Domestic Violence - Florida Statute 741.28 | West Palm Beach Criminal Lawyer
Domestic Violence Criminal Cases occur when a family member, someone you live with or are in a relationship with accuses you of violence. The domestic violence statute, §741.28 explains several different violent offenses that are considered an act or crime of domestic violence. The statute, with hyperlink above, also defines family or household member.
To be arrested or accused of domestic violence is a difficult situation for all parties involved. It often implies that there is a serious problem in the relationship. Of course, misunderstandings occur or one finds themself being arrested by an over zealous or overly cautious police officer. There are many reasons one is arrested for domestic violence. Our office understands the difficulties with this type of case. We have represented lots of people that have been accused. We have seen alleged victims contact the state attorney’s office in an attempt to dismiss charges and their wishes are ignored. Remember, it is the state attorney’s case to charge or not to charge, the alleged victim has some say but the prosecutor makes the ultimate decision. We are here to help. We advocate by humanizing you and sharing your version of events with the prosecutor in an effort to have the case dismissed.
When you are arrested the court automatically places a no contact order, which means you can’t go home to your family. If you do, you are rearrested for additional crimes. A domestic violence attorney can help with that process by filing motions with the court requesting the no contact order be changed to “ no harmful contact” but the court makes that decision.Domestic Violence Lawyer in Palm Beach County, Florida
If you are arrested or the police are calling you regarding an accusation of domestic violence, The Law Office of Roger P Foley is available. You will speak directly to an attorney. We will stand by your side and be your voice in all-legal proceedings. The goal is to always have the case dismissed or reduced.
Call us today at (561) 746-7076; we are technologically available via Zoom, Skype, telephone or in person. We represent people facing charges in Palm Beach County Court in West Palm Beach (the main courthouse), the North County Court House in Palm Beach Gardens and the South County Courthouse in Delray Beach. We are available to people arrested in Boca Raton, Boynton Beach, Greenacres, Lake Worth, Juno Beach, Jupiter, Royal Palm Beach and Wellington. We handle cases in every county in Florida, however we often represent people in Broward County, Martin County, Miami-Dade County, and St Lucie County. If you need us, call us.Domestic Violence Cases in Palm Beach County, Florida Florida Statute Defining Type of Individuals Charged with Domestic Violence
Florida Statute § 741.28, and §784.046(5)(d)(1) define family and dating violence under the domestic violence statute and is clearly explained to involve people that live together, previously lived together, in a relationship, are related by blood or marriage. Same sex relationships are also included. Click on links above to see Statute and exact definition.Frequently Charged Domestic Violence Cases in Palm Beach County, Florida
- Aggravated Assault (Florida Statute § 784.021) 3rd degree Felony Maximum 5years Florida State Prison (FSP)
- Aggravated Battery (Florida Statute § 784.045), applies to victim hit with object or if victim is pregnant at time and defendant knew about pregnancy. 2nd degree Felony, Max 15 years *FSP
- Aggravated Stalking (Florida Statute § 784.048(3)). 3rd degree felony Maximum 5 years FSP
- Assault (Florida Statute § 784.011) 1st degree misdemeanor Maximum 365 days Palm Beach County Jail.
- Battery (Florida Statute § 784.03) 1st degree misdemeanor Maximum 365 days Palm Beach County Jail. Felony Battery is under the same statute- 3rd degree felony Maximum 5 years FSP
- False Imprisonment (Florida Statute § 787.02) 3rd degree felony Maximum 5 years FSP if it’s an adult, if a child under 13 with enumerated felony it’s a 1st Degree Felony punishable up to life in Prison.
- Felony Battery by Strangulation (Florida Statutes § 784.041(2)(a)) 3rd degree felony Maximum 5 years *FSP
- Kidnapping (Florida Statute § 787.01) 1st degree felony punishable by life in prison.
- Stalking (Florida Statute §784.048(2)) 1st degree misdemeanor Maximum 365 days Palm Beach County Jail.
- Violation of Injunction for Protection Against Domestic Violence (Florida Statute §741.31) 1st degree misdemeanor Maximum 365 days Palm Beach County Jail.
Florida Statutes state that “any criminal offense resulting in physical injury or death” of a family or household member may be charged as domestic violence.
*FSP=Florida State PrisonPetition for Injunction (Restraining Order) in Palm Beach County, Florida Domestic Abuse Cases
When an arrest is made in a domestic violence case, the police will provide the alleged victim with a domestic violence pamphlet that provides instructions on how to apply for an injunction. Yes, even though every case of domestic violence begins with the premise of a no contact order by the first appearance judge. There will likely be a no contact order in criminal case and if a Petition for injunction is filed then there will be an injunction order in the family court, commonly referred to in other jurisdictions as a “restraining order.”
