Chris S. Boatright, P.A.

Florida Injunctions For Protection

Five Types

There are five different types of injunctions for protection in Florida.  The five different types of injunctions for protection in Florida are:  Injunction For Protection Against Domestic Violence; Injunction For Protection Against Dating Violence; Injunction For Protection Against Stalking;  Injunction For Protection against Repeat Violence; Injunction For Protection Against Sexual Violence.

Requirements

Each different type of injunction for protection has specific legal requirements that have to be met by the person seeking the injunction for protection.  The specific legal requirements are important because if they are not met the judge should deny the request for the injunction for protection.

Temporary Versus Permanent Injunctions For Protection

When a person seeking an injunction for protection goes to the courthouse to get an injunction for protection a judge reviews the request and decides if there is a legal basis to grant a temporary injunction for protection.  If the judge grants a temporary injunction for protection the temporary injunction for protection will remain in effect until the hearing on the permanent injunction for protection.

Service Of The Temporary Injunction For Protection

The hearing for the permanent injunction for protection is supposed to be within fourteen days  of the granting of the temporary injunction for protection.  This time gives the sheriff’s office time to serve the person who the injunction has been issued against with notice of the temporary injunction which also includes the notice of the date, time and location of the hearing for the permanent injunction.

Hearing For The Permanent Injunction

At the hearing for the permanent injunction for protection the judge will decide if the temporary injunction for protection will be made permanent or will be dismissed.  If the judge decides to make the injunction for protection permanent the judge can also require the person against whom the permanent injunction for protection has been placed to complete counseling.  Some of the types of counseling a judge can require is the batterers’ intervention program, anger management counseling, mental health counseling and drug and alcohol counseling.

The Lawyer

Call 407-740-8300 for a free consultation with a lawyer with 20+ year experience representing individuals both seeking injunctions for protection and defending people against injunctions for protection.

Florida Prostitution, The Prostitution Sting And Florida Statutes

The Prostitution Sting

The Buyers

In Florida the prostitution sting comes in various forms but is most often a female undercover officer working an area which is well known to law enforcement for prostitution.  Unlike in movies an on television the female undercover officer is usually dressed in normal clothing like jean shorts and a tank top not lingerie and thigh high boots.  These types of prostitution sting operations are focused on arresting buyers.  For more information on prostitution, the buyers and Florida law click here:

Florida Prostitution, The Buyer And Florida Statutes

The Sellers

Law enforcement also do prostitution sting operations on prostitutes, the sellers.  These are most often done by having an undercover officer approach suspected prostitutes in an area known to law enforcement for prostitution and ask the prostitute for sex for money.  For more information on prostitution, the sellers and Florida law click here:

Florida Prostitution, The Seller And Florida Statutes

Massage

Prostitution sting operations are also done by sending an undercover male officer into a massage place to solicit the female giving the massage for sex.  For more information on prostitution, the buyers and Florida law click here:

Florida Prostitution, The Buyer And Florida Statutes

Online

Prostitution sting operations are done by an undercover law enforcement officer placing a fake advertisement online for escort services and then meeting the interested individuals a hotel and arresting the buyer or by going online and searching for advertisements and contacting the person and making a deal for sex for money and then meeting the person at a hotel and arresting the seller.  For more information on prostitution, the buyers, the sellers and Florida law click here:

Florida Prostitution, The Buyer And Florida Statutes

Florida Prostitution, The Seller And Florida Statutes

The Lawyer

Call 407-740-8300 for a free consultation with a 20+ year experienced former prostitution prosecutor to find out what can be done to the charge dropped.

Florida Prostitution, The Location And Florida Statutes

The Law

Florida Statute Section 796.07 is the most common statute to arrest and prosecute prostitution offenses in Florida.  Specifically, Florida Statute Section 796.07(2)(g) is the most common statute used as an additional charge to Florida Statute Section 796.07(2)(f) (See Below “Florida Prostitution, The Buyer And Florida Statutes”) to arrest and prosecute sex buyers who go to a hotel, massage place or house to meet the undercover law enforcement officer posing as a prostitute as part of a prostitution sting operation in Florida.  Florida Statute Section 796.07(2)(g) states “it is unlawful to reside in, enter, or remain in, any place, structure, or building, or to enter or remain in any conveyance, for the purpose of prostitution, lewdness, or assignation”.

Florida Statute Section 796.07(1) states:

Female Genitals includes the labia minora, labia majora, clitoris, vulva, hymen, and vagina.

Prostitution means the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

Lewdness means any indecent or obscene act.

Assignation means the making of an appointment or engagement for prostitution or lewdness, or any act in furtherance of such appointment or exchange.

Sexual Activity means oral, anal, or female genital penetration by, or union with, the sexual organ of another; anal or female genital penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for a bona fide medical purpose.

The Punishment

Florida Statute Section 796.07(2)(g) states that a first offense is a second degree misdemeanor, a second offense is a first degree misdemeanor and a third or subsequent offense is a third degree felony.

A second degree misdemeanor is punishable by up to sixty days in jail, up to six months on probation and up to a $500 fine.

A first degree misdemeanor is punishable by up to one year in jail, up to one year on probation and up to a $1,000 fine.

A third degree felony is punishable by up to five years in prison, up to five years on probation and up to a $5,000 fine.

Mandatory Minimums For Florida Statute Section 796.07(2)(g)

Unlike Florida Statute Section 796.07(2)(f), Florida Statute Section 796.07(2)(g) has no mandatory minimum penalties.

The Lawyer

Call 407-740-8300 for a free consultation with a 20+ year experienced former prostitution prosecutor to find out what can be done to get your charge dropped.

Click Below For More Information On Prostitution:

Florida Prostitution, The Buyer And Florida Statutes

Florida Prostitution, The Seller And Florida Statutes

 

Florida Prostitution, The Seller And Florida Statutes

The Law

Florida Statute Section 796.07 is the most common statute to arrest and prosecute prostitution offenses in Florida.  Specifically, Florida Statute Section 796.07(2)(e) is the most common statute used to arrest and prosecute sex sellers in Florida.  Florida Statute Section 796.07(2)(e) states “it is unlawful for a person 18 years of age or older to offer to commit, or to commit, or to engage in prostitution, lewdness, or assignation”.

Florida Statute Section 796.07(1) states:

Prostitution means the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

Lewdness means any indecent or obscene act.

Assignation means the making of an appointment or engagement for prostitution or lewdness, or any act in furtherance of such appointment or exchange.

Sexual Activity means oral, anal, or female genital penetration by, or union with , the sexual organ of another; anal or female genital penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for a bona fide medical purpose.

The Punishment

Florida Statute Section 796.07(2)(e) states that a first offense is a second degree misdemeanor, a second offense is a first degree misdemeanor and a third or subsequent offense is a third degree felony.

A second degree misdemeanor is punishable by up to sixty days in jail, up to six months on probation and up to a $500 fine.

A first degree misdemeanor is punishable by up to one year in jail, up to one year on probation and up to a $1,000 fine.

