What is Domestic Violence in Florida?
Under Florida Statutes § 741.28 domestic violence battery is defined as a crime of violence committed by one family or household member against another member of the family or household. Domestic violence does not always require that someone batter another member of the family, various crimes may be classified as Domestic Violence under Florida law. Some crimes include: battery, aggravated battery, assault, aggravated assault, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping and false imprisonment.
“Family or household member” under the statute is defined as spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family, persons who have resided together as if a family in the past, and persons who are parents of a child in common (whether married or not). The family or household members must be currently residing or have in the past resided together in the same home (unless there is a child in common, in which case they do not have to be living together).
“Dating violence” battery is basically just a regular misdemeanor battery case, but between people in a romantic relationship. The following factors help make the determination of whether you will be charged with Dating Violence rather than simple battery:
1. A relationship existing within the past 6 months
2. Relationship involved affection or sexual involvement between the parties
3. The length of time and continuity of the relationship
What Penalties Should I Expect To Face?
Under Florida Law, Domestic Violence is an enhancement or penalty enhancement to simple battery charges where the defendant would have to satisfy certain additional requirements and penalties. If you are adjudicated guilty of domestic violence battery, you could be facing the following penalties:
- Up to a maximum of one (1) year in prison
- Mandatory one (1) year supervised probation
- Up to a maximum of a $1,000 fine
- Minimum Mandatory Sentence of five (5) days in jail
- 29 week batterers intervention program
- No sealing or expungement of the criminal record
- Concealed Weapons Permit revoked
Under Florida law, if there is any type of plea to a charge of domestic violence battery even if adjudication is withheld there is no eligibility to have the criminal record sealed or expunged. The accused will have a criminal record for domestic violence battery for life.
No Contact Order:
Almost always in a domestic violence case, the court will issue what is called a “no contact order” restricting the accused from contacting the alleged victim, directly or indirectly through a 3rd person (friend or family member) who is not your attorney, in person, by phone, text, letter, email, social media or other means. It is a type of temporary injunction that is almost always imposed as a condition of release from jail.
If you violate a no contact order in Florida, it may result in your immediate arrest and may land you new criminal charges that are punishable by up to 6 months in jail. Only the court has the authority to lift the “no contact” order. The victim’s consent to contact them is not enough!! It is also irrelevant that the alleged victim contacted you first.
The Modarres Law Firm may be able to file a Motion to Lift No Contact Order for you generally stating that (1) the parties would like to resume contact with each other, (2) the alleged victim wants to lift the no contact order freely and voluntarily, (3) the alleged victim is not afraid of the defendant, (4) the alleged victim does not fear or anticipate future violence, and (5) what type of contact the parties agree to have. The court will hear the motion, sometimes testimony will be presented as well as brief arguments from both attorneys. Then the court will either decide to lift the Order or will allow it to remain in full force.
Final or Permanent Injunction Hearing:
The Injunction Process begins when the alleged victim (petitioner) files for an injunction, usually at the courthouse. A judge will decide whether the sworn allegations contained in the paperwork are sufficient to meet the requirements of Florida law for the issuance of an injunction. If they are, the judge will enter a Temporary Injunction, which will be valid for 15 days . A hearing will be set within 15 days (to decide if a Final Order of Injunction should be entered), and the Sheriff’s Office will attempt to personally serve the person who the injunction is filed against (the respondent) with the injunction paperwork. The Temporary Injunction can require the respondent to have no contact with the person filing the injunction (the petitioner), stay away from the petitioner’s home and workplace, vacate a shared residence, award temporary custody of minor children and require the surrender of firearms.
At the hearing, the parties will be sworn in and may or may not be represented by an attorney. We recommend that you hire the Modarres Law Firm to help guide you through the process and protect you from making any incriminating statements which may affect an outstanding Domestic Violence criminal charge. All statements in this hearing are recorded and may be used against you in a future criminal proceeding!
Both sides will have an opportunity to present evidence and witnesses to argue their version of the facts. The judge will decide whether to grant a Permanent Injunction after taking testimony from the parties and witnesses, and considering any evidence which is presented. The standard is a very low probable cause standard, a burden which a petitioner may be able to meet rather easily.
If a Permanent Injunction is granted, either party may petition the court to change or terminate the permanent injunction, or it will be ended automatically on the specific date set by the judge (usually 1 year from the date of the hearing). The Permanent Injunction can require the respondent to have no contact with the petitioner, stay away from the petitioner’s home and workplace, award custody, visitation, child and spousal support, and require the surrender of firearms. You will usually be allowed to return to the home to retrieve any personal effects and items with the accompaniment of law enforcement. The court can also order the Respondent to attend a batterers’ intervention program.
Batterers Intervention Program:
In Florida, any defendant who pleads to any Domestic Violence charge must complete a “Batterer’s Intervention Program” as a mandatory condition of their probation. Failure to complete the program may result in a violation of probation.
The program is designed and supervised by the Florida Department of Children and Families (DCF) and usually lasts about 6 months. It consists of an initial assessment of mental health and possible substance abuse, orientation, and at least twenty-
The cost of the Batterers Intervention Program is typically an enrollment fee, as well as a $30.00 per counseling session fee. In addition to any time missed from work, travel, gas, etc… the program could be quite lengthy, tedious and expensive. Therefore, it is best that you hire an experienced attorney who will be able to mitigate any possible penalties you face and get you the best outcome possible.
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Copyright © 2013 The Modarres Law Firm – Orlando Florida Defense Lawyers – Central Florida Criminal Defense Attorneys – All rights reserved. Orlando Criminal Lawyer Disclaimer: The civil rights, criminal, criminal defense or other legal defense information presented at this site should not be considered formal legal advice nor the formation of a lawyer or attorney client relationship. Our criminal defense law firm serves the following communities, among others: Orlando, Pine Hills, Apopka, East Orlando, West Orlando, Downtown Orlando, Conway, Bay Hill, Doctor Phillips, Belle Isle, Pine Castle, Oviedo, Ocoee, Winter Park, Winter Springs, Maitland, Eatonville, Winter Garden, Southeast Orlando, Southwest Orlando, Casselberry, Altamonte Springs, Maitland, Apopka, Sanford, Seminole County, Orange County, Osceola County, Lake County, Bay County, Panama City Beach, Panama City, Heathrow, Lake Mary, Longwood, Midway, UCF, University Park, Thornton Park, Baldwin Park, Colonial Drive, Orange Avenue, Robinson Street, S Orange Avenue, Downtown Orlando, Alafaya Trail, University Blvd, Curry Ford, Lake Underhill, Goldenrod Road, Dean Road, Chickasaw Trail, Pershing, Semoran Blvd, Lake Margaret, Conway.
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