granted to individuals who fall outside of the scope of the protections granted to Domestic Violence Injunctions.
Most often, petitioners for Protections Against Repeat Violence seek an order enjoining their former friends, co-workers, or neighbors. Additionally, a person victimized by an act of sexual violence and who has reported the crime to the police can ask the court for an Injunction Against Sexual Violence. The court could issue an order in this circumstance even if the charges were dropped or reduced.
Violations of Injunctions for Protection from Domestic Violence
The petitioner has two avenues of relief for a violation of an injunctive order. The violation of an injunctive order may be a criminal act. Failing to obey the injunction, threatening the petitioner, or abusing the petitioner is a crime. Consequently, the petitioner, or victim of a crime, should call law enforcement and report the violation. The investigating officers will examine the protective order and determine whether they have probable cause to arrest the respondent for a violation of the injunctive order. If the violation does not rise to the level of a crime, then the petitioner can file a motion for contempt of court in the court which issued the restraining order.
No-Contact Orders After an Arrest for Domestic Violence Charges in Florida
The person accused of a crime involving domestic violence will be held in jail without the possibility of posting a bond until the first appearance before a judge. The person’s first appearance typically happens within the first 24 hours after arrest. However, anyone arrested and booked into the jail on domestic violence charges after midnight might need to wait an additional 24 hours before seeing a judge.
In addition to setting bond at the first appearance, the accused will receive a Standard No-Contact Order from the judge. Florida’s Standard No-Contact Order instructs the defendant, under pains of contempt of court and bail violations, not to speak with or otherwise contact the alleged victim in the case, irrespective of whether the alleged victim sought the protection of a Domestic Violence Injunction.
Florida’s Standard No-Contact Order should have a chilling effect on the defendant and the alleged victim. The parties have a court-imposed break in their relationship. The time apart helps to diffuse immediate threats of violence and allows the alleged victim to be free from harassment or intimidation while pursuing the criminal charges. The defendant who is the subject of a Standard No-Contact Order cannot have a third-party contact the alleged victim either while the order is in place.
The condition of a Standard No-Contact Order seems onerous on the accused. The effect of the order might prevent him or her from seeing or speaking with his or her children or other family members. However, the accused can benefit from this arrangement. If the defendant follows the provisions of the Standard No-Contact Order issued by the court, then there will be no more difficulties between the defendant and the victim.
The person subject to the Standard No-Contact Order must never violate the order of the court, despite the temptation to try to smooth the situation over with the alleged victim. The temptation could be very high, depending on the stakes too. The defendant could be facing substantial jail time or might stand to lose custody of his or her children. The urgency of the situation could compel the defendant to try to “reason with” the victim.
Violating the order will only make matters worse in the long term. At best, the court will find a violation of the conditions of release and could revoke them, thereby resulting in pretrial detention for the accused. Also, the police could investigate and press charges for witness tampering along with requesting charges for a violation of conditions of bail. Additional criminal charges subject the defendant to increased penalties, including long periods of incarceration. Therefore, it is vital that anyone subject to a No-Contact Order abide by that order and NEVER contact the victim.
The penalty for a violation of an order of pretrial release is a maximum of one year in jail and a fine as high as $1,000.00. Florida Statute Section 741.29(6) considers the violation of pretrial conditions to be a first-degree misdemeanor.
Many times, the victim asks the court to drop the No-Contact Order. The judge might grant the request depending on the situation. Once the case is resolved or dismissed, then the pretrial prohibition against contact is no longer valid. The judge might include a No-Contact order as part of a probationary period, however.
An experienced and knowledgeable Florida Criminal Defense Attorney can help modify or remove the No-Contact Order. The attorney could file a motion to Modify Conditions of Release and ask the judge to remove the No-Contact Order. Many times, the court, if it grants the order, will order the accused not to abuse the victim physically, psychologically, or emotionally. Additionally, the seasoned defense attorney can negotiate with the prosecutor to get the charges reduced or dismissed. However, prosecutors do not always capitulate to the defendant’s requests, and preparation for trial becomes necessary.
How to Handle a No-Contact Order in Florida
If a person is subject to a No-Contact Order because of allegations of domestic violence and battery, and the victim does not want to press charges, the parties involved should attempt to modify any No-Contact Orders that have been imposed by the court as soon as possible. This is handled by filing a Motion to Modify Conditions of Release.
What Does it Mean to Modify or Lift a No-Contact Order in Florida?