A third degree felony is punishable by up to five years in prison, up to five years on probation and up to a $5,000 fine.

Mandatory Minimums For Florida Statute Section 796.07(2)(e)

Unlike Florida Statute Section 796.07(2)(f), Florida Statute Section 796.07(2)(e) has no mandatory minimum penalties.

The Lawyer

Call 407-740-8300 for a free consultation with a 20+ year experienced former prostitution prosecutor to find out what can be done to get your charge dropped.

Florida Prostitution, The Buyer And Florida Statutes

The Argument

Florida prostitution laws prohibit many different forms of prostitution related conduct.  See Florida Statute Section 796.07.  The most severe penalties for prostitution are directed at the buyer.  The argument for punishing the buyer more severely than the seller is that if you can eliminate the buyer of sex then the seller of sex will not be able to sell what is no longer wanted, sex.  That is just ridiculous.  Prostitution has been referred as “the world’s oldest profession” for a reason.  Trying to stop prostitution is like trying to stop the wind from blowing it is just not going to happen.  It just leads to another endless war on sin.  Unfortunately, the war against prostitution continues with no end in sight.

The Law

Florida Statute Section 796.07 is the most common statute to arrest and prosecute prostitution offenses in Florida.  Specifically, Florida Statute Section 796.07(2)(f) is the most common statute used to arrest and prosecute sex buyers in Florida.  Florida Statute Section 796.07(2)(f) states “it is unlawful to solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation”.

Florida Statute Section 796.07(1) states:

Prostitution means the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

Lewdness means any indecent or obscene act.

Assignation means the making of an appointment or engagement for prostitution or lewdness, or any act in furtherance of such appointment or exchange.

Sexual Activity means oral, anal, or female genital penetration by, or union with , the sexual organ of another; anal or female genital penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for a bona fide medical purpose.

The Punishment

Florida Statute Section 796.07(2)(f) states that a first offense is a first degree misdemeanor, a second offense is a third degree felony and a third or subsequent offense is a second degree felony.

A first degree misdemeanor is punishable by up to one year in jail, up to one year on probation and up to a $1,000 fine.

A third degree felony is punishable by up to five years in prison, up to five years on probation and up to a $5,000 fine.

A second degree felony is punishable by up to fifteen years in prison, up to fifteen years on probation and up to a $10,000 fine.

Mandatory Minimums For Florida Statute Section 796.07(2)(f)

According to Florida Statute Section 796.07(2)(f) in addition to any other penalty imposed, the court shall order a person convicted of a violation of Florida Statute Section 796.07(2)(f) to:

  • Perform 100 hours of community service; and
  • Pay for and attend an educational program about the negative effects of prostitution and human trafficking, such as a sexual violence prevention program, including such programs offered by faith-based providers, if such programs exist in the judicial circuit in which the offender is sentenced; and
  • In addition to any other penalty imposed, the court shall sentence a person convicted of a second or subsequent violation to a minimum mandatory period of incarceration of ten days; and
  • If a person uses a vehicle in the course of the violation, the judge, upon the person’s conviction, may issue an order of impoundment or immobilization of the vehicle for a period of up to sixty days; and
  • The Soliciting for Prostitution Public Database must include the criminal history record of a person who is found guilty as a result of a trial or who enters a plea of guilty or nolo contendere, regardless of whether adjudication is withheld and there is evidence that such person provided a form of payment or arranged for the payment of such services. Upon conviction, the clerk of the court shall forward the criminal history record of the person to the Florida Department of Law Enforcement for inclusion in the database; and
  • A PERSON SHALL BE ASSESSED A CIVIL PENALTY OF $5,000 IF THE VIOLATION RESULTS IN ANY JUDICIAL DISPOSITION OTHER THAN ACQUITTAL OR DISMISSAL.

The Lawyer

Call 407-740-8300 for a free consultation with a 20+ year experienced former prostitution prosecutor to find out what can be done to get your charge dropped.

Illegal Vehicle Tint Stops Are Legal In Florida

Officers Rarely Stop Vehicles For Just An Illegal Vehicle Tint

Officers do not normally conduct traffic stops on vehicles for just an illegal vehicle tint unless the tint is extremely dark.  An example of an extremely dark tint would be when an officer is not able to see the driver inside the vehicle in the middle of the day.  Most cars in Florida that have an after market tint have an illegal tint.  This is because legal tint in Florida is very light so most people choose a tint that is darker than legal tint because it looks better on the vehicle, especially vehicles with darker paint colors like black.  If an officer wanted to stop vehicles for illegal vehicle tint in Florida the officer could basically do it non stop for the entire shift.  Therefore, if an officer stops a vehicle for illegal vehicle tint that is usually not the only reason for the traffic stop and usually not the primary reason for the traffic stop.

Illegal Vehicle Tint Stops For Suspicious Vehicles

Traffic stops of vehicles for illegal vehicle tint are usually done by an officer on a vehicle that the officer believes is suspicious for some reason.  Traffic stops of vehicles for illegal vehicle tint is a legal reason for an officer to stop a vehicle that is believed to be suspicious for some reason to try and find out if anything illegal is in the vehicle.  Officers stop vehicles for being suspicious because the vehicle is in an area with lots of illegal drug activity, is in an area and at a time with lots of recent burglaries or is driving erratically like driving extremely slowly or slowing down and speeding up often.  Officers are generally more suspicious the later it gets at night or in the early morning hours when most people are sleeping.  That is why many illegal vehicle tint stops occur late at night or in the early morning hours.

Is An Officer Allowed To Use A Flashlight To Look In My Vehicle

Use Of A Flashlight To See Inside A Vehicle Is Not An Illegal Search

If the officer has a legal right to be next to the vehicle then using a flashlight to look inside the vehicle is not a search which would require consent, probable cause or a search warrant.  For instance during a routine traffic stop, or at the scene of an accident or while the vehicle is parked in a public parking lot the officer has a right to look into the vehicle from the outside without it being a search that requires consent, probable cause or a search warrant.  In order to assist the officer in seeing what is inside the vehicle the officer is allowed to use a flashlight without it then being considered a search of the vehicle by the officer which would require consent, probable cause or a search warrant.  The office can not put the flashlight inside the vehicle like through an open window that would be a search requiring consent, probable cause or a search warrant.

Illegal Search If Traffic Stop Is Improperly Extended For A Search

The outside search of your vehicle, however, to be legal must occur within the time necessary for the officer to complete the traffic stop.  The officer can not write a ticket or give the driver a warning instead of a ticket and then detain the driver so the officer can walk around the vehicle and look inside, with or without a flashlight.  If the officer does that it is a seizure which would require probable cause.  If the officer sees something illegal in plain view in the vehicle during that illegal seizure then because the seizure was illegal then the search that occurred during the illegal seizure is illegal and the illegal item or items can be suppressed with a motion to suppress.

If An Officer Walks Around Your Vehicle And Looks Inside The Windows Is That A Search?

