Injunction Defense Lawyers in Cape Coral, Florida
An Overview of Florida Injunction Laws, Penalties, and Defenses
Injunctions for the protection against violence, also referred to in Florida as protective injunctions, restraining orders, or simply injunctions, enable an individual, (referred to under the law as the petitioner), who fears becoming the victim of violence the ability to request the court through the submission of a petition, to protect him or her. The Cape Coral court has the authority to issue an injunction against the other individual, known as the respondent, that is specifically meant to protect the individual who asserts that he or she is in fear of violence.
Courts apply their contempt orders to coerce offenders to comply with the injunction that has been entered against him or her. This means that the individual must obey the court’s order or it will order law enforcement to place him or her under arrest and sent to jail.
Circuit courts in Florida handle thousands of injunction petitioners on an annual basis. While many cases are worthy of an injunction, there are also a number of them that involve individuals who seek such a remedy to exact revenge, hurt, or obtain leverage over another person, especially in family law cases involving a custody battle. The misuse and abuse of the legal system occur on a regular basis in Florida and across the United States in several injunction matters. Not everyone harbors the notion that each person who comes before a court has a fair hearing. Too many people have stood before a judge with the expectation that the truth will be the deciding factor, only to be disappointed. The problem is magnified when a person’s liberty is taken away through the issuance of an injunction.
Specifically, the judge who orders an injunction to prevent harm inflicted upon another person can take the alleged offender’s freedom away from him or her. In fact, if an injunction is issued against an alleged offender, he or she may not be able to move around freely, converse with whomever he or she wants, or possess ammunition and a firearm, all of which are rights guaranteed by the United States and Florida Constitutions.
It is without a doubt that people have the right to be free from fear of violence. With this in mind, judges tend to favor protecting the individual claiming to be a victim of violence rather than safeguarding the rights of the alleged offender. Notwithstanding, having a skilled Florida Injunction Defense Attorney can help preserve your legal rights, level the playing field, and enable you to develop the strongest defense strategy possible. When you contact Musca Law at 888-484-5057, you will have the chance to speak with one of our experienced Cape Coral Injunction and Criminal Defense Attorneys who will discuss with you your legal rights, interests, and options. Our team of legal professionals has over 150 collective years of experience handling injunction matters, which will offer you the benefit that only successful and reputable lawyers can provide you.
Categories of Cape Coral Injunctions for Protection
Florida law enables Cape Coral judges to issue orders to protect individuals who seek an injunction in the court. Each category of injunction requires that there either be a specific form of harm being alleged or a specific relationship between the two parties. A judge in a Cape Coral circuit court has the authority to issue an injunction for protection. Specifically, the Florida State Assembly passed statutes enabling courts to issue the following forms of injunctions:
- Prevention of Domestic Violence, §741.30 of the Florida Statutes,
- Prevention of Stalking, §784.0485 of the Florida Statutes,
- Prevention of Dating Violence, §784.046 of the Florida Statutes,
- Prevention of Sexual Violence, §784.046 of the Florida Statutes, and
- Prevention of Repeat Violence, §784.046 of the Florida Statutes.
Each of the above injunctions carries with it the potential for an alleged offender to lose his or her freedom. This is why it is critical for the accused to seek a Cape Coral Injunction and Criminal Defense Attorney as soon as possible. Keep in mind that on certain occasions, the petitioner may qualify for more than one injunction, depending upon the facts and circumstances of his or her case. If an individual represents himself/herself, the court will hold him or her to the same standard as an experienced lawyer. That is why it is vital to contact a skilled attorney as soon as you have been served.
Dating Violence Injunctions in Cape Coral, Florida
Dating violence and domestic violence are often confused with one another. Specifically, dating violence involves two individuals who are or were in an intimate or romantic relationship. In order to obtain a dating violence injunction, the petitioner must state in detail that the parties were in a substantial relationship, even if the relationship no longer exists. The court looks back six months from the time that the petitioner filed his or her petition with the court in order to determine the nature of the relationship between the two parties. Even though the standing requirement (e.g., the legal right to file a case) is different for a domestic violence and dating violence injunctions, the types of crimes alleged are similar.
