Domestic Violence Offenses in the Tampa Bay Area
By The Kilfin Law Firm, PC, Florida
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In Florida, domestic violence is defined as any assault, battery, sexual assault, sexual battery, stalking, kidnapping, false imprisonment, or any criminal offense resulting in injury or death of one family or household member by another family or household member.
What makes the aforementioned offenses "domestic violence" offenses is the relationship, past or present, between the accused and the victim. Florida law defines a family or household member as spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common whether they have been married or not. Except for persons who have a child in common, the family or household members must be currently residing together or must have done so in the past.
The Pinellas County State Attorney's Office has a special unit or division of attorneys who investigate, charge, and prosecute domestic violence offenses at the misdemeanor level. At the felony level , there is usually one attorney assigned to domestic violence cases in each felony division. This arrangement is required by law and is therefore common throughout the state.
Florida law also mandates a pro-arrest and pro-prosecution policy for all domestic violence crimes. These types of offenses are aggressively pursued by both law enforcement officers and prosecutors. In many cases, the alleged victim of a domestic violence crime may not want to pursue the matter following an arrest or the filing of a formal charge. While the state will take the victim's position on prosecution into account, it is not necessarily outcome determinative. The state may be able to prove the case using out of court statements made by the victim to the 911 operator, responding law enforcement officers, other persons who were present at or near the time the crime was committed and, of course, any admissible statements made by the accused himself or herself. In almost every case, responding officers will photograph the victim's injuries which may also be used in a subsequent trial. The bottom line is that the victim's cooperation is not not always required for successful prosecution and, with the pro-prosecution policy in mind, a lack of full cooperation on part of the alleged victim will not necessarily result in the charge being dropped.
For a domestic violence offense, the accused is typically held on no bond until he or she is brought before a judge for a first appearance or advisory hearing. These hearings are held within twenty four hours of arrest. Prior to the hearing, the state will review the accused person's prior criminal history, looking for past instances of violent crime, crimes of domestic violence, and/or failures to appear for scheduled court hearings. The state will also attempt to make contact with the alleged victim to determine whether he or she is in fear of the accused and whether he or she wants to have contact with the accused. All of this information will be provided to the court at the advisory hearing so that the judge can determine an appropriate bond amount and whether to allow the defendant to have contact with victim upon release. If the victim is not present, and the state has been unable to reach that person, the court will usually order no contact with the victim as a condition of pre-trial release. Should the accused thereafter have contact with the victim, the state may move to revoke the bond and may also charge the defendant with an additional criminal offense.
Where the alleged victim is in fear of the accused, and does not want contact, he or she may seek an injunction for protection against domestic violence in circuit court. This is separate and apart from a no-contact order that is imposed as a condition of bond. Family or household members (as defined above) who are victims or domestic violence, or have reasonable cause to believe they are in danger of becoming a victim of domestic violence, have standing to petition for an injunction (many people refer to this as a "restraining order"). If it appears to the court, based on the pleadings and affidavits in support thereof, that an immediate and present danger of domestic violence exists, the court will issue a temporary injunction, ex parte, pending a full hearing with both parties being present. At the hearing, the court will decide whether to extend the temporary injunction or dismiss it. If the injunction is extended, the court may require the accused to attend a batterer's intervention program. If the accused violates the terms and conditions of the injunction, he or she may be criminally prosecuted.
As with all misdemeanor cases in Florida, sentencing guidelines do not apply. For a domestic related offense that is a second degree misdemeanor, the accused person is facing a maximum penalty of six months probation and up to sixty days in jail. For a domestic related offense that is a first degree misdemeanor, the accused person is facing up to a year in jail or a year of probation (or some combination of both). The maximum penalty for domestic related felony offenses can range from five years in prison to life (or perhaps the death penalty depending on the underlying facts and circumstances). As with all felony offenses, the low end of the sentencing range is determined by the sentencing guidelines. If a firearm was used in the commission of the offense, the provisions of Florida's 10-20-Life statute may apply. There may be other enhancements applicable in felony cases as well. An experienced Tampa Bay area criminal defense attorney can provide additional information as to what, if any enhancements, apply in a particular case.
In most domestic related offenses, the accused person will be required to undergo some form of counseling. These counseling sessions can range from eight hours to twenty-six weeks. In most instances, the twenty six week program (at one hour per week) will be required. For many first time offenders, a domestic violence diversion or intervention program may be an option. Under these circumstances, the person is placed on probation for a certain period of time (without entering a plea of guilty or no contest) and is required to undergo family violence or anger management counseling. Other conditions may be imposed as well, including substance abuse counseling or restitution to the victim. If the person successfully completes the requirements of diversion, with no new law violations, his or her charge will be dismissed.
You should also be aware that under Florida law, if a person is adjudicated guilty of a crime of domestic violence and the accused has intentionally caused bodily harm to another person, the court shall order the person to serve a minimum of five days in the county jail as part of the sentence imposed.
There are some restrictions on a person's ability to seal or expunge a domestic violence record depending on how the case was resolved. A qualified Tampa Bay area criminal defense attorney can provide additional details on these limitations. Also, for non-United States citizens, a plea to any domestic violence crime can have serious immigration consequences, including deportation. Non-United States citizens should always consult with an experienced immigration attorney prior to entering a plea in any criminal case, but this is especially so in domestic violence cases.
Hopefully the foregoing has provided some helpful insights into domestic violence laws and procedure in Florida generally and in the Tampa Bay area specifically. More detailed questions should be directed to a criminal defense attorney in your area.
ABOUT THE AUTHOR: Donald J. Kilfin, The Kilfin Law Firm P.C.
Donald J. Kilfin is a former Pinellas county state prosecutor. He owns and operates The Kilfin law Firm, P.C., a Tampa Bay area DUI and criminal defense firm representing clients in the Tampa Bay area.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.