Looking Inside A Vehicle From The Outside Is Not A Search

As long as the officer has a legal right to be where the officer is located then walking around the outside of your vehicle and looking inside the windows is not a search.  During a routine traffic stop the officer walking around the vehicle would not be a search.  If the car is parked in a parking lot that is accessible to the public and the officer walks around the vehicle and looks inside the windows that is not a search.  If the officer sees something illegal in the vehicle like drugs, drug paraphernalia or a gun then that will give the officer the required probable cause to legally search the vehicle.

Entry Requires Consent, Probable Cause Or A Warrant

However, if the officer sticks his head inside a rolled down vehicle window or opens a vehicle door to look inside a vehicle that is a search that requires consent, probable cause or a warrant.  Without consent, probable cause or a warrant entering the vehicle makes the search of the vehicle by the officer illegal and any evidence obtained by the officer from that illegal search can be suppressed with a motion to suppress.

Illegal Detention Causes A Illegal Search

If the original traffic stop was illegal then anything obtained as a result of a search from that illegal traffic stop can be suppressed with a motion to suppress.  So if the officer did not have a lawful basis to stop the vehicle the fact that the officer subsequently was given consent by the driver to search the vehicle that does not make the search of the vehicle by the officer legal.  Therefore, any items the vehicle search produced were unlawfully obtained as the result of an illegal stop of the vehicle and the evidence can be suppressed with a motion to suppress.

Does An Officer Need Probable Cause To Request Consent To Search Your Vehicle?

No Probable Cause Necessary For Request To Search Vehicle

An officer can ask anyone for consent to search their vehicle.  An officer only needs probable cause to search your vehicle if you do not consent to the search of your vehicle.  The officer does not have to tell you that you can refuse.  However, an officer cannot treat a lack of response as consent to search.  An officer also cannot obtain lawful consent to search your vehicle by coercing consent by doing things like saying if you do not consent to the search of your vehicle you will be arrested.

No Consent To Search Your Vehicle Creates Suspicion

Refusing to consent to the search of your vehicle is normally going to cause the officer to become more suspicious and the officer will start saying things like what do you have to hide and if you do not have anything illegal in the vehicle then why do you care if I search it.  Officers also say things like if you are honest with me it will be better for you.  All of these statements are just attempts at changing your mind to allow an officer to search your vehicle because they do not have probable cause to search your vehicle.  If the officer did have probable cause to search your vehicle and you refused the officer would just search it anyway.  Refusing the search of your vehicle does not create probable cause which would allow the officer to search the vehicle.

Why Ask For Consent If Probable Cause Already Exists To Search The Vehicle?

So why would an officer ask for consent to search a vehicle if the officer already believes that probable cause exists to search the vehicle?  An officer will ask for consent to search the vehicle because if the officer is wrong about the probable cause belief then the vehicle search is still legal because of your consent to search the vehicle.  Therefore, any illegal items will not be excluded from evidence for an illegal search with a motion to suppress.  Consent to search the vehicle means the officer does not have to risk losing evidence as the result of an illegal search if the officer is wrong about having probable cause to search the vehicle.

Is It Normal For An Officer To Asked For Consent To Search Your Vehicle During A Traffic Stop?

Not Normal

It is not normal for an officer to ask the driver for consent to search the vehicle during a routine traffic stop.  If an officer is asking for consent to search the vehicle it is usually because something has occurred that indicated the presence of illegal items in the car based on the training and experience of the officer.  That can be something as simple as the odor of cannabis coming from the driver and or the vehicle.  It may be drug paraphernalia in plain sight in the center console.  It could be suspicious movements by someone in the vehicle after the vehicle was stopped but prior to the officer approaching the driver.  It may be something like the officer asking the driver where they are going to or coming from and the reason and the answer being evasive or the location of the vehicle not being between those two points.   It also may be that the answers by the driver to the officers’ questions are inconsistent or do not make sense to the officer.  Also, another reason can be if the driver refuses to answer questions from the officer.

Generally Suspicious

It does not take much to cause an officer to wonder if there is something illegal in a vehicle.  Officers are generally suspicious.  If the officer even has the slightest concern that something seems off the officer is going to ask to search the vehicle to see how the driver reacts and if the driver agrees to the search.  If the answer from the driver is no to the vehicle search the officer is going to assume the driver has something illegal in the vehicle and then try to figure out another way to legally search the vehicle to find out if there is something illegal in the vehicle.  Officers generally do not believe that innocent people should refuse consent to a search of their vehicle even though the constitution allows them to do so.  This is the point when officers say something like if you do not have anything to hide why do you care if I search the vehicle.  The answer is because people in this country are not required to submit to police searches without probable cause or a warrant, innocent or not.

Can An Officer Legally Search Your Vehicle Because Your Are Nervous?

Nervous Is Not Enough

A nervous driver is not enough to establish the necessary probable cause for an officer to search the vehicle without consent.  However, if a person is acting overly nervous during a traffic stop an officer will assume that there is something in the car that is illegal.  Officers interact with people on traffic stops routinely and they understand that people are normally nervous during a traffic stop because they are worried about getting a ticket.  However, when a person is overly nervous an officer is normally going to ask for consent to search the vehicle.  If the driver refuses to consent to a vehicle search then the officer is going to walk around the vehicle and look inside to see if anything illegal is in plain view that would give the officer probable cause to search the vehicle.  If a drug dog is available an officer may request a dog to walk around the vehicle to determine if any illegal drugs are present.

Continued Detention Is Illegal Without Probable Cause

The officer must be actively engaged in completing the traffic stop throughout the traffic stop.  An officer cannot question the driver about matters unrelated to the traffic stop or do other things unrelated to the traffic stop to obtain extra time for a drug dog to arrive to walk around the vehicle.  The officer only has as long as is necessary to complete the traffic stop by either writing the driver a ticket or giving the driver a warning to establish probable cause to search the vehicle without consent or to establish probable cause to justify the continued detention of the driver.  Once the purpose for the traffic stop has ended then the officer must have probable cause for the continued detention of the driver.  If the officer does not have probable cause for the continued detention of the driver after the completion of the traffic stop then any illegal items obtained as a result of that illegal detention can be suppressed with a motion to suppress.

What Causes An Officer To Ask To Search Your Vehicle During A Traffic Stop?

The odor of cannabis coming from your vehicle is a major reason for an officer to request to search your vehicle. Cannabis used to be illegal to possess in Florida for everyone so it was easy for an officer to conclude that the odor of cannabis was an indication of illegal activity in the vehicle.  However, now some people have medical cannabis cards issued by Florida that legally allows them to possess cannabis.  Therefore, the odor of cannabis alone is not always an indication of illegal activity in the vehicle.  Now, officers are asking drivers if they have a medical cannabis card.  If the driver says no then it helps the officer establish that the driver may have illegal cannabis in the vehicle and that could establish the probable cause the officer needs to search your vehicle even if you refuse to consent to a search of your vehicle by the officer.  If you consent to a search of your vehicle by the officer then probable cause is not necessary to search your vehicle.

