Charged with domestic violence or domestic assault in Florida? Florida takes a harsh stance against alleged domestic violence aggressors. Getting convicted of felony or misdemeanor domestic violence crime can be a tremendous blow – not only are you facing jail time and steep fines, you’re often doing so without the support of your spouse, children, and other close family members. Call now to schedule a free consultation with a domestic violence defense attorney. Thomas Grajek, Attorney at Law represents clients facing allegations of domestic abuse and assault in Lakeland and Tampa, Florida.
A domestic assault can be a misdemeanor or a felony. It is a more serious felony if there are aggravating circumstances such as causing great bodily harm, using a firearm or deadly weapon, strangulation, stalking in violation of an injunction, or if the alleged victim is pregnant. Even if you’ve been wrongly accused and you are innocent, you need a defense lawyer for domestic violence charges. Call Thomas Grajek today to schedule a free consultation regarding your case.
Florida Domestic Violence Laws
Because domestic violence and family violence can take a number of forms, the laws prohibiting domestic violence related behaviors are purposely written in a very broad manner to encompass as many types of abuse and assault as possible.
This section of Florida criminal statutes defines domestic violence as:
“assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.”
This catch-all provision means that even an accidental car accident in which a family member sustains injuries could result in a domestic violence charge. However, a domestic violence charge can be made legally for a simple threat, even when no physical contact occurs.
What is the Difference Between Domestic Violence and Domestic Battery?
Domestic violence and domestic battery are used interchangeably in the Florida Court system. However, domestic battery is usually reserved for instances of actual physical violence, where the victim sustained lasting or serious injuries.
Who Counts as Family or Household Members Regarding Florida Criminal Law?
Violence against anyone that falls into the following categories can be prosecuted as domestic violence under Florida Law.
- Spouse, Partner, or Significant Other
- Ex-Husbands, Ex-Wives, or Ex-Partners
- Other Parent of Your Child
- Anyone Blood Relatives Like Cousins, Aunts, Uncles, Brothers, Sisters
- People Living Under One Roof as a Family or Who Have Lived Together as Such Before
Domestic violence charges can be classified as either a misdemeanor or a felony, and this classification can often turn on the extent of any physical injuries to the alleged victim.
- Misdemeanor Domestic Violence. Misdemeanor charges include domestic assault or battery resulting in minor physical injuries (or no physical injuries at all), as well as other non-injuring abusive conduct. This may include things like breaking furniture, making verbal threats of violence, or threatening to reveal embarrassing personal information about the victim to the public.
- Felony Domestic Violence. Felony charges include aggravated assault or battery, aggravated sexual assault or battery, aggravated stalking, kidnapping, or any other criminal activity resulting in serious injury or death to a victim who also qualifies as a family member.
Someone charged with domestic violence that has priors, or a previous arrest or conviction record, may find that what would normally be a misdemeanor charge can be “enhanced” to a felony domestic violence.
Domestic Violence Injunctions
Florida trial courts can file injunctions against those accused of domestic violence even before the case goes to trial.
An alleged domestic violence victim may file a petition for a protective injunction even prior to the filing of criminal charges. If the alleged victim issues an emergency injunction, the court is able to issue a protective order ex parte (without requiring the court to provide notice to the defendant prior to the issuance of the order) and set the matter for later hearing. At this hearing, the defendant will then be able to present evidence in his or her defense or argue why the protective order is unnecessary.
Minor violations of a protective order for domestic violence is charged separately as a first degree misdemeanor, carrying with it a potential 1-year term of incarceration.
Does a Domestic Violence charge affect child custody?
If a protective order is issued against someone charged with domestic assault or violence, you may find your child visitation privileges temporarily suspended. If you’re alleged to have committed violence against a family member and currently have primary custody of your children, the trial court may be able to modify custody on a temporary or emergency basis until the DV case has resolved.
Can a DV charge impact your ability carry a firearm?
Yes. Because of the increased risk of serious violence when firearms are present in a home where DV is alleged to have taken place, trial courts are permitted to require defendants to relinquish any firearms in their possession in conjunction with the issuance of a protective order. These firearms may be returned upon the dismissal of the case or at the end of any period of incarceration or probation. Some exceptions exist for law enforcement officers and other professionals who may be required to carry a firearm as part of their job functions.
What is a waiver of prosecution?
A waiver of prosecution is a form that can be signed and filed by the alleged victim indicating that he or she does not want to participate in the prosecution of the DV case. Although this form does not prevent the prosecutor’s office from continuing to investigate and press charges if deemed necessary, it does signify the victim’s relative unwillingness to cooperate and can provide an indication that the prosecutor’s enforcement efforts might be better spent elsewhere.
On the other hand, being alleged to have coerced the victim into filing a waiver of prosecution can land you in hot water all over again, so it’s important to ensure that any waiver is made in a completely voluntary on the victim’s part.
Penalties for First Time Domestic Violence Conviction in Florida
A first time domestic violence conviction require the convicted to serve a minimum of 5 days in the county jail unless a much lengthier prison sentence is imposed. This 5-day sentence is in addition to any probation, community service, or additional incarceration the court may order pursuant to the misdemeanor and felony sentencing guidelines.
