Experienced Domestic Violence Lawyer

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  • Generally

The state of Florida adheres to a pro-arrest, pro-prosecution policy in domestic violence cases. The legislature has made it clear that in this state, incidents of domestic violence are to be treated as criminal acts and not private matters. It is for that reason that the police will almost always make an arrest in a domestic violence related investigation, assuming probable cause exists. With regard to the arrest, Florida Statute section 741.29(3) mandates that "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. The decision to arrest and charge shall not require consent of the victim or consideration of the relationship of the parties." In domestic situations, emotions tend to run high and leaving the accused and the alleged victim in an already volatile environment can have disastrous consequences.

In Florida, where an arrest is made, the accused person is entitled to a bond unless the offense is a capital or life felony and the "proof of guilt is evident or the presumption is great". Domestic violence offenses present somewhat of a caveat to this general principle. At the time of arrest, the person is held on no bond pending their first appearance hearing (which must occur within twenty four hours thereafter). I have had numerous alleged victims in domestic violence cases retain me to represent the accused person and their first concern is usually the "no bond" status. Florida statute section 741.2901(3) provides, in pertinent part, that "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 accordance with chapter 903". The court will set a bond at the first appearance hearing (also referred to as an "advisory hearing"). The amount will depend on the seriousness of the allegations, the accused person's prior criminal history, whether there have been instances of domestic violence between the accused and the alleged victim in the past, and the alleged victim's position on prosecution. As with all criminal cases, the court will also take into account the accused person's ties to the community and any history of failing to appear for court dates.

At the advisory hearing, the court will address the issue of contact as well. If the alleged victim does not want contact with the accused, the court will not allow it. The no contact order will be a condition of the defendant's bond or ROR (release on own recognizance). In some instances, the court will not allow contact even if the alleged victim requests it. This usually occurs where the allegations are particularly aggravating, or where there is a pattern of domestic violence between the defendant and the alleged victim. The court can (and usually will) impose additional conditions of pre-trial release as appropriate, such as a no-alcohol provision. To ensure compliance with the no-contact provision, the no-alcohol provision, or both, the court may require the accused person to be fitted with a CAM monitor, which tracks the accused person's whereabouts and can detect alcohol consumption. These types of safeguards are not normally implemented in non-domestic violence cases. If the conditions of pre-trial release are violated, the state or the court (on its own motion) can move to revoke the bond or ROR status and a warrant may be issued. The state may also elect to charge the accused with "violation of pre-trial release", a misdemeanor offense. It is imperative that the defendant comply with all conditions of release as violations can really affect opportunities for a more favorable outcome.

In accordance with Florida's pro-prosecution policy in domestic violence cases, the filing of a sworn request not to prosecute by the alleged victim will not, in and of itself, result in the state declining to prosecute. Florida statute section 741.2901 provides, in pertinent part as follows: "The state attorney in each circuit shall adopt a pro-prosecution policy for acts of domestic violence, as defined in s. 741.28 [see below], 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 specialized prosecutors over the objection of the victim, if necessary".

What is meant by "specialized prosecutors"? Each state attorney is required by law to develop special units or to assign prosecutors to specialize in the handling of domestic violence cases, and to ensure they receive training to help them function in that capacity. As a Pinellas County state prosecutor, I was assigned to the misdemeanor domestic violence unit for just over nine months, and continued to handle domestic related offenses after being promoted to the felony division. Having served in that capacity for as long as I did, I am very aware of the manner in which domestic violence crimes are referred, investigated, and assessed in terms of their viability for prosecution, in the St. Petersburg / Clearwater area. Although there is a pro-prosecution policy in domestic violence cases, it does not mean necessarily that the charge will be filed. Sometimes the evidence is insufficient to establish a reasonable likelihood of successful prosecution. In other instances, the alleged victim or witnesses to the purported crime lack credibility. For further reading on filing decision criteria, see the "Defenses" section below.

The Florida legislature has also expressed its intent that criminal prosecution is the preferred method of enforcing compliance with violations of injunctions for protection against domestic violence (as opposed to civil contempt proceedings), a position that is also very much in line with its pro-prosecution policy on the handling of domestic related crime.

So what, exactly, is domestic violence? Domestic violence is defined in Florida Statute section 741.28 as "any 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". The statute defines "family or household member" as 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." If the relationship between the accused and the alleged victim does not meet the statutory criteria, the case will still proceed as it would otherwise, but the matter will not be treated as a domestic related offense, and the provisions of Florida law specific to domestic related crimes will therefore not apply.

Some of the offenses enumerated in section 741.28 constitute misdemeanors while others constitute felonies. Most of what gets prosecuted in county court are simple assaults, simple batteries, stalking charges, and violations of injunