Domestic Violence

Summary

Domestic Violence occurs when one member of a family or household commits any criminal offense resulting in physical injury or death against another family or household member.  Under such circumstances, the underlying crime may be increased to a more serious classification/level, and additional penalties may be required under Florida’s criminal penalties and sentencing laws.  Police agencies, prosecutors, and courts have developed policies and procedures according to the laws that are uniquely designed for domestic violence cases, which affect the investigation, arrest, booking, and release process.  Also, alleged victims are afforded additional protections and remedies, such as that of obtaining an Injunction or Restraining Order against the accused.

Applicable Florida Statutes

741.28 Domestic violence defined —

“Domestic violence” means any 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.

“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 are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

741.281 A sentence for Domestic Violence requires probation and mandatory counseling –

If a person is found guilty of, has adjudication withheld on, or pleads nolo contendere to a crime of domestic violence, the court shall order a minimum term of 1 year probation and the court shall order that the defendant attend a 29 week batterers’ intervention program as a condition of probation, unless the court determines the program to be inappropriate. The imposition of probation and counseling does not preclude the court from imposing any sentence of imprisonment.

741.283 Jail is required in some domestic violence cases —

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 the person to serve a minimum of 5 days in the county jail as part of the sentence imposed, unless the court sentences the person to a non-suspended period of incarceration in a state correctional facility. This does not preclude the court from sentencing the person to probation, community control, or an additional period of incarceration.

741.29 Domestic violence: special rules for the way the police investigate and decide to arrest –

Whenever a law enforcement officer determines upon probable cause that an act of domestic violence has been committed within the jurisdiction the officer may arrest the person or persons suspected of its commission and charge such person or persons with the appropriate crime, without a warrant. The decision to arrest and charge shall not require consent of the victim or consideration of the relationship of the parties.

When complaints are received from two or more parties, the officers shall evaluate each complaint separately to determine whether there is probable cause for arrest.

If a law enforcement officer has probable cause to believe that two or more persons have committed a misdemeanor or felony, or if two or more persons make complaints to the officer, the officer shall try to determine who was the primary aggressor. Arrest is the preferred response only with respect to the primary aggressor and not the preferred response with respect to a person who acts in a reasonable manner to protect or defend oneself or another family or household member from domestic violence.

A person who willfully violates a condition of pretrial release when the original arrest was for an act of domestic violence, commits a misdemeanor of the first degree, and shall be held in custody until his or her first appearance.

741.2901 Domestic violence cases: special rules for prosecutors and judges —

Each state attorney shall develop special units or assign prosecutors to specialize in the prosecution of domestic violence cases, but such specialization need not be an exclusive area of duty assignment. These prosecutors, specializing in domestic violence cases, and their support staff shall receive training in domestic violence issues.

Domestic violence is treated as a criminal act rather than a private matter. For that reason, criminal prosecution is the favored method of enforcing compliance with injunctions for protection against domestic violence as both length and severity of sentence for those found to have committed the crime of domestic violence can be greater.

The state attorney has a pro-prosecution policy for acts of domestic violence and an intake policy and procedures coordinated with the clerk of court for violations of injunctions for protection against domestic violence. The filing, non-filing, or diversion of criminal charges, and the prosecution of violations of injunctions for protection against domestic violence by the state attorney, shall be determined by these specialized prosecutors over the objection of the victim, if necessary.

When a defendant is arrested for an act of domestic violence, the defendant shall be held in custody until brought before the court for admittance to bail. In determining bail, the court shall consider the safety of the victim, the victim’s children, and any other person who may be in danger if the defendant is released.

741.30 Domestic violence injunctions—

When a person is accused of domestic violence, the alleged victim may obtain an injunction for protection against domestic violence.

Any person who is either the victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence, has standing in the circuit court to file a sworn petition for an injunction for protection against domestic violence.

This cause of action for an injunction may be sought whether or not any other cause of action is currently pending between the parties. However, the pendency of any such cause of action shall be alleged in the petition.

In the event a subsequent cause of action is filed in a divorce or domestic case, any orders entered therein shall take precedence over any inconsistent provisions of an injunction issued.

 Upon the filing of the petition, the court shall set a hearing to be held at the earliest possible time. The respondent shall be personally served with a copy of the petition, notice of hearing, and temporary injunction, if any, prior to the hearing.

If it appears to the court that an immediate and present danger of domestic violence exists, the court may grant a temporary injunction ex parte, pending a full hearing, and may grant such relief as the court deems proper.

Any such ex parte temporary injunction shall be effective for a fixed period not to exceed 15 days. A full hearing, as provided by this section, shall be set for a date no later than the date when the temporary injunction ceases to be effective. The court may grant a continuance of the hearing before or during a hearing for good cause shown by any party, which shall include a continuance to obtain service of process. Any injunction shall be extended if necessary to remain in full force and effect during any period of continuance.

A final injunction for protection against domestic violence is in effect as long as the court orders, or until modified or dissolved.  The court may require a batterer’s intervention program; or, in some cases, unless the court makes written factual findings in its judgment or order which are based on substantial evidence, stating why batterers’ intervention programs would be inappropriate, the court must order the respondent to attend a batterers’ intervention program.

The court may enforce a violation of an injunction for protection against domestic violence through a civil or criminal contempt proceeding, or the state attorney may prosecute it as a criminal violation under s. 741.31. The court may enforce the respondent’s compliance with the injunction through any appropriate civil and criminal remedies, including, but not limited to, a monetary assessment or a fine..

The petitioner or the respondent may move the court to modify or dissolve an injunction at any time.

741.31 Violation of an injunction for protection against domestic violence.—

A person who willfully violates an injunction for protection against domestic violence issued, by:

1. Refusing to vacate the dwelling that the parties share;

2. Going to, or being within 500 feet of, the petitioner’s residence, school, place of employment, or a specified place frequented regularly by the petitioner and any named family or household member;

3. Committing an act of domestic violence against the petitioner;

4. Committing any other violation of the injunction through an intentional unlawful threat, word, or act to do violence to the petitioner;

5. Telephoning, contacting, or otherwise communicating with the petitioner directly or indirectly, unless the injunction specifically allows indirect contact through a third party;

6. Knowingly and intentionally coming within 100 feet of the petitioner’s motor vehicle, whether or not that vehicle is occupied;

7. Defacing or destroying the petitioner’s personal property, including the petitioner’s motor vehicle; or

8. Refusing to surrender firearms or ammunition if ordered to do so by the court,

commits a misdemeanor of the first degree.

It is a misdemeanor of the first degree for a person to violate a final injunction for protection against domestic violence by having in his or her care, custody, possession, or control any firearm or ammunition.

The court shall order the respondent to attend a batterers’ intervention program if it finds a willful violation of a domestic violence injunction, unless the court makes written factual findings in its judgment or order which are based on substantial evidence, stating why a batterers’ intervention program would be inappropriate.

Any person who suffers an injury and/or loss as a result of a violation of an injunction for protection against domestic violence may be awarded economic damages for that injury and/or loss by the court issuing the injunction. Damages include costs and attorneys’ fees for enforcement of the injunction.

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