Domestic Violence Injunctions in Cape Coral, Florida
Domestic violence injunctions involve threats of violence or acts of violence that occur between household or family members. Family members include those who are married, used to be married, hold themselves out as family members living together, and people related by blood. Family member also includes people who have a child together, even if the parents of the child never resided in the same household dwelling.
Stalking Injunctions in Cape Coral, Florida
Stalking is a serious criminal offense in Florida. Per Florida Statutes §784.048(2), it indicates that stalking occurs when one person willfully or maliciously, follows some, harasses, or cyberstalks another without any legal justification. Cyberstalking also has a certain definition under Florida law. Florida Statutes §784.048(1)(d) provides that cyberstalking occurs when a person engages in a course of conduct designed to communicate, individually or through a third-party words, pictures, language, or images through any medium of electronic communication, including but not limited to text messages, social media posts, or emails directed at another. Cyberstalking also occurs when another unlawfully accesses or attempts to access any online or internet-based personal accounts connected to a person without permission from that person and which causes the victim substantial emotional distress.
Repeat Violence Injunctions in Cape Coral, Florida
A judge in Cape Coral can issue an injunction in order to prevent repeat violence if the petitioner raises the allegation that the respondent committed two or more acts of violence toward the petitioner or his or her family members. The petitioner must claim specific acts of violence; he or she cannot just simply state that the respondent is a violent person. The court will allow the petitioner to move forward if the most recent act of violence occurred within six months of the petition.
Sexual Violence Injunction in Cape Coral, Florida
Sexual violence under Florida law refers to sexual battery, lewd and lascivious behavior, sexual assault, or any other sexually violent offense. The petitioner must cooperate with law enforcement as they conduct their investigation in order for him or her to obtain protection from the court. It is not required for the respondent to be facing sexual offense charges in order for the petitioner to seek an injunction. However, the petitioner has the option of applying for an injunction against sexual violence within 90 days of the perpetrator’s release from prison.
The Procedure to Obtain a Protective Injunction in Cape Coral, Florida
As noted above, the individual who seeks the injunction is the petitioner. He or she must fill out a court-approved form, known as a petition for an injunction, with the clerk’s office. This form is used in every court across the state of Florida.
The petitioner must be honest when filling out the petition. He or she must also sign it under the pains and penalties of perjury, which means that the petitioner is swearing that the contents of the pleading are accurate and true. The petition requires the petitioner to provide detailed information as to the name, address, telephone number, and possible location of the person from whom protection is sought. Also provided above, the person from whom protection is sought is called the respondent.
The petitioner must provide in detail why he or she requires an injunction from the court. The petition specifically states that the petitioner must provide factual support for the request. The nature of the pleading is different in each case, however, all of the petition forms are basically the same.
Once the petitioner files the petition with the court, the clerk’s office brings said document to the presiding judge for his or her review. The petitioner may request an ex parte hearing to determine if the petitioner is in imminent threat of harm or danger from the respondent, which may result in the judge issuing a temporary restraining order. The judge has the discretion to deny the request for said remedy. In determining whether to issue a temporary restraining order, the petitioner is the only party present. In reviewing the case, the judge only looks at the face of the pleadings in deciding whether a temporary restraining order is warranted.
A temporary restraining order is only valid for fifteen days. During the fifteen-day time period, the Lee County Sheriff’s Office will serve the respondent with the pleadings along with any temporary restraining order issued by the judge. Service of process is essential in safeguarding the due process rights of the respondent. Under the United States and Florida Constitutions, the respondent cannot be held liable for violating a court order that he or she never received. Hence, the sheriff’s office or local law enforcement agency must serve the respondent with all of the pleadings, notices, and orders generated by the court. Conversely, intentionally avoiding service of process might enable the presiding judge to issue a ruling that the respondent received “constructive notice” of the judge’s temporary restraining order. In that instance, the respondent will be held to answer for any violation of said order.
The respondent’s defense attorney will likely file a motion to continue the court case, which means that it will seek to postpone the final hearing date. This gives the respondent enough time to find competent counsel to represent him or her at the final hearing. While any attorney can represent the respondent, it is critical to work with one that has handled injunction matters and any criminal charges that may arise.
At the final hearing, the judge will listen to the testimony of the petitioner and quite possibly, the respondent (if it is determined by the respondent upon the advice of his or her attorney that this is a favorable course of action to take). It is critical to understand that the respondent has a Fifth Amendment right against self-incrimination, and therefore, cannot be forced to testify during the hearing. The respondent, through his or her attorney, may cross-examine witnesses who testify. Either party can seek to admit evidence to the court such as documentation, medical evidence, and photographs. Common exhibits admitted at a final hearing for an injunction are photos, emails, text messages, social media posts, social media messages, medical records, and any other physical evidence the judge deems relevant and material.
Through counsel, the respondent can assert various defenses in the case that may convince the judge that the injunction is unjust or unnecessary. Counsel could also make similar arguments as those in a criminal proceeding such as mistaken identity, self-defense, mutual combat, the existence of an alibi, and unclean hands, to name a few. Moreover, the defense may also attempt to establish during the hearing that the petitioner had a motive to lie about the facts of the case because he or she has something to gain by obtaining an injunction (such as prevailing in a custody battle) or has a bias toward the respondent.
The presiding judge, at the conclusion of the hearing, will determine whether or not to issue an injunction. The court must decide whether the parties were truthful and assess the strength of the petitioner’s case. The court is fully within its discretion to deny the petition. If the judge denies the petition, then any temporary restraining orders issued by the court will be dissolved. If the judge issues an injunction, then the respondent must fully comply with all of its terms, or else he or she could face criminal charges.
The Serious Repercussions of Losing an Injunction Case in Lee County
There are serious repercussions associated with losing an injunction case in Cape Coral. While the terms of an injunction vary in each case, the court could order the respondent to have no further contact with the petitioner or the petitioner’s family, require the respondent to stay away from the petitioner, force the respondent to seek a medical evaluation and mental health treatment (such as substance abuse counseling), require the respondent to have no further contact with the parties’ child or children, force the respondent to move out of a shared dwelling, require the respondent to surrender all firearms and ammunition to law enforcement, and require the respondent to avoid certain locations where the petitioner frequents.
There are various consequences associate with living subject to a protective injunction, which many respondents do not realize until they have been saddled with one. It is important to keep in mind that being subject to an injunction is a public record. Hence, anyone who conducts a background check on a respondent will find out that there has been an injunction issued against him or her. This means that the respondent could lose out on opportunities such as finding a new job, a new home, obtaining a mortgage, seeking educational opportunities, or finding a residence because the existence of an injunction to prevent violence invites the inference the respondent a violent and dangerous person who cannot be trusted by society. The respondent can also face social stigma and lose the support and relationship with family members and friends.
Extending, Modifying, or Terminating a Cape Coral Injunction for Protection
The presiding judge can order the injunction to be in effect on a permanent basis or can include an expiration date on the order. As such, the petitioner must file a motion to extend the order within at least 30 days before it is set to expire. The respondent may attend this hearing and be represented by counsel in challenging the extension.
The petitioner and/or the respondent may also seek to have the judge terminate the order. This is accomplished through filing a motion explaining to the court the circumstances surrounding why the injunction should be terminated. The judge can either schedule a hearing or rule exclusively on the pleadings. The party who moves to have the order terminated must explain to the court why the injunction no longer protects the petitioner or that the petitioner no longer requires protection.
The parties also have the right to ask the court to modify the order. This is accomplished through the filing of a motion to request that the judge modify the order due to changed circumstances or the existence of undue hardship that is unjust.
Call Musca Law to Defend Your Legal Rights
Musca Law’s Cape Coral Criminal Defense Attorneys understand that sometimes relationships deteriorate, and people become jaded, frustrated, or vindictive. The courts are not to be used to settle personal scores, but the sheer volume of cases judges need to hear leads to complacency from the bench. Do not allow your case to be ushered aside and lumped in with other cases. Call Musca Law today at 888-484-5057 to pursue a vigorous defense against an injunction for protection as well as any criminal charges that arise. Do not allow your case to be lumped in with all of the others. Musca Law’s Cape Coral Injunction and Criminal Defense Lawyers prove themselves on fighting for individualized justice in your case.