Essentially, the modifying or lifting of a No-Contact Order Allows the parties involved to resume contact, which could lead to discussing their strategy to have the charges dropped. To prosecutors, this may indicate that the alleged victim may not be cooperative and is likely against prosecution.
Domestic Violence and Battery According to Florida Law
According to Florida Statute Section 784.03(1), a person may face charges of battery when he or she “actually and intentionally touches or strikes another person against the will of the other; or intentionally causes bodily harm to another person.” Per Florida Statute Section 784.041(1), a person may face charges of felony battery if, in the course of committing the battery, he or she causes great bodily harm, permanent disability, or permanent disfigurement.
Battery in the context of domestic violence involves an act of battery on a “family or household member,” which, per Florida Statute Section 741.28(3), includes the following:
- Spouses;
- Former spouses;
- Persons related by blood or marriage;
- Persons who are presently residing together as a family;
- Persons who have resided together in the past as a family; and
- Persons who are the parents of a child in common (regardless of whether the parents have been married).
Domestic violence battery is treated more seriously than a simple battery charge under Florida law. Domestic violence battery is one of the more commonly charged domestic violence crimes. Moreover, the penalties for domestic violence battery are much worse than they are for a simple battery. As such, a qualified Florida Domestic Violence Battery Defense Lawyer should be handling a case from start to finish.
Florida Penalties for Domestic Violence Battery
Domestic battery or domestic violence battery in Florida is classified as a first-degree misdemeanor, which carries a potential jail sentence of one year and a fine of up to $1,000. If a person faces felony battery charges, he or she faces a third-degree felony that carries potential jail time of 5 years and a fine of up to $5,000. In addition to the standard penalties associated with a first-degree misdemeanor and third-degree felony under Florida law, additional penalties associated with domestic violence battery and felony battery include the following:
- Completion of a 26-week (BIP) Batterer’s Intervention Program;
- 12 months of probation;
- 5 days of required jail time if the defendant is adjudicated guilty and there is bodily injury;
- More community service hours;
- Loss of concealed carry rights and other civil rights; and
- There could be an injunction or no-contact order issued.
Because of the severe consequences associated with a domestic battery conviction in Florida, anyone facing criminal charges and/or a domestic violence injunction must move swiftly to work with an attorney. The long-term effects of having a criminal record – especially one that labels the accused as a violent person – are far-reaching and can include the loss of your ability to possess a firearm.
Additional Criminal Offenses Related to Domestic Violence in Florida
Although domestic battery is more commonly charged, there are additional crimes of domestic violence that can lead to serious jail time, large monetary fines, and a permanently tarnished record, making life very difficult moving forward. When facing any domestic violence charge, you need to work with a Florida Domestic Violence Defense Attorney who has experience handling all types of domestic violence cases. Additional criminal offenses aside from battery that relate to domestic violence in Florida include the following:
- Aggravated Domestic Battery With Serious Bodily Injury(S. 741.028(2); F.S. 784.045) – A person may face aggravated domestic violence battery charges if, in the course of committing battery, the person “intentionally or knowingly causes great bodily harm, permanent disability, or disfigurement.” Aggravated battery involving serious bodily injury is classified as a second-degree felony under Florida law, which carries a potential jail sentence of 15 years and a fine of up to $10,000. When the aggravated battery is committed as an act of domestic violence, the penalties are substantially harsher.
- Aggravated Domestic Battery With Use of a Deadly Weapon (S. 741.028(2); F.S. 784.045) – A person may face aggravated domestic violence battery charges if, in the course of committing battery, the person uses a deadly weapon. Aggravated battery involving the use of a deadly weapon is a second-degree felony with a potential jail sentence of 15 years and a fine of $10,000.
- Domestic Battery by Strangulation (S. 741.041(2)(a)) – A person may face domestic battery by strangulation charges “if the person knowingly and intentionally, against the will of another, impedes the normal breathing and circulation of the blood of a family or household member or of a person with whom he or she is in a dating relationship, so as to create a risk of or cause great bodily harm by applying pressure on the throat or neck of the other person or by blocking the nose or mouth of the other person.” Domestic battery by strangulation is a third-degree felony with a potential jail sentence of 5 years and a fine of $5,000.
- Aggravated Battery on a Pregnant Victim(S. 784.045(1)(b)) – A person may face aggravated battery charges if “the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant.” Aggravated battery on a pregnant victim is a second-degree felony with a potential jail sentence of 15 years and a fine of $10,000.