Theft Restitution Cannot Be More Than Maximum Value For The Crime Charged

The defendant entered a plea to a theft of $300 or less charge.  After a restitution hearing the trial court ordered the defendant to pay restitution in the amount of $2,575.93.  The defendant appealed the trial court’s restitution order.  The appeals court ruled that pursuant to sections 775.089(1)(a) and 984.03(1)(e), Florida Statutes (1989), restitution may be ordered only for damage or loss caused directly or indirectly by the defendant’s offense.  The evidence establishes the value of the items defendant was charged with stealing is well in excess of $300, however, because here the convicted offense was theft of items having a value of $300 or less, the maximum value of items for which defendant can be ordered to pay restitution is also $300.

Accordingly, the appeals court quashed the trial court’s restitution order with instructions to limit restitution for the property stolen to $300.  However, because restitution can also include losses caused indirectly by theft, including damage done to the vehicle in effecting the theft of the items and because the appeals court was unable to determine the amount of repair associated with those items, the appeals court remanded the case to the trial court to make that determination and order the corrected amount of restitution.

See Peralta v. State, 596 So.2d 1220 (Fla. 5th DCA 1992)

Driving With A Suspended License Unlawful Stop

The defendant was stopped by a law enforcement officer for the sole purpose of checking the status of his driver’s license.  After the defendant was stopped, the officer obtained the defendants’ driver’s license and discovered it was suspended.  The defendant was arrested and charged with driving with a suspended license.  The defendant moved the trial court to suppress all the evidence from the stop.  The trial court denied the defendant’s motion to suppress.  The defendant appealed and ultimately the Florida Supreme Court ruled that “when, as in the instant case, an officer unlawfully stops the defendant solely to determine whether or she is driving with a suspended license, that the officer’s post-stop observation of the defendant behind the wheel must be suppressed.

See State v. Perkins, 760 S0.2d 85 (Fla. 2000)

Jury Must Make A Separate Finding Of Battery Being Domestic Violence

The defendant was charged with domestic violence battery in violation of sections 784.03(1) and 741.283, Florida Statutes (2018).  Section 741.283 establishes minimum terms of imprisonment for those adjudicated guilty of a crime of domestic violence as defined in section 741.28, Florida Statutes.  The charging document described the victim as a family or household member of the defendant.  The trial court’s instruction to the jury was as follows: “To prove the crime of battery, the State must prove the following element beyond a reasonable doubt: Defendant actually and intentionally touched or struck the victim against her will.  An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.”  The jury found the defendant guilty of battery as charged.  After the verdict and the dismissal of the jury, the trial court found that the battery was a crime of domestic violence.  The defendant filed an appeal.

According to the appeals court a domestic violence designation under section 741.28(2), Florida Statutes (2018) triggers mandatory minimum sentences under section 741.283, Florida Statutes (2018).  In this case, the facts necessary to a “domestic violence” designation are (1) a battery, (2) where the victim is a “family or household member” of the defendant, and (3) the battery resulted in physical injury or death of the victim.  See section 741.28(2), Florida Statutes (2018).  Section 741.283(1)(a), Florida Statutes (2018) describes the mandatory minimum sentences for first, second, and third or subsequent domestic violence offenses and requires that the defendant has “intentionally caused bodily harm to another person”.  Here, the jury was charged only on misdemeanor battery.  It was not asked to make findings regarding bodily harm or injury of the victim or the victim’s status as a family or household member of the defendant.  Therefore, the trial judge was precluded from making the domestic violence finding on her own.

See Bethea v. State, 319 So.3d 666 (Fla. 5th DCA 2021)

No Violation Of Probation If The State Only Proves An Arrest

The defendant was placed on probation.  The State filed an affidavit charging the defendant with a violation of probation for “failing to live and remain at liberty without violating the law”.  At the violation of probation hearing, the defendant testified that he had had contact with law enforcement and that he faxed a copy of the citation he received for driving with a suspended license to his probation officer.  At the time of the violation of probation hearing the driving with a suspended license charge was still pending.  A copy of the citation was submitted into evidence.  When ask if he was driving on the date of the citation the defendant asserted his Fifth Amendment right to remain silent and did not answer.  The defendant’s probation officer testified that the defendant had notified him of the contact with law enforcement, and that he had requested to see the citation to see if it was a criminal or civil citation.   Upon consideration of this evidence the trial court ruled that the defendant was in violation of his probation.  The defendant filed an appeal.

The appeals court ruled the State did not show that the defendant committed any new crime, but instead, simply submitted evidence that the defendant had contact with a law enforcement officer.  It is improper to revoke probation based solely upon proof that the probationer had been arrested.  The State did not show that the elements of the crime of driving while license suspended, revoked, canceled, or disqualified were met.  See section 322.24(2), Florida Statutes (2010). License suspension, knowledge of the license suspension, and actual driving are the requisite elements of the crime of driving while license suspended.  The State did not prove that the defendant’s license was suspended, that the defendant had knowledge of the suspension, or even that the defendant had been driving on the date of the alleged infraction.  The defendant’s admission to having contact with law enforcement and receipt of a traffic infraction were not sufficient to show that the defendant violated any law. Consequently, since the evidence was insufficient to prove that a crime was committed, it was an error for the trial court to find the defendant to have violated probation.

See Prater v. State, 161 So.3d 489 (Fla. 5th DCA 2014)

No Violation Of Probation For Getting A Traffic Ticket Or Citation

The defendant was placed on probation.  The State filed an affidavit charging the defendant with a violation of probation for “failing to live and remain at liberty without violating the law”.  At the violation of probation hearing, the defendant testified that he had had contact with law enforcement and that he faxed a copy of the citation he received for driving with a suspended license to his probation officer.  At the time of the violation of probation hearing the driving with a suspended license charge was still pending.  A copy of the citation was submitted into evidence.  When ask if he was driving on the date of the citation the defendant asserted his Fifth Amendment right to remain silent and did not answer.  The defendant’s probation officer testified that the defendant had notified him of the contact with law enforcement, and that he had requested to see the citation to see if it was a criminal or civil citation.   Upon consideration of this evidence the trial court ruled that the defendant was in violation of his probation.  The defendant filed an appeal.

The appeals court ruled the State did not show that the defendant committed any new crime, but instead, simply submitted evidence that the defendant had contact with a law enforcement officer.  It is improper to revoke probation based solely upon proof that the probationer had been arrested.  The State did not show that the elements of the crime of driving while license suspended, revoked, canceled, or disqualified were met.  See section 322.24(2), Florida Statutes (2010). License suspension, knowledge of the license suspension, and actual driving are the requisite elements of the crime of driving while license suspended.  The State did not prove that the defendant’s license was suspended, that the defendant had knowledge of the suspension, or even that the defendant had been driving on the date of the alleged infraction.  The defendant’s admission to having contact with law enforcement and receipt of a traffic infraction were not sufficient to show that the defendant violated any law. Consequently, since the evidence was insufficient to prove that a crime was committed, it was an error for the trial court to find the defendant to have violated probation.