Injunctions can be petitioned for using Florida Statute § 741.30 and § 784.046, even if no arrest has been made. This is a civil remedy that has serious consequences. The alleged victim goes down to the courthouse and requests to submit a petition. There are people there to assist however they are clerks and can’t give legal advice. Consult an attorney if you need assistance beyond the basics provided by clerk. The petition will be reviewed by a judge and determine if they think there is enough evidence to grant the request temporarily. If the temporary is granted it is valid for 15 days and a court date is set for the permanent order. If not granted, a hearing will still be set so you can tell the assigned judge what occurred and he/she will determine if permanent order is to be granted. If you are the respondent, the person that is alleged to have committed the domestic violence, you should consult a domestic violence/criminal defense attorney to represent you in this hearing. Anything you say can be used against you in a criminal case. If you choose not to hire an attorney and speak during this hearing it can be used against you, if so it can lead to a criminal charge. * If you needed a heart bypass or stint in your heart you would not operate on yourself so don’t be a fool and try to represent yourself in a domestic violence injunction hearing because it usually backfires.
If the injunction is granted, you will be prohibited from having contact with the petitioner. The time period depends on the facts and the judges ruling. Injunction Orders can be permanent injunctions (life or until the order is vacated) or as little as three (3) months. That is why you hire a Domestic Violence lawyer. If the order is granted, you will not be able to purchase a firearm. You will lose your concealed weapons license. You will have no contact with the petitioner/victim, or be in any location that they are in. An injunction can interfere with your ability to see your kids as it is used in child custody cases to prevent visitation or cause your visitation to be supervised. Background checks will show a domestic violence injunction.
Failure to adhere to the Judge’s Order of Protection, the Injunction Order, is a crime. Florida Statute §741.31 Violation of Injunction for Protection against Domestic Violence; a first degree misdemeanor punishable by a maximum of 365 days in Palm Beach County Jail.Convicted of Domestic Violence Charge Has Serious Consequences
If you are convicted of a domestic violence charge, even a misdemeanor, you will have a minimum of 5 days incarceration. See Florida Statute §741.283. That does not mean you will receive 5 days that means you will do minimum of five days in jail. Judges often sentence more than the minimum, if convicted. If convicted of a felony you are looking at definite incarceration and likely prison.
Any plea to a domestic violence charge is non sealable or expugnable. That means it is on your record for life. Even if, you receive a withhold of adjudication the case cannot be removed from your record.
Loss of concealed weapon license and inability to purchase a firearm, whether you plea and receive withhold of adjudication or conviction.
The goal is to have the charges dismissed, or have them changed. There are diversion programs on misdemeanor battery domestic violence cases.
* If you go to trial and are successful in receiving a “not guilty” verdict. You are only eligible to seal your record. After sealing, you must wait 10 years to expunge.Within 24 Hours After Arrest of a Domestic Violence Charge You Will See a First Appearance Judge in Palm Beach County, Florida
Oh, how wonderful, Florida has a “no bond” policy so you cant bond out without seeing a judge. This is what is referred to as “first appearance.” It’s a no win situation because 99.99 percent of the time, the judge will find probable cause for the arrest. Even if, the alleged victim, shows up for court and tells the judge and the prosecutor they hit you, spit on you, cracked a plate over your head, hit you with the car, stabbed you, shot at you, or any other thing that would be obvious to a person listening that you did not commit a crime…..the state will not drop the charges at the hearing. Obviously, any statements like that on the record may persuade the case filing attorney to decline the charges but nothing is guaranteed as its strictly up to the State Attorney’s office to go forward or not on the case.
One good thing about first appearance on a domestic violence charge, is that if victim attends and makes a request to the victim advocate that he/she wishes to speak. The victim advocate will alert the judge that they wish to speak and the judge will listen. The alleged victim may request contact with the defendant and the judge may grant “no harmful contact” and you could go home. It can also harm the Defendant if judge starts asking questions about the case. Remember, the alleged victim will be under oath in court and if during their testimony they reiterate/repeat that they were touched or struck against their will then the case becomes more difficult. The alleged victim can also testify that they are petrified of the defendant and say things that will cause the judge to increase the bond amount and add additional conditions such as supervised release and/or an ankle monitor. First appearance occurs seven days a week. Yes, weekends and holidays.Defenses to Domestic Violence in Florida
There are defenses to Domestic Violence, some of which are statute specific. For example, with the exception of people who have a child in common, the “family or household members” against whom the domestic violence was committed must be currently living together in one house, or must have lived together in the past in one house. If the defendant and victim do not have a child together and never lived together, any physical violence would not be domestic by statutory definition.
When the police are sent to investigate Domestic Violence incidents, they tend to be on high alert because the parties involved are often emotionally charged. Police officers in Florida tend to assume that everyone involved in a domestic call is dangerous. Due to the heightened perceived threat, police officers are usually more aggressive in these types of situations and are much more likely to make an arrest for public policy reasons. Arrests are often made without any common sense justification, but rather to defuse the situation. When officers are called out to a domestic dispute, they are making an arrest – an arrest can rarely be stopped.