- Assault or Battery on Person Over the Age of 65 Years Old (S. 784.08) – A person facing aggravated assault or battery charges where the victim is 65 years of age or older faces a mandatory minimum jail sentence of at least three years as well as the imposition fine not to exceed $10,000. The charge ranges from a first-degree misdemeanor to a first-degree felony.
Additional Domestic Violence Crimes
Most acts of domestic violence lead to felony charges. Additional domestic violence crimes a person may face under Florida law include the following:
- Violation of a Domestic Violence Protective Injunction (S. 741.30) – A person who is charged with violating a domestic violence protective order under Florida law faces a first-degree misdemeanor that carries a potential jail sentence of 1 year and a fine of $1,000.
- Violation of Other Protective Injunctions (S. 784.046) – A person who is charged with violating a dating violence injunction, repeat violence injunction, sexual violence injunction, or stalking injunction faces a first-degree misdemeanor which may result in a 1-year jail sentence and a fine up to $1,000.
- Stalking, Aggravated Stalking, Cyberstalking (S. 784.048) – A person may face stalking charges if he or she “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another.” A person found guilty of stalking or cyberstalking faces a first-degree misdemeanor, which is punishable by up to 1 year in jail and a fine of up to $1,000. A person may face aggravated stalking charges if he or she “makes a credible threat” to the victim. A person found guilty of aggravated stalking faces a third-degree felony, which leads to a potential jail sentence of 5 years and a fine of up to $5,000.
- Kidnapping (S. 787.01) – A person may face kidnapping charges if he or she “forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to hold the victim for ransom, commit or facilitate the commission of a felony, inflict bodily harm upon or terrorize the victim, or interfere with the performance of any governmental or political function.” A person found guilty of kidnapping faces first-degree felony, which may result in a jail sentence of life and a fine of up to $15,000.
- False Imprisonment (S. 787.02) – A person may be charged with false imprisonment if he or she “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will” A person found guilty of false imprisonment faces a third-degree felony, which results in a potential jail sentence of 5 years and a fine of $5,000.
- Tampering with a Witness (S. 914.22) – A person may face witness-tampering charges if he or she “knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce” any person to withhold testimony or evidence, alter or destroy evidence, evade legal proceedings, hinder an investigation, or provide false testimony. Interference with a 911 call is one form of witness tampering. A person found guilty of witness tampering faces a first, second, or third-degree felony dependent on the severity of the conduct. Such felonies result in potential jail time of 5 years to life and a fine of up to $15,000.
Charges of domestic violence under Florida law will vary from case to case. As such, the types of charges a person faces will be dependent on the facts and circumstances of the case. Because of the serious criminal penalties resulting from a conviction of domestic violence crimes in Florida, anyone facing domestic violence charges must speak with a Florida Domestic Violence Defense Attorney as soon as possible.
How Can I Seal or Expunge Domestic Violence Convictions in Florida?
If you plead guilty to domestic violence battery or another domestic violence charge in Florida, you will have a lifetime record of this offense. Florida law states that a person who commits an act of domestic violence battery or any other domestic-related crime of violence, as defined in Florida Statute Section 741.28(2), is ineligible to have his or her record sealed or expunged. The best advice Florida Domestic Violence Battery Defense Lawyers at Musca Law can recommend is contacting an attorney as soon as possible to discuss a defense strategy.
Florida Domestic Violence Lawyer Defense Strategies
In Florida, domestic violence battery is a defendable charge. Our Florida Criminal Defense Lawyers agree that deciding to plead guilty probably should not be made without the representation of an experienced defense attorney who has reviewed the case and has considered your legal options. Defenses our Florida Domestic Violence Defense Attorneys employ are the following:
- Disputing the indictment based on facts and evidence;
- No Injuries;
- Domestic Violence Battery allegations with no evidence;
- Vindictive victim;
- Self-defense;
- Defense of others;
- Defense of property;
- Stand Your Ground; and
- Consensual confrontation or mutual combat.
Defense of self is a basic human right and is also an affirmative defense to allegations of violence, including domestic violence. In a self-defense case, the defendant concedes an act of violence happened but argues to the jury that the act was justified under the circumstances and is, therefore, not a crime.