See Prater v. State, 161 So.3d 489 (Fla. 5th DCA 2014)

No Violation Of Probation For Contact With Law Enforcement

The defendant was placed on probation.  The State filed an affidavit charging the defendant with a violation of probation for “failing to live and remain at liberty without violating the law”.  At the violation of probation hearing, the defendant testified that he had had contact with law enforcement and that he faxed a copy of the citation he received for driving with a suspended license to his probation officer.  At the time of the violation of probation hearing the driving with a suspended license charge was still pending.  A copy of the citation was submitted into evidence.  When ask if he was driving on the date of the citation the defendant asserted his Fifth Amendment right to remain silent and did not answer.  The defendant’s probation officer testified that the defendant had notified him of the contact with law enforcement, and that he had requested to see the citation to see if it was a criminal or civil citation.   Upon consideration of this evidence the trial court ruled that the defendant was in violation of his probation.  The defendant filed an appeal.

The appeals court ruled the State did not show that the defendant committed any new crime, but instead, simply submitted evidence that the defendant had contact with a law enforcement officer.  It is improper to revoke probation based solely upon proof that the probationer had been arrested.  The State did not show that the elements of the crime of driving while license suspended, revoked, canceled, or disqualified were met.  See section 322.24(2), Florida Statutes (2010). License suspension, knowledge of the license suspension, and actual driving are the requisite elements of the crime of driving while license suspended.  The State did not prove that the defendant’s license was suspended, that the defendant had knowledge of the suspension, or even that the defendant had been driving on the date of the alleged infraction.  The defendant’s admission to having contact with law enforcement and receipt of a traffic infraction were not sufficient to show that the defendant violated any law. Consequently, since the evidence was insufficient to prove that a crime was committed, it was an error for the trial court to find the defendant to have violated probation.

See Prater v. State, 161 So.3d 489 (Fla. 5th DCA 2014)

No Violation Of Probation If The Improper Conduct Is Not In The VOP Affidavit

The defendant was placed on probation for drug possession.  The defendant was charged with violating probation for purchasing/possessing pseudoephedrine.  The defendant filed a motion to dismiss the violation of probation because the rules of the defendant’s probation said the defendant could not take any over counter medication containing pseudoephedrine and the violation of probation affidavit alleged that the defendant “purchased/possessed” pseudoephedrine.  The probation rules prohibited the defendant from taking any over the counter medication containing pseudoephedrine but the defendant was charged with violating his probation by purchasing/possessing pseudoephedrine.  Therefore, according to the probation rules the defendant could purchase over the counter medication containing pseudoephedrine and could possess over the counter medication containing pseudoephedrine the defendant just could not “take” any over the counter medication with pseudoephedrine.  The motion to dismiss was denied by the trial court.  After a violation of probation hearing the trial court found the defendant in violation of probation and sentenced the defendant.  The defendant appealed.

The appeals court stated that an affidavit for violation of probation must allege the basic facts concerning the alleged violation such as its nature, time and place of occurrence.  According to the appeals court because the violation of probation affidavit alleged that the defendant “purchased/possessed pseudoephedrine and only “taking” any over the counter medication containing pseudoephedrine was prohibited by the defendant’s probation rules the defendant was improperly found to be in violation of probation by the trial court.  The appeals court stated that the trial court improperly based the violation of probation on a charge that was not alleged in the violation of probation affidavit.

See Little v. State, 143 So.3d 465 (Fla. 5th DCA 2014)

No Violation Of Probation If New Crime Alleged Is Not Proven

The defendant was placed on probation.  The State alleged that the defendant violation his probation by committing a new law violation, loitering and prowling.  After a violation of probation hearing the trial court found the defendant in violation for committing the new law violation of loitering and prowling and sentenced the defendant.  The defendant appealed the trial court’s finding of a violation of probation.

At the violation of probation hearing the State only introduced evidence from the electronic monitoring device that the defendant was wearing that the defendant had been in or near a neighbors yard.  According to section 856.021, Florida Statute (2014) it is loitering and prowling and therefore it is unlawful for “any person to loiter or prowl in a place, at a time or in a manner not usual for law abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity”.  Since the State failed to prove the crime of loitering and prowling at the violation of probation hearing it was unlawful for the trial court to find the defendant violated probation.

See Acevedo v. State, 200 So.3d 196 (Fla. 5th DCA 2016)

Violation Of Probation Sentencing For Additional Offenses

When a defendant is to be sentenced upon a revocation of probation and prior to that revocation of probation the trial court’s jurisdiction over one or more of the originally sentenced offenses has expired, may the offenses over which the trial court no longer has jurisdiction be scored as additional offenses?  According to the Florida Supreme Court “Offenses over which the trial court no longer has jurisdiction cannot be scored as additional offenses during a sentencing proceeding following a violation of probation because they do not fit the definition of “additional offenses” set out in section 921.0021, Florida Statutes (1999).”

See Sanders V. State, 35 So.3d 864 (Fla. 2010)

No Violation Of Probation For Failure To Pay Without Ability And Refusal

The defendant was placed on probation and as a condition of probation ordered to pay restitution. The defendant was ordered to make monthly restitution payments.  A violation of probation affidavit was filed alleging that the defendant failed to make the required monthly restitution payments and was behind in paying cost of supervision as well.  At the violation of probation hearing one probation officer testified the defendant was informed of the terms of his probation, including both the restitution payment obligation and the obligation to pay a monthly cost of supervision.  A second probation office testified that the defendant was behind on both restitution and cost of supervision.  The defense presented no witnesses. The trial court found the defendant in violation of probation and sentenced the defendant.  The defendant appealed the trial court’s violation of probation finding.

 

The Florida Supreme Court found that before a probationer can be imprisoned for failure to pay a monetary obligation such as restitution, the trial court must inquire into a probationer’s ability to pay and make an explicit finding of willfulness based on the greater weight of the evidence.  Further, in all probation revocation proceedings in which the violation alleged is a failure to pay a monetary obligation as a condition of probation, the State must present sufficient evidence of the probationer’s willfulness, which includes evidence on the ability to pay, to support the trial court’s finding of willfulness.  After evidence of willfulness is introduced by the State, the burden may then be properly shifted to the probationer to assert an inability to pay.  However, it is unconstitutional to require the probationer to prove inability to pay by clear and convincing evidence, a burden higher than the burden required of the State to prove the violation of probation.

