Domestic Violence Defense Lawyers in Sarasota, Florida
Florida Statute § 741.2901- Florida Domestic Violence Laws, Penalties, and Legal Defenses
Through Title XLIII Domestic Relations, Chapter 741 Marriage: Domestic Violence, Florida Statute 741.2901(2), the Florida Legislature has expressed its desire to see that acts of domestic violence be handled as criminal offenses rather than as private matters to be handled between the involved parties. Florida’s tough stance toward crimes of domestic violence means that people charged with a domestic violence offense may be separated from their loved ones by court-imposed injunctions even before they are convicted of any crime. Upon conviction, a person faces mandatory minimum jail terms, probation or supervision, and will be required to complete a batterers’ intervention program.
Florida Legislature’s Intent in Florida Statutes 741.2901 and 741.2902
Florida’s Legislature has declared in Florida Statute 741.2901(2) its desire and intention that domestic violence acts be treated as criminal matters, punishable by the full panoply of sentencing options available in criminal court. The state’s attorney’s offices are directed in Statute 741.2901(1) to designate and train both prosecutors and support staff within their offices to handle domestic violence cases. This ties into the Legislature’s purpose in crafting domestic violence laws: that those who are accused of committing domestic violence offenses be aggressively prosecuted and not be provided relief based upon arguments that such crimes are a “private affair” between the parties.
The Florida Legislature’s opinions as to how cases of domestic violence ought to be handled extends to the role of the judiciary as well. Florida Statute 741.2902(1) instructs judges overseeing cases involving domestic violence to consider the safety of the alleged victim and any children involved when determining if the person accused should be released, and to exercise caution before concluding that a person charged with domestic violence should be released pending the outcome of his or her case.
Florida Statute 741.28(2) Describes Crimes of Domestic Violence
The term “domestic violence” encompasses a variety of criminal acts committed against a “family or household member”. These criminal acts and offenses can include any:
- Assault or aggravated assault
- Battery or aggravated battery
- Sexual assault or sexual battery
- Stalking or aggravated stalking
- Kidnapping or false imprisonment
Any other criminal offense committed by one “family or household member” against another that causes either a physical injury to or the death of the other “family or household member.”
Florida Statute 741.28(3) Defines “Family or Household Members”
A crime of domestic violence is one that is committed against a “family or household member” by another “family or household member.” Those individuals who qualify as family or household members include:
- Spouses and former spouses, including spouses who are divorced or separated.
- Individuals who are related to one another either by blood or by marriage.
- Persons who are living together as would a family unit or who have lived together in such an arrangement in the past.
- Individuals who have a child in common.
Additionally, in order to be considered “family or household members” the persons must be presently residing together in the same dwelling unit or have resided with one another in the same dwelling unit at some point in the past. People who have a child in common with one another are exempt from this “single dwelling unit” requirement.
Florida Statute 741.283: Minimum Terms of Imprisonment
Florida law sets forth certain mandatory minimum terms of imprisonment for domestic violence offenses. These minimum sentences must be imposed whenever a person is convicted of a crime of domestic violence and that person intentionally caused bodily harm to another. The length of these mandatory minimum sentences depends on how many previous domestic violence offenses the perpetrator has been convicted of and whether the present offense was done in the presence of a “family or household member” under the age of 16 years:
First Offense: The person must serve a minimum of 10 days in jail.
Second Offense: The person must serve a minimum of 15 days in jail.
Third or Subsequent Offense: The person must serve a minimum of 20 days in jail.
If the domestic violence crime was committed in the presence of a “family or household member” who as under 16 years of age, then the minimum jail sentences are increased to 15 days for a first offense, 20 days for a second offense, and 30 days for a third or subsequent offense. These minimum sentences do not stop a court from imposing a sentence that includes a term of probation, supervision, or additional time in jail. However, the sentencing court does not have to impose these mandatory jail terms if the court sentences the person to serve time in state prison.
Florida Statute 741.2901(3) and 741.2902(2) and Use of Prior History
When a person is charged with a domestic violence offense, the local state’s attorney’s office is to conduct a thorough investigation of the offender’s history. This includes looking into the number of times the person has been previously arrested for domestic violence offenses and other criminal acts, any previous domestic violence injunctions that have been issued against the person, and any other complaints of domestic violence that have been lodged against the person (even if no arrest occurred). This information is to be presented to the court at the first appearance hearing and is to be considered by the judge when setting bail or releasing the defendant and when sentencing the individual after conviction for a crime of domestic violence.