Florida law permits the use of deadly and non-deadly force. Florida Statutes §776.012 permits a defendant to claim self-defense with the use of non-deadly force when the person reasonably believed that he or she was under the threat of imminent use of unlawful force. The person using non-deadly force has no duty to retreat, and if in his or her home or vehicle, then Florida Statute 776.013 presumes that the person charged had a fear of imminent harm or death if the victim allegedly entered and remained unlawfully, or entered and tried to remove another forcibly. A person who enters another’s home unlawfully and by force is presumed to commit the act with force or threat of force intentionally.
The application of deadly force in self-defense is authorized in two circumstances by Florida law. Under Florida’s widely-recognized “Stand Your Ground law,” a person can use lethal force to repel an attack without the duty to retreat if the person reasonably believes that using deadly force is required to stop the impending commission of a forcible felony, death, or great bodily harm personally or in defense of a third person.
Similarly, under Florida Statutes §782.02, the law permits the use of deadly force is and when the person acted in response to attempted murder or violent felony.
Florida law renders the “Stand Your Ground” law inapplicable in numerous circumstances. Florida’s “Stand Your Ground” law does not benefit the accused when:
- The person against whom defensive force was applied had a right to be in the home or car when the act happened;
- The person against whom defensive force was applied sought to remove from the home a child or grandchild or a person over whom he or she had legal custody or guardianship;
- The person who claims self-defense was engaged in unlawful activity in the home or vehicle; and
- The person against whom defensive force was applied was a law enforcement officer who was acting within the scope of his or her official duties and announced that he or she was a police officer.
Raising Self-Defense in Florida
Like most jurisdictions, Florida does not require the defendant to prove self-defense. Instead, the defendant has an obligation to admit only a “scintilla” of evidence that he or she acted in self-defense. If the defendant meets that very low burden, then the judge must give the self-defense instruction to the jury and allow the defense to argue for an acquittal based upon a claim of self-defense. However, a judge will not give the instruction if the person testifies he or she was angry, and therefore did not reasonably believe death or bodily harm was imminent, or that he or she was not there, and argued alibi instead.
The government bears the ultimate burden in the case when a defendant claims he or she acted in self-defense. Consequently, the government must prove beyond a reasonable doubt that the defendant did not act in self-defense.
Florida Domestic Violence Attorney Representation
Hiring an attorney is critical in domestic violence cases in Florida. The odds of charges being dropped, reduced, amended, or diverted is much better with the help of a highly-skilled domestic violence attorney. Not using a court-appointed attorney helps the prosecutor understand that the defendant is going to fight the case.
A skilled Florida domestic violence defense attorney being hired can, in some situations, dissuade the prosecutor from providing the standard offers that are being made to people without the most adequate representation. One of the things that is most important is addressing the situation as early as possible.
Early Negotiation in Florida Domestic Battery Cases
One of the key advantages of hiring a private attorney is the ability to make early contact with the prosecution. The early presentation of factual defenses, legal issues, and mitigating circumstances can have a dramatic impact on the State’s decision to move forward with a domestic battery charge. It communicates competence and resolve and establishes a rapport that may be needed in any future negotiations.
Who Decides to Prosecute a Florida Domestic Violence Case?
The State Attorney’s Office decides which cases to process. The alleged victim accounts are taken into consideration, but the decision to prosecute is handled exclusively by the Office of the State Attorney.
Enrolling in Domestic Violence Classes in Florida to Avoid Prosecution
If a person charged with domestic battery in Florida or the alleged victim voluntarily enrolls in diversion programs such as counseling, psychological or substance abuse-related programs, this could convey to the court that the parties involved are taking positive steps toward a resolution and it may also cause the prosecutor to have a different impression of the parties involved in the domestic battery situation. In most cases, it is appropriate for a defendant and/or victim to be proactive and voluntarily enroll in counseling or other psychological or substance abuse services. Voluntary participation in such programs can show a level of responsibility by the parties, change prosecutor perceptions of a case, and help with the possibility of a non-criminal resolution, which could be pretrial intervention.
Pretrial Motions for Domestic Violence in Florida
If a domestic violence charge in Florida cannot be dropped in the early stages of a case, pretrial motions can be an outlet to provide the court with additional emphasis to drop or reduce a charge. Examples of successful pretrial motions that have been exercised by experienced Florida domestic violence lawyers include, Stand Your Ground Motions, Motions in Limine, and Motions for Court Ruling.
In Florida, Stand Your Ground provides the defendant an opportunity for prosecutorial immunity, while a Motion in Limine or Motion for Court Ruling can show the prosecutor the facts and evidence problems with their case. This could lead them to reevaluate their position and deter them from pursuing the case.