 

See Del Valle v. State, 80 So.3d 999 (Fla. 2012)

Lack Of Injuries And Domestic Violence Charges

When defending someone against domestic violence charges a lack of injuries on the victim and the presence of injuries on the arrested person is helpful as a sign of false domestic violence allegations. A lack of injuries on the victim in a place where injuries should be easily seen is also a sign of false domestic violence allegations.  Also, injuries in locations where they do not match up with the victims story like injuries to a leg when the victims story is that they were punched in the face is a sign of false domestic violence allegations.  When victims lie about what happened sometimes they forget to match up the injuries or lack of injuries with the lie.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

False Allegations And Domestic Violence Charges

There are many reasons why someone makes a false allegation of domestic violence in Seminole County, Florida.  The most common reason is because they are actually the person who is guilty of domestic violence but they do not want to go to jail so they accuse the other person of domestic violence.  Domestic violence allegations can also be made for revenge like for believing that someone is cheating or because someone owes the other person money.  Another reason is to get an advantage in a pending divorce with child custody issues, child support issues, alimony issues and other monetary issues.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Divorce And Domestic Violence Charges

Divorce is a stressful situation.  People do not get divorced because they are in agreement over things like money and children.  Divorce proceedings can lead to further disagreements about money and child custody issues.  One parent may seek to make a false domestic violence claim in order to gain an advantage in the divorce regarding child support and child custody.  The purpose of this false domestic violence allegation can be to get the other person out of the house, to prevent the other person from seeing his or her children and therefore to get more child support as a result of having full custody of the child or children.  False domestic violence allegations can also be made to justify alimony in divorce proceedings.  Many issues have to be decided in a divorce case and accusing the other side of domestic violence charges can be an improper way to get an advantage in the divorce case.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Defense Of Others For Domestic Violence Charges

In Florida, according to Florida Statute 776.012(1) a person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.  A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

In Florida, according to Florida Statute 776.012(2) a person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or bodily harm to himself or herself or another or to prevent the imminent commission of a forceable felony.  A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Self Defense For Domestic Violence Charges

In Florida, according to Florida Statute 776.012(1) a person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.  A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

In Florida, according to Florida Statute 776.012(2) a person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or bodily harm to himself or herself or another or to prevent the imminent commission of a forceable felony.  A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

The Victim Does Not Want To Press Charges But The State Of Florida Files The Charges Anyway

The State of Florida files domestic violence charges many times when the victim does not want domestic violence charges filed against the arrested person.  Just because the State of Florida files domestic violence charges does not mean they are going to get a conviction.  It is easier to file domestic violence charges than it is to prove those domestic violence charges with evidence beyond and to the exclusion of any reasonable doubt.  There are many defenses to domestic violence charges.  A conviction for domestic violence charges may negatively affect the rest of the life of a person.  If someone is charged with domestic violence charges they need an experienced domestic violence defense lawyer defending them.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Do I Need A Lawyer In A Domestic Violence Case

Many people believe that since the victim does not want to prosecute that the charges will be dropped so why waste money on a lawyer.  The victim does not get to decide if the State of Florida files charges or not.  I have represented many people who did not hire a lawyer prior to domestic violence charges being filed and then called me after the domestic violence charges were filed.  Unfortunately, once domestic violence charges have been filed they can not be unfiled.  It is better to have domestic violence charges not filed by the State of Florida against you then it is to have charges filed by the State of Florida against you and dropped later.  Ask yourself this simple question “Do I have a better chance of domestic violence charges not being filed against me by the State of Florida if I have an experienced domestic violence defense lawyer?”  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

When To Hire A Domestic Violence Defense Lawyer

I am often ask when is the best time to hire a lawyer when someone has been arrested for domestic violence charges in Florida.  IMMEDIATELY.  When a person is arrested in Florida for domestic violence charges they are taken to jail and held with no bond until they see a judge at an initial appearance hearing.  At the initial appearance hearing the judge will determine what the amount of the bond will be and what the conditions of release on that bond will be.  Having an experienced domestic violence defense lawyer present at the initial appearance hearing can have an affect on the amount of the bond and if the person is going to be allowed to have contact with the victim and go home.  If the judge orders no contact with the victim and no return to the residence of the victim at the initial appearance hearing it will be at least a week and normally longer before a lawyer can get a hearing to ask for those conditions of release to be modified.  If an experienced domestic violence defense lawyer and the victim are present at the initial appearance hearing then the arrested person has a much better chance of being able to have contact with the victim and to return to the residence with the victim if that is what the victim wants.  The State of Florida is going to have a lawyer there against the arrested person so the arrested person better have one there for them.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Victim Letter To The Judge Requesting A Modification Of Bond Conditions

Once set by the court at the initial appearance hearing the bond conditions in the case like no contact with the victim and no return to the residence of the victim will remain in place for the length of the case not just until the next court date.  Cases in the criminal justice system can take months and sometimes years to resolve.  The victim sending a letter to the judge requesting that the arrested person be allowed to have contact with the victim and return to the residence of the victim is a waste of time because it is not the proper procedure for modifying bond conditions.  No changes to the bond conditions as a result of that letter will occur.  The criminal justice system has rules and you have to follow the rules or no changes to the bond conditions will be made.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Victim Letter To The Prosecutor Requesting A Modification Of Bond Conditions

Once set by the court at initial appearance the bond conditions in the case like no contact with the victim, no return to the residence of the victim will remain in place for the length of the case not just until the next court date.  Cases in the criminal justice system can take months and sometimes years to resolve.  The victim sending a letter to the prosecutor requesting that the arrested person be allowed to have contact with the victim and return to the residence of the victim is a waste of time because it is not the proper procedure for modifying bond conditions.  No changes to the bond conditions as a result of that letter will occur.  Prosecutors normally do not even respond to letters from the victim requesting modifications of bond conditions like no contact with the victim and no return to the residence of the victim.  If you call the prosecutor and ask for it to be done you will normally be told that prosecutors do not do that and that the lawyer for the arrested person does that.  The criminal justice system has rules and you have to follow the rules or no changes to the bond conditions will be made.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Sentencing For Domestic Violence Charges

Florida law requires that if a person is adjudicated guilty of a crime of domestic violence and the person has intentionally caused bodily harm to another person, the court shall order that person to serve a minimum of 10 days in jail in the county jail or state prison for a first offense, 15 days for a second offense, and 20 days for a third or subsequent offense as part of the sentence imposed.

Florida law also requires that if a person is found guilty of a crime of domestic violence that person shall be ordered by the court to a minimum term of 1 year of probation.  The imposition of probation by the court does not preclude the court from imposing any sentence of imprisonment allowed.

Florida law in addition requires that if a person is found guilty of a crime of domestic violence that the person be required to attend and complete, at the persons expense, a batterers intervention program (which shall be at least 29 weeks in length and include 24 weekly sessions, plus appropriate intake, assessment and orientation programming) as a condition of the mandatory 1 year of probation.

In addition to the above-mentioned mandatory minimums in a domestic violence case the judge can impose up to the maximum period of jail or prison for the charge or charges and up to the maximum period of probation for the charge or charges.  Also the judge can require additional sanctions like community service, a substance abuse evaluation and any recommended treatment, random drug testing, a mental health evaluation and any recommended treatment, cost of investigation, cost of prosecution and court costs.