Florida Statute 741.2901(3) further mandates that individuals arrested on suspicion of committing crimes of domestic violence are to be held in custody until they have been brought before a judge to have their bail set.
Florida Statute 741.281 and Batterers’ Intervention Programs
Anyone who has pled nolo contendere to, been found guilty of, or had adjudication withheld on a crime of domestic violence is required to be placed on at least one year of probation supervision and ordered to complete a batterers’ intervention program as a condition of probation. The court must impose the batterers’ intervention program requirement unless (1) the court states reasons on the record why such a program would not be appropriate in the person’s case; or (2) the court determines that the person is not qualified to attend such a program. The court can choose to impose a sentence of imprisonment and still require the offender to complete the batterers’ intervention program.
Florida Statute 741.30: Domestic Violence Injunctions
Florida statues permit those who fear a “family or household member” may commit an act of domestic violence against them, as well as victims of domestic violence, to obtain an injunction against their abuser. These injunctions can require the abuser to leave the residence they share with the alleged victim, refrain from committing further acts of violence or abuse against the victim, abide by a temporary parenting plan (if the abuser and the victim have a child or children in common), awarding the victim temporary child support, and any other condition the judge believes is necessary to protect the victim and any children involved.
Furthermore, the Florida Legislature sets out in Florida Statute 741.30(4)(a) that violations of domestic violence injunctions are to be prosecuted as first-class misdemeanors, which can result in imprisonment for up to one year.
Designation of Domestic Violence Offenses in Florida
“Domestic violence” is not a separate offense in Florida; rather, it describes any one of a number of specific crimes committed against a “family or household member” of the accused. In addition to the statutorily enumerated offenses such as sexual assault, sexual battery, and kidnapping, any offense can be considered a domestic violence offense if it is committed against a “family or household member” and injury or death is inflicted on another person.
Prosecutors must allege that an offense filed against a person is a crime of domestic violence and must furthermore prove both the elements of the underlying offense as well as the facts that make the offense a crime of domestic violence. For example, suppose a person is accused of falsely imprisoning his ex-spouse by confining her in his home when she shows up to pick up the couple’s children for visitation. In this situation, the prosecution must not only prove all of the elements of the crime of false imprisonment beyond a reasonable doubt, but the prosecution must also prove beyond a reasonable doubt that the accused and the victim were “family or household members.”
Alleging that a crime is one of domestic violence triggers the provisions of Florida law requiring that the judge set a bail (as opposed to releasing someone on his or her own recognizance), that the prosecution investigate the offender’s criminal history with regard to domestic violence offenses, and that the court enter orders to protect the victim and any child or children that might be impacted by the offender. Conviction for a crime of domestic violence triggers the mandatory minimum sentencing requirements of Florida Statute 741.283 as well as the requirement that the offender complete a batterers’ intervention program pursuant to Florida Statute 741.281.
Process of a Domestic Violence Crime in Sarasota, Florida
Step 1: Investigation and arrest: Law enforcement officers investigate allegations of domestic violence. If there is sufficient probable cause, the accused is arrested and taken to jail.
Step 2: First appearance hearing: The accused is brought before a judge who will inform the accused of the charges and set the person’s bail amount. In setting bail, the judge will hear from the prosecutor information concerning the accused’s history and will set a bail and accompanying conditions that protect the victim and community.
Step 3: Arraignment: The accused will be asked to enter a plea to the charges against him or her. If he or she pleads not guilty to any of the charges filed against him or her, the case will eventually proceed to trial.
Step 4: Trial: At trial, the prosecution must prove the defendant committed the underlying crime and that the crime was one of domestic violence beyond a reasonable doubt to a judge or jury.
Step 5: Sentencing: If convicted of a crime of domestic violence, the court will sentence the defendant pursuant to the domestic violence laws as well as the sentencing laws applicable to the underlying offense. This will usually involve a mandatory period of jail, assignment to probation, and a requirement that the offender complete a batterers’ intervention program.
Florida Domestic Violence Crimes FAQs
Is my ex-girlfriend or ex-boyfriend considered a “family or household member”?
Possibly so. If you and your ex-girlfriend or ex-boyfriend ever resided in the same home or apartment or have at least one child in common, your girlfriend may be considered a “family or household member” for purposes of Florida’s domestic violence laws. Any of the enumerated crimes committed against your girlfriend, or any crime that results in injury or death to another person involving your girlfriend, is going to trigger Florida’s domestic violence laws.