If a person is found guilty of (or pleads guilty to) domestic violence, the trial court must sentence the defendant to a mandatory minimum term of one year’s probation; during this probation, the defendant must attend a batterer’s intervention program. Unless there is a legitimate reason stated on the record, why the defendant should not or cannot participate in a batterer’s intervention program, the judge has little discretion to waive this requirement. This sentence is in addition to any other jail or prison sentence that may be imposed upon conviction.
In addition to these sentencing requirements for a domestic violence crime, those convicted of misdemeanor domestic violence may face a potential prison sentence of 1 year.
Penalties for Repeat or Felony Domestic Assault & Family Violence Crimes
Anyone convicted of a repeat, second or third-degree felony domestic violence charge will serve 5 to 15 years in prison. Individuals whose deliberate actions led to the death of the victim will be charged with a capital or first degree felony, resulting in a minimum prison sentence of 30 years and a maximum sentence of life in prison.
If you’re charged with domestic violence against a family member, there are a few potential defenses that may be available to you.
If there is irrefutable evidence that you are guilty but you have no prior criminal history and demonstrate remorse for your actions, you may qualify for a deferred prosecution program that allows you to seek counseling and other assistance in exchange for the ultimate dismissal of charges against you.
Alternatively, you may be able to attack the state’s case against you on a number of bases. In many cases, errors made during the investigation of the alleged incident may mean certain evidence is not admissible, making it harder for the prosecution to prove that you knowingly or purposely committed harm toward a family member. For example, statements made by the alleged victim immediately following the incident may be deemed “excited utterances” not subject to the hearsay rules, but the same statements made during a police interview later that week are almost certainly inadmissible hearsay.
Common Domestic Violence Charge Questions
ANSWERED BY ATTORNEY THOMAS GRAJEK
If I plead no contest or guilty to domestic violence in Florida, can I seal my criminal record?
NO! If you plea Guilty or No Contest to a Domestic Violence charge, you CAN NOT seal or expunge your Domestic Violence arrest! It will be on your criminal record permanently. Call me today before you go to court alone so that I can fight for you and keep you eligible to expunge your arrest!
Even if you go to trial and are found not guilty by a jury of your peers, you can not seal or expunge your domestic assault arrest. The public and future employers will know about your domestic violence arrest. In order to expunge a domestic violence arrest, charges must be dropped against you. It is very important to have an experienced domestic violence lawyer that will fight these charges aggressively trying to get them dismissed to protect your reputation and criminal record.
How long do I have to stay in jail after an assault domestic violence arrest?
Anyone arrested for a domestic assault must be held in custody without a bond until they are brought before the court for first appearance or preliminary presentation. If the court orders that as a condition of your bond you are not allowed to have contact with the alleged victim, I can file a bond motion requesting the court to remove or modify that condition of the bond.
What happens if I violate a no contact injunction of my bond after a domestic violence or domestic assault arrest?
If you are ordered to not have contact and violate that condition of your bond, you can have your bond revoked and be held in custody (jail) until your case is resolved. Do not end up back in jail call now for more information about filing a Bond Motion on your behalf.
What if the alleged victim does not want to press charges or prosecute?
Even if the alleged victim signs a Waiver of Prosecution, the State Attorney (prosecutor) may still file charges against you and prosecute you for domestic assault.
As your defense attorney, I can contact the prosecutor and explain that the person does not want to press charges and the circumstances and reasons why the prosecutor should not prosecute or file charges against you. Many times I can prevent criminal charges from being filed against you. Often, in Polk and Hillsborough County, Florida cases, the prosecutor requires the alleged victim to take a special class for victims of domestic abuse.
Also, many people tell me their spouse or significant other did not have any injuries or marks on them. That there is no other proof other than the spouse or significant other’s word. Unfortunately, that is all the prosecutor needs to file charges against you. Let me fight for justice for you.
Is there an alternative diversion program where I can receive counseling?
Yes, many times I can negotiate for you to be placed into a Diversion program instead of entering a plea to the DV charge. As long as you complete the Diversion program, which usually requires counseling, the charges will be dropped/dismissed against you and you will be able to expunge your record. These classes can be anywhere from 1 day to 26 weeks depending on your individual case.
What type of domestic violence cases do you handle?
I handle all domestic assault cases, whether they are felony or misdemeanor charges. I also defend against injunctions and handle violation of injunction cases. If there is an injunction against you, you may not possess a firearm and can be arrested and prosecuted if the petitioner of an injunction alleges you violated the terms of the injunction. Protect yourself and call for help from an attorney with experience in Domestic Violence and Injunction cases.
Each domestic assault and domestic violence case is different and unique based upon the individual facts of your case. Call now to set up your free consultation so I can answer these and other questions you may have regarding your case.
Free Consultation with a Defense Attorney in Tampa, Florida
Call now to speak with a lawyer with experience defending domestic assault and domestic violence charges in Tampa, Florida and the greater Hillsborough County area.
Lakeland, FL (863) 838-5549
Tampa, FL (813) 789-6404