If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Conviction For Domestic Violence Charges

If at the end of the trial the jury finds you guilty of a domestic violence charge or charges in Florida then the judge will decide what an appropriate sentence is.  This decision is based on many factors including the evidence at the trial and any prior criminal history.  The judge will listen to arguments from the prosecutor.  If the victim wants to be heard prior to sentencing the judge will listen to testimony from the victim regarding what the victim thinks the sentence should be.  The judge will also listen to arguments from the defendant’s lawyer and testimony from the defendant and any other witnesses and evidence the defendant wants to present that is relevant to determining an appropriate sentence in the case.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Trials For Domestic Violence Charges

Most domestic violence cases in Florida do not end up being a trial, however, when a case is going to be a trial it is important to be properly prepared if you want to win.  Representation by an experienced domestic violence defense lawyer can give a person a better chance of winning in a domestic violence case.  Most people have seen some version of a trial on television or in a movie so most people have some idea of what a trial is like in a domestic violence case.  In a trial for domestic violence charges the State of Florida has the burden to prove a person guilty beyond and to the exclusion of every reasonable doubt.  Florida law does not require the victim be injured or even touched for a person to be convicted of some domestic violence charges.  Florida law also does not require actual physical evidence like videos or pictures.  Verbal testimony as to a crime by the victim is enough for a conviction for a domestic violence charge or charges.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Jury Selection For Domestic Violence Charges

A domestic violence trial in Florida begins with jury selection.  A group of potential jurors is brought into the courtroom and each side has an opportunity to ask potential jurors questions to determine if a person is someone that one side wants to be on the jury to decide the case.  This is called voir dire.  Each side has what is called challenges which allows them to exclude a person from being on the jury to decide the case.  There are two types of challenges, challenges for cause and peremptory challenges.  Challenges for cause can be used for many reasons but are normally used because the person is not able to be fair and impartial as a juror in the case. Challenges for cause are unlimited for both sides.  Peremptory challenges can be exercised by each side for any reason as long as the reason is race neutral.  Peremptory challenges are limited in number for both sides, but the same number for each side.  An example of a challenge for cause would be because the potential juror is a friend of one of the law enforcement officers who is going to testify in the case.  An example of a peremptory challenge in a case is because the person has a family member who was a victim of domestic violence and has donated money to a domestic violence shelter in a case where the case involves domestic violence charges.  This potential juror may be able to be struck for cause for not being able to be fair and impartial in the case but if not this is the type of juror a defendant would want to use a peremptory challenge on to exclude them from being a juror in the trial. Jury selection is a very important part of a trial in a domestic violence case.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Pretrial Conference For Domestic Violence Charges

In a domestic violence case in Florida the next court appearance after the arraignment hearing is a pretrial conference hearing.  The pretrial conference hearing is the opportunity for the judge to find out what the status of the domestic violence case is.  The judge wants to know if a plea agreement has been reached or if the case needs to be set for trial.  If a plea agreement has been reached then sometimes the judge will do the plea and sentencing right then and sometimes the judge will require the plea and sentence be set for a future date.  If the case is going to be set for trial the judge is going to want to know information about the trial.  The judge is going to want to know how many prospective jurors will be needed for jury selection, how many days the trial is expected to last, how many witnesses each side intends on calling to testify, if there are any pretrial motions that need to be resolved before the jury selection and any other matters that either side needs to address before the trial.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Domestic Violence Charges Arraignment

In a domestic violence case in Florida the next court appearance after the initial appearance hearing is the arraignment hearing.  Arraignment is the arrested person’s opportunity to answer to the domestic violence charges.  The options are not guilty, guilty and nolo contendere (no contest).  If you plead not guilty to domestic violence charges the judge will set your case for a future court date to discuss your case and the judge will normally ask you if you are going to hire a lawyer to represent you in the case.  If you plead guilty or nolo contendere (no contest) to domestic violence charges the judge will ask the prosecutor what the State of Florida is recommending as a sentence in the case and the judge will ask you if you have anything to say prior to sentencing.  If the judge gives you a jail or prison sentence you will normally be placed in custody right then.  You will leave the courtroom in handcuffs to start serving the jail or prison sentence.  Most people who go to arraignment do not plan on going to jail or prison right then but if you plead guilty or nolo contendere (no contest) at arraignment and the judge accepts the plea and then imposes a jail or prison sentence in your case you cannot then say no I changed my mind I do not want to go to jail or prison it is to late.  This is one of many reasons why people hire lawyers.  If you are being represented by a lawyer normally before you enter a plea of guilty or nolo contendere (no contest) a sentence agreement will have been reached with the prosecutor as a result of plea negotiations.  While the judge needs to also agree to this negotiated sentence for it to be your sentence in the case you will have an idea of what the sentence in your case will be instead of not knowing and not being able to change your plea to not guilty if the judge sentences you to jail or prison.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Modifications Of Conditions Of Release For Domestic Violence Charges

There is a proper procedure for having a hearing to request the court to modify conditions of release for domestic violence charges in Florida.  If you would like to have a hearing to request that your conditions of release be modified then a proper motion must be filed detailing your specific request with the clerk of court and a copy of that motion must be sent to the prosecutor, you must get proposed hearing time from the judicial assistant, you have to coordinate that hearing time with the prosecutor, then you have to confirm the agreed upon hearing time with the judicial assistant and then you have to file a notice of hearing and serve it on the prosecutor and depending on the judicial assistant also provided a courtesy copy of the motion and notice of hearing to the judicial assistant.  This is an involved process which is why many people hire lawyers experienced in handling motions to modify conditions of release in domestic violence cases.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Domestic Violence Release Conditions

When a court in Florida sets the conditions of release at the initial appearance hearing these conditions of release will exist until the case is over not just until the next court date which is usually the arraignment hearing.  Many people arrested for a domestic violence charge or charges believe that they can get the no contact with the victim and no return to the residence of the victim conditions of release modified at the arraignment hearing.

The judge for the arraignment hearing is not going to stop in the middle of the arraignments and discuss with the arrested person why the conditions of release in the case should be modified.  The case is not the only case set for an arraignment hearing on that date so the judge normally has many cases to do arraignments for and does have time to stop and deal with release condition modifications in a particular case.  Also, the victim is normally not present at the arraignment hearing for the judge to take testimony to determine what conditions of release the victim feels are necessary for their protection.

Judges do not discuss release conditions at arraignment hearings and if a defendant tries to do that the judge will instruct the defendant that the arraignment hearing is not the correct hearing to discuss a modification of release conditions.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Domestic Violence Initial Appearance Hearing

Initial appearance is the first court hearing after a person is arrested for a domestic violence charge or charges in Florida.  The purpose of the initial appearance hearing is for the court to determine if probable cause exist to justify an arrest for a domestic violence charge or charges, if the arrested person should be given a bond and if so what the bond amount will be and what the conditions of release will be.

To make these determinations the judge normally wants information from the victim on what the conditions of release should be to protect the victim from the arrested person.  The judge normally either gets this information from in person testimony from the victim at the initial appearance hearing or from the prosecutor at the initial appearance hearing who has already called the victim before the initial appearance hearing and discussed with the victim the conditions of release needed to protect the victim from the arrested person.

