State charges relating to domestic violence can be very serious depending on the circumstances. First of all in the eyes of the law in many states including Florida domestic violence is not really classified as a crime. It merely describes a relationship between the parties. Florida Statutes Section 741.28 defines what domestic violence is:
(1) “Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking or any criminal offense resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit.
(2) “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who have a child in common regardless of whether they have been married or have resided together at any time.
In recent years, the legislature has made it more convenient to make an arrest which involves Domestic Violence. Florida Statues Section 901.15 describes when arrest by officer without warrant is lawful. Police officers are often protected by statute for false arrest in a domestic violence case in many circumstances as in the case where:
(7)(a) There is probable cause to believe that the person has committed an act of domestic violence, child abuse or any battery upon another person and the law enforcement officer reasonably believes that there is danger of violence unless the person alleged to have committed the act of domestic violence, child abuse or battery is arrested without delay. You have the right to remain silent when the police respond to the incident location. Any statement that you make to the police can be used against you in a court of law.
Can Charges Be Dropped?
Domestic violence is totally unlike any other crime. It always involves someone who falls within the above definition of “family member”. Statistics indicate before any person who is the victim of Domestic Violence calls the police, the incident involving violence has already occurred approximately 8-10 times. Thus, because the alleged victim in the present case has not prosecuted in the past, the arrested person believes that the victim will not prosecute the case and will drop charges. While in many states that is the case, in Broward and Dade County, Florida, the victim cannot drop the charges. The victim can fill out a waiver of prosecution, but ultimately the State Attorney’s office makes the final decision on filing charges.
Your first appearance in court will be a magistrate proceeding. At this hearing, the Judge will review the probable cause affidavit, known as the police report, and make a determination of whether there was probable cause to arrest you. If the Judge finds probable cause exists, a bond will be set for you. Sometimes the Judge will order special conditions of bond, which often times includes, but is not limited to, counseling and/or no contact with the victim. If the Judge finds that there was no probable cause to arrest you, the Judge may release you or allow the arresting officer to amend the probable cause affidavit.
Arraignment is the hearing when you enter one of three pleas: Guilty, Nolo Contendre (no contest), or Not Guilty. Guilty means that you admit to the charges. Nolo Contendre means that you wish to resolve your case without admitting or denying the charges. Not guilty means that you deny the charges and wish to have a trial in your case. You can change your plea of Not Guilty to guilty or Nolo Contendre later if you decide that going to trial may not be in your best interest or get a plea bargain that is in your best interest.
What To Do If You Are Arrested
Do not talk to anyone. Contact our office immediately. You have the right to an attorney to represent you in a criminal action. There are many services we can provide to you immediately upon arrest. If the bond is too high, motions can be filed to reduce the bond. Under some circumstances, depending on the crime charges, you may have to have a hearing to set a bond. Additionally, we can begin to investigate the charges and be in contact with the State Attorney’s Office prior to any filing decision. All too often, important and essential facts which can only be determined immediately from the scene or within a few days after an arrest are lost due to the failure to obtain educated and experienced professionals who can conduct an investigation. Our legal staff can also suggest to an arrested person the type actions necessary to properly defend against the allegations. Many times our attorneys will agree to the retention of their services with a reasonable retainer fee up and payments pursuant to a pre approved payment plan for services rendered.
In Florida, almost all criminal actions are guaranteed a right to a trial by a jury of one’s peers drawn from the community. The jury is made up of six persons, and twelve persons if there is a capital case, actually decides all factual disputes of the case, and the judge is restricted to providing the law of how to decide disputes. In a trial, the rules of evidence are employed to narrow the facts introduced to the jury to the relevant and essential issues. While the attorneys are entitled in their opening and closing statements to address the jury, the majority of time in a trial is spent on the introduction of evidence through witnesses and review by the jury of testimony, photographs, documents or objects. The jury, after hearing the evidence and argument of each respective party’s counsel, then deliberates in secrecy until unanimously deciding their decision to be written upon the verdict. However, upon the State Attorney’s certification of no adjudication or jail time and the defendant’s agreement, a jury trial may be waived and the factual issues in the case can be heard by the judge who acts as judge and jury.
Because an arrest for an incident involving Domestic Violence is classified for sentencing purposes as a crime it is understood that each level of offense has statutory penalties. Generally, the following level of offenses have the maximum sentences: Second Degree misdemeanors are punishable by up to 60 days in jail and a $500.00 fine; First Degree misdemeanors are punishable by 364 days in county jail and a $1,000.00 fine; Third Degree Felonies are punishable by a term of imprisonment not exceeding 5 years, and a $5,000.00 fine; Second Degree Felonies are punishable by a term of imprisonment not exceeding 15 years, and a $10,000.00 fine; First Degree Felonies are punishable by a term of imprisonment not exceeding 30 years, and a $10,000.00 fine; and First Degree Felonies Punishable by Life are punishable for a term of years not to exceed life and a $15,000.00 fine. .