A person who is facing an arrest for domestic violence, especially when it is for something as simple as grabbing a phone from someone’s hands, can feel overwhelmed and extremely emotional. However, your actions following an arrest for Domestic Violence can make all of the difference in the world regarding the final outcome of your case. It is important that you do not fight with the police officers and that you exercise your right to remain silent. You can fight the charges later in court where cooler heads can prevail.Domestic Violence Defense Attorney Available in Your Area
Domestic Violence is a serious charge with serious consequences, if you are accused or arrested in Florida for domestic violence or need assistance in an injunction hearing, consider the Law Office of Roger P. Foley at (561) 746-7076 or via email at. We are here to assist you and have offices in West Palm Beach and Fort Lauderdale. We are available throughout the State of Florida.
Frequently Asked Questions
- What the State Prosecutor Has to Prove to Convict a Defendant of This Crime?
- Who Constitutes a “Family or Household Member?”
- How Do you Defend a Domestic Violence Case?
- How Can a Domestic Violence Case be Dismissed?
- Do Most Domestic Violence Cases Go to Trial?
- Should I Plea Bargain My Domestic Violence Case?
- How Long Does a Domestic Violence Case Last?
- Is Domestic Violence a Crime?
- What is the Penalty for Domestic Violence?
In order to convict a defendant of Domestic Violence, the prosecutor for the State of Florida has to prove:
- There was a criminal offense resulting in physical injury or death, and
- That the crime resulting in physical injury or death was committed against a “family or household member.”
Florida Statute 741.28 provides an extensive list of who can be considered a family or household member, and includes spouses, former spouses, blood relatives, people related via marriage, people who live together as a family, people who have resided together in the past as a family, and people who have a child in common (even if they have never been marred). are parents of a child in common regardless of whether they have been married.
Our office utilizes a 3-step strategy. 1) We contact the state attorney’s office to determine who is assigned to filing your case. We contact them and give your side of the case. What we say is considered a proffer, not testimony nor evidence, however it helps the assigned prosecutor fill in gaps in the story and see the other side. Police reports tend to be one sided. If the victim has signed a waiver of prosecution we also share that with prosecutor in an effort to have charges dismissed. 2) If case is filed we discuss with client and prosecutor the possibility of entering a diversion program. Diversion programs are great because they guarantee a dismissal of charges if the defendant completes the requirements agreed to by all parties. Usually anger management classes, drug or alcohol evaluation and /or community service hours. 3) if the state attorney does not agree to diversion or our client is not interested in diversion and wants a trial we then prepare the case for trial by reviewing discovery, taking depositions, when applicable, and filing motions all while preparing a them for the jury to latch onto. Every case has a theme. The goal is to be acquitted of the charges.
The case can be dismissed several ways. Best chance is at the very beginning. We contact the case intake attorney, the person responsible with determining whether the charges the police accused you of should be filed in an actual court case. Another manner to have charges dismissed via a diversion program. A case could get dismissed during a motion to suppress or dismiss but not as common as the two ways above. Lastly, if you win at trial. Crazy thing to note: If you win in a jury trial you cannot expunge your record but only seal it in the State of Florida.
No. Most cases are resolved by plea bargain or diversion. We love to go trial but that decision is up to our client. The problem with trial is that if you lose you are incarcerated. The Florida statutes provide for a minimum of five (5) days incarceration if you lose a misdemeanor battery case. If it’s a felony domestic violence case then you are looking at prison, more than one year of incarceration.
This is a very individualistic decision. It is all about the facts and evidence involved in your case. If you were to plea to domestic violence charges, the charges will remain on your record forever. It does not matter if you receive a withhold of adjudication. You are also not eligible to have a concealed weapons permit if you have a domestic violence charge on your record.
A domestic violence case can be over within 40 days, if case filing dismisses the case as this is amount of time the state has to file formal charges. It can also last a year and a half, if the case goes to trial. Diversions can be 90 days or nine (9) months. Each case is different so discuss with your criminal defense attorney.
Absolutely it is a crime. If you accept a plea bargain or are found guilty in trial, the charges will show on your criminal record for life. There is confusion regarding this question because a domestic violence injunction and/or restraining order is civil in nature. An injunction or restraining order is handled by the family court and is not criminal. However, if you are a Respondent you should consider retaining an attorney to defend the injunction. Anything you testify too during an injunction may be used against you in a criminal case.
That depends on the charges filed against you in Florida. Domestic Violence Misdemeanor Battery is punishable by up to one year in jail. Felony Battery and Strangulation have a maximum of five (5) years’ incarceration. Aggravated Battery has a maximum of 15 years. Discuss with your attorney your specific charges.
Domestic Violence Video Series