If the victim is not present at the initial appearance hearing and the prosecutor has not been able to speak to the victim by phone prior to the initial appearance hearing then the judge will normally order the conditions of release to be no contact with the victim and no return to the residence of the victim.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Mandatory Batterers Intervention Program

If a person is found guilty of, has adjudication withheld on, or pleads nolo contendere to a crime of domestic violence in Florida that person in addition to being ordered by the court to a minimum term of 1 year of probation it shall be ordered by the court that the defendant attend and complete a batterers intervention program as a condition of probation.

A batterers intervention program must meet the following requirements:

(1)The primary purpose of the program shall be victim safety and safety of children, if present.

(2)The batterer shall be held accountable for acts of domestic violence.

(3)The program shall be at least 29 weeks in length and include 24 weekly sessions, plus appropriate intake, assessment, and orientation.

(4)The program content shall be based on a cognitive behavioral therapy model or psychoeducational model that addresses tactics of power and control by one person over another.

(5)The program shall be funded by user fees paid by the batterers who attend the program, which allows them to take full responsibility for their acts of violence.  An exception shall be made for local, state, or federal programs that fund batterers intervention programs in whole or in part.

 

If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Mandatory Probation For Domestic Violence Charges

If a person is found guilty of, has adjudication withheld on, or pleads nolo contendere to a crime of domestic violence in Florida that person shall be ordered by the court to a minimum term of 1 year probation.  The imposition of probation by the court does not preclude the court from imposing any sentence of imprisonment allowed.  So as an example for a first degree misdemeanor sentence, which is punishable by a maximum of 1 year in jail, 1 year on probation and a $1,000.00 fine the judge could sentence you to 30 days in jail, 1 year of probation, $500.00 fine, Batterer’s Intervention Program(which shall be at least 29 weeks in length and include 24 weekly sessions, plus appropriate intake, assessment and orientation programming), community service, cost of investigation, cost of prosecution and court costs.  The judge can also impose other special conditions of your probation like no contact with the victim and no return to your residence during the required 1 year of probation.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Mandatory Jail For Domestic Violence Charges

In Florida the law requires that if a person is adjudicated guilty of a crime of domestic violence and the person has intentionally caused bodily harm to another person, the court shall order that person to serve a minimum of 10 days in jail in the county jail or state prison for a first offense, 15 days for a second offense, and 20 days for a third or subsequent offense as part of the sentence imposed.  These jail or prison sentences are mandatory minimums so that means the judge can not sentence you to less but can sentence you to more up to the maximum jail of prison sentence for the domestic violence charge or charges.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

The Independent Witness In A Domestic Violence Case

The “independent witness” in a domestic violence case in Florida is usually not independent.  To be considered an independent witness the person should not know any of the parties involved in the domestic violence incident and not have any reason to favor one person involved in the incident over another.  The independent witness in a domestic violence incident is usually a third party who is a friend or family member of one of the people involved in the incident.  If you think about it this makes perfect sense because most domestic violence incidents occur inside a home.  Why would a stranger who does not know either person involved the domestic violence incident be inside their home at the time of the incident?  An actual independent witness to a domestic violence incident is rare.  Unfortunately, law enforcement officers talk to these not independent witnesses that the officers call independent witnesses all the time and often times rely heavily on them to determine which party to believe about what happened in the domestic violence incident and, consequently who is going to jail for a domestic violence charge or charges.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Domestic Violence Silence Causes An Arrest

When officers in Florida arrive at a domestic violence 911 call they separate the parties and try to figure out what happened.  Most people have heard some version of the Miranda rights on television.

Miranda rights:

You have the right to remain silent.

Anything you say can and will be used against you in a court of law.

You have the right to an attorney.

If you can not afford an attorney one will be provided for you.

Do you understand the rights I have just read to you?

With these rights in mind do you wish to speak to me?

The reality is if you refuse to speak to the officers and the other party does speak to them and says you committed a crime you are going to jail.  Officers view silence as guilt.  “If you did not do anything wrong, then what do you have to hide” is what officers say.  According to officers someone refusing to cooperate with them must be because they are guilty of something. So maybe that first sentence of the Miranda rights should say, “You have the right to remain silent but that silence will be held against you when we are deciding who to arrest”.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Domestic Violence Primary Aggressor

When officers arrive to a domestic violence 911 call in Florida they usually separate the two people involved in the incident to try to determine who was the “primary aggressor”.  The primary aggressor is the person who is getting arrested for domestic violence.  Unfortunately, the investigation is usually short and not very detailed and ends up being the officers guess at who hit who first.  This is where it helps to be nice with the officers because based on my experience the person that is less cooperative with the officers or hostile towards the officers is going to be labeled the primary aggressor and arrested.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Domestic Violence Child Abuse Charges If Children Are Present

Officers in Florida can charge parents with domestic violence child abuse if your children are present during a domestic violence incident.  The domestic violence child abuse charge or charges are in addition to any other domestic violence charges from the incident.  The theory is that witnessing domestic violence by one or both of your parents harms the child’s mental health and, therefore, that harm constitutes domestic violence child abuse.  Unlike domestic violence battery, which is normally a misdemeanor, domestic violence child abuse is a felony.  Additionally, the Florida Department of Children and Families is going to get notified by the officers of the incident and they will conduct an investigation to determine what they believe needs to be done to protect the children.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Domestic Violence With Children Present

When the police are called for a domestic violence incident in Florida someone is usually going to get arrested. Even if both people involved are determined by officers to have committed an act or acts of domestic violence only one will be arrested.  If children are present officers are usually not interested in waiting around for the Florida Department of Children and Families to arrive and take custody of the child or children.  Normally, the “primary aggressor”, a term I repeatedly see used in police reports by officers, will get arrested and taken to jail and the officers will leave the other person with the child or children.  The “primary aggressor” is whoever the officers think committed the first act of domestic violence in the incident.  The arresting officer will normally request the prosecutor to file charges also against the person who was not arrested if the arresting officer determines that person also committed an act or acts of domestic violence.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.

Domestic Violence Victim Or Domestic Violence Defendant, Or Both

Sometimes when law enforcement officers in Florida show up for a domestic violence 911 call and they determine both people committed an act or acts of domestic violence they arrest both people for domestic violence charges.  This however is not normal. Officers are actually discouraged from arresting both people involved because it makes the case harder for the prosecutor to get a conviction for either defendant.  That is why officers will normally try to determine who struck first and then label that person as the “primary aggressor” and arrest that person only.  The arresting officer will normally request the prosecutor to also file criminal charges against the other person who was not arrested.  So both people end up with a criminal charge or charges from the police, one just does not have to go through the unpleasant experience of being arrested.  If you would like to discuss how I can help, the consultation is free.  Please call me at 407-740-8300, text me at 407-616-8808 or email me at chris@theorlandodefenselawyer.com.