Protective Injunction for Repeat Violence Defense Attorneys in Miami, Florida
Defending Against Repeat Violence Injunctions
What is an injunction?
In Florida, an injunction, also referred to as a “protective injunction,” “protective order,” or “restraining order,” is an order that a court issues against an individual, known as a respondent, that legally prohibits him or her from engaging in certain actions. The petitioner is the individual who seeks the injunction against the respondent. If the respondent violates the terms of an injunction, he or she can face serious legal repercussions, including civil and criminal penalties.
There are five types of injunctions in Florida, which include:
- Repeat violence
- Domestic violence
- Sexual violence
- Domestic violence
How are each of the above types of restraining orders similar to one another?
- The petitioner is the person who files the petition for an injunction against another person who is known as the respondent.
- The petition is a sworn document, which means that the petitioner must sign it in front of the court clerk or a notary.
- The judge may or may not approve a temporary injunction prior to whether the hearing is held to determine whether a permanent injunction is warranted.
- The temporary injunction is effective until such time that the permanent injunction hearing is held on the matter.
- A petition for a permanent injunction is usually served on the respondent by the local sheriff.
- The respondent is entitled to be notified of the upcoming hearing.
- A hearing can still be scheduled even if the judge does not approve the temporary injunction.
- Both the respondent and the petitioner to have witnesses testify on their behalf.
- Both parties can submit evidence to the court to support their respective positions.
- The judge may choose to issue a permanent injunction at the final hearing on the matter.
- If a judge issues an injunction at the hearing, it shall remain in effect until it is set to expire or indefinitely. The only way that the injunction can be modified is through the court.
- If the respondent violates the injunction, he or she can face jail time, monetary fines, and be held in contempt of court.
What makes a repeat violence injunction unique?
- Requires at least two incidents of violence or stalking by the respondent or one of his or her family members.
- Requires at least one violent act or stalking within the last six months.
- Petitioner must fear that he or she will be the victim of violence once again.
- The victim or a legal guardian or parent of a child residing at home may file a petition.
- Safeguards minors and adults from repeat contact and acts of violence.
- The respondent may be required to surrender all guns and ammunition to law enforcement if a temporary injunction has been issued against the respondent.
- The respondent must surrender all guns and ammunition to law enforcement if a repeat violence injunction has been issued against the respondent.
What is violence and repeat violence under Florida law?
Under Florida law, “violence” means “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” “Repeat violence” means “two incidents of violence or stalking committed by the respondent, one of which must have been within six months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.”
Who is able to file a repeat violence injunction?
Under Florida law, a victim of repeat violence or the parent or legal guardian of a child less than eighteen years old may file a petition. It is critical to realize that those in the following types of relationships may seek a repeat violence injunction:
- Employers and employees
A person who alleges that they have been the victim of repeat violence must establish that an assault or battery occurred for this type of injunction to be issued against another person. Only having knowledge that an individual has violent tendencies is not enough evidence to support the issuance of an injunction. The alleged victim must have a valid fear that violence is imminent. Simply making obscene hand gestures or shouting at another individual is not sufficient to warrant injunctive relief.
How can a repeat violence injunction be dismissed, vacated, modified, changed, or dissolved, or removed once it is in effect?
A repeat violence injunction can only be vacated, modified, changed, dissolved or dismissed through the court. In order to obtain relief from a repeat violence injunction, the moving party must prove that the facts and circumstances that supported the need for a repeat violence injunction are no longer in effect such that keeping the injunction in effect serves no valid purpose.
How does a victim of repeat violence obtain a repeat violence injunction?
In Florida, a petitioner must file a Petition for Injunction for Protection Against Repeat Violence with the court in his or her jurisdiction. Once the petition has been filed, the judge usually examines it within a few hours after filing and determines whether to issue a temporary injunction against the respondent. At this point, the judge is not questioning the veracity of the allegations raised by the petitioner, as this is done at the final hearing on the matter.
Once the judge determines whether or not to issue a temporary injunction against the respondent, the next step is referred to as a “return hearing,” which happens within fifteen days or less from the date when the petition was originally filed. During this time, the judge decides whether a repeat violence injunction is warranted based upon the evidence brought forth by the parties in the case. It is important to understand that the judge has the sole discretion of denying both the temporary injunction as well as the return hearing.
What occurs at a repeat violence injunction hearing?
Once the petition is filed, the judge may opt to schedule a hearing, even if he or she denied the temporary injunction. Keep in mind that the petitioner has the burden of proving that he or she is entitled to a repeat violence injunction. Both parties can support his or her respective position through submitting certain evidence to the court such as documentation, and the testimony of witnesses and law enforcement. The parties can cross-examine each other’s witnesses that have been brought forth in the case. Once all of the evidence has been presented to the judge, he or she will then decide whether or not to issue a repeat violence injunction. If a repeat violence injunction is issued, the respondent cannot have any future contact with the petitioner and must abide by the terms of the injunction in order to avoid severe civil and criminal penalties.
What occurs if the respondent violates the terms of a repeat violence injunction?
If a respondent violates a repeat violence injunction, he or she may face felony or misdemeanor charges, all of which depends upon the facts and circumstances of the case. This means that the respondent could be sent to prison and be required to pay hefty monetary fines to the court. The respondent may also be held in contempt of court, which is a serious civil penalty that may result in jail time.
Under what circumstances can a petitioner extend a repeat violence injunction that has expired?
The petitioner can extend a repeat violence injunction as long as he or she pursues same prior to its expiration date. In deciding whether or not to extend a repeat violence injunction, the judge does not need for the petitioner to submit new evidence of violence. Specifically, he or she will review the facts that supported the original injunction as well as the actions of the respondent, if any, following the issuance of the injunction that caused the petitioner to fear for his or her safety.
Frequently asked questions about repeat violence injunctions in Miami-Dade County, Florida
What happens when a person files a petition for a repeat violence injunction?
Once the petitioner files a petition for a repeat violence injunction, the judge then renders a determination as to whether to issue a temporary injunction that remains effective until the hearing date. The judge, at this juncture, may deny the injunction and schedule a hearing, deny the temporary injunction without holding a hearing, or grant the temporary injunction and schedule a hearing.
If the judge decides to issue a temporary injunction against the respondent, he or she must adhere to its terms until the date of the hearing. This means that the respondent can have no further contact with the petitioner until the hearing date. During the hearing, each party can present his or her case. If the claims raised in the petition are misrepresented, false, or exaggerated, the respondent’s attorney will seek to have the petition dismissed and the injunction denied.
What happens if the respondent fails to challenge the repeat violence petition?
If the respondent does not refute the allegations in the petition, the petitioner then has free reign to present his or her case as uncontested. This means that the judge may issue a repeat violence injunction without hearing the respondent’s side of the story. This is why it is critical for the respondent to attend the hearing and work with a zealous Florida criminal defense attorney to develop the strongest defense strategy possible.
What happens if the court issues a repeat violence injunction after the hearing?
Once the judge orders a repeat violence injunction against the respondent, he or she can have no further contact with the petitioner. Essentially, the respondent must adhere to all of the terms of the repeat violence injunction. If the respondent violates the injunction, he or she will face serious criminal and civil penalties. Once the injunction is effective, the respondent must stay away from the petitioner and is prohibited from being in places where the petitioner frequents, such as a school, home, or house of worship.
Once the judge orders a repeat violence injunction against the respondent, he or she cannot have any further contact with the petitioner. In essence, the respondent must abide by all of the terms of the injunction or else he or she will face serious civil and criminal consequences. Specifically, the respondent will be ordered to stay away from the petitioner and cannot be present in places where the petitioner frequents, such as his or her home, place of worship, or school. The respondent must also surrender any ammunition and guns to law enforcement once the injunction is issued against him or her. The court can also require the respondent to seek mental health treatment at his or her own expense.
How long does a repeat violence injunction remain effective?
A repeat violence injunction is effective on a permanent basis or until such time that it is set to expire, whichever is applicable. If the injunction is permanent, then either party must go through the court to have it changed.
The repeat violence injunction indicates that there is to be "no contact" between the respondent and the petitioner. What does “no contact” specifically mean?
“No contact” means that the respondent cannot contact the petitioner, whether indirectly, directly, or through a third party such as a family member or friend. For instance, if the respondent texts the friend of the petitioner with the intention of the message being passed along to the petitioner, this is a violation of a repeat violence injunction.
How is a repeat violence injunction violated?
A repeat violence injunction s violated when the respondent commits aggravated assault, assault, sexual assault, aggravated battery, sexual battery, aggravated stalking, stalking, false imprisonment, kidnapping, or any other criminal offense that causes injury or death, or threatens the petitioner with any of these crimes.
What will happen if a person violates a repeat violence injunction?
If the respondent violates a repeat violence injunction, he or she will face severe criminal and civil penalties. Specifically, the respondent could be held in contempt of court and be sent to jail. He or she may also be forced to pay a hefty monetary fine for his or her actions.
Are repeat violence injunctions part of the public record?
Yes. An injunction is part of the public record, which means that anyone who is conducting a background check of the respondent can find out about his or her criminal history in this regard. This can have serious repercussions and affect the respondent’s ability to obtain a bank loan, find suitable housing, and seek gainful employment.
Can a person appeal a repeat violence injunction?
Yes. The respondent can appeal a repeat violence injunction. Only a seasoned Florida criminal defense lawyer can properly advise the respondent as whether or not it is worth appealing the injunction.
Will an expired repeat violence injunction still affect me in the future?
Yes, even if a repeat violence injunction expires, it is still part of the public record and cannot be expunged.
Do I need a Florida criminal attorney to represent me if a petition for a repeat violence injunction has been filed against me?
It is not legally required for a respondent to hire a Florida criminal defense attorney however, it is highly advised that he or she does so in order to safeguard his or her legal rights and develop the strongest defense strategy possible to refute the allegations.
What are the consequences of a repeat violence injunction?
There are many negative implications of a repeat violence injunction which can drastically affect one’s life for years to come, if not permanently. The consequences include difficulty finding gainful employment and suitable housing as well as obtaining a bank loan. This is why it is vital for a respondent to work with a knowledgeable criminal defense attorney to safeguard his or her legal rights and interests as well as mount the most effective defense strategy possible.
Contact Musca Law Today to Learn More About Your Legal Rights and Options
Facing the prospects of a repeat violence injunction can be frightening, as an active injunction can negatively affect your life in several serious ways. When you work a seasoned Miami criminal defense attorney at Musca Law, he or she will help you to challenge a repeat violence injunction to the fullest extent of the law. Our firm’s attorneys are among The National Trial Lawyers – Top 100 Trial Lawyers, included in the 2012 Florida Super Lawyers® for criminal defense, and boast 10.0 Superb Avvo ratings. Our attorneys are skilled, experienced, tenacious, and relentless when it comes to defending our clients. To learn more about how Musca Law can make a difference for you, call (888) 484-5057 today.