Will I go to jail for being accused of an act of domestic violence?
Yes, it is a very real possibility that you will go to jail. Because of Florida’s tough stance against domestic violence and the Legislature’s intention that domestic violence acts be treated as criminal offenses, if the police find there is sufficient evidence to believe you committed an act of violence against a family or household member, you will more than likely go to jail and not be permitted to be released until you make bail. If you are convicted of a domestic violence offense, you will have to serve a mandatory minimum period of incarceration in jail.
What kind of temporary orders can be entered against me?
In setting your bail or in granting a domestic violence injunction, the judge can enter a number of temporary orders. The judge can, for example, order that you change your residence (if you live with the victim), that you comply with a temporary parenting plan, and that you not have any contact with the alleged victim during the pendency of your criminal case. Violating these conditions or the terms of a domestic violence injunction can lead to additional criminal charges.
Can the victim in my case (my spouse, boy- or girlfriend, etc.) get the prosecutor to drop my case?
The alleged victim in your case can always ask the prosecutor to drop the charges against you, but such efforts (standing alone) are not likely to be successful. Florida prosecutors are encouraged by statute to pursue criminal charges against those accused of domestic violence offenses, and many will do so if they believe they have sufficient evidence to do so. You should be careful, too, as a prosecutor may assume that you encouraged the victim to speak with the prosecutor and thereby violated a domestic violence injunction or conditions of bail.
What is the batterers’ intervention program?
The batterers’ intervention program is a rehabilitative program that those convicted of domestic violence offenses must usually attend and complete as part of their sentences. This program is administered by qualified facilitators and is meant to enable participants to examine their actions and attitudes, uncover abusive patterns of thought and behavior, and develop better methods for dealing with stress in their interpersonal relationships and for coping with life’s challenging moments. Successfully completing such a program involves more than simply attending meetings: attendees are expected to participate in discussions, apply the tools and strategies they learn in class to their daily lives, and be accountable for their actions outside of class.
Legal Defenses in a Sarasota Domestic Violence Case
Because Florida encourages prosecutions for domestic violence offenses to take place, expecting the victim to convince the prosecutor to drop the case or expecting a dismissal of your case if the victim does not appear to testify will not likely prove successful. Attacking the prosecution’s proof of the underlying criminal act and the domestic violence designation can lead to better results. For example:
- If there is no proof that the victim is a “family or household member,” the offense cannot be considered one of domestic violence.
- If the offense is not one enumerated within Florida Statute 741.28 and no one involved suffered an injury or death, the crime may not be considered an act of domestic violence.
- Mandatory minimum sentences may be lessened if there is no competent and reliable evidence that the person has previously been convicted of a domestic violence offense.
- Incarceration pending trial and prison following conviction may be avoided if the offender is able to articulate a plan whereby the court’s concerns about the victim’s safety can be adequately assuaged.
- Enhancement penalties can be avoided if there is no direct or circumstantial evidence that a child under the age of 16 years was present.
A lack of witness testimony, witness testimony that is inconsistent or that conflicts with other evidence, and evidence that is inconclusive (i.e., photographs that do not clearly show any injury on the victim) can all be used by a skilled domestic violence defense attorney to weaken the prosecution’s case against the accused and increase the likelihood of an acquittal or a dismissal of the case.
Why Choose Musca Law to Handle Your Sarasota Domestic Violence Case?
With so much at stake in a Florida prosecution for a crime of domestic violence, retaining the right legal counsel can play a significant role in the outcome a person experiences. Attorney John Musca of Musca Law has been recognized by the National Trial Lawyers Association and been named one of the Top 100 Trial Lawyers in the nation. He has also earned a perfect 10/10 rating on Avvo.com from peer and client reviews. Musca Law has numerous office locations throughout Florida and will come to clients to assist them with their domestic violence cases. Those facing domestic violence charges can reach out to Musca Law 24 hours a day, seven days a week for assistance with their charges.
Strong Legal Defense for Your Florida Domestic Violence Charge
The repercussions of a violent crimes conviction far outlive a prison sentence and will have bearing on a person’s personal and professional life. Don’t be afraid to put the skills of an experienced Florida criminal defense attorney on your side. The legal team at Musca Law has the experience and resources required to help fight your conviction. Schedule a free consultation with our law firm today by calling (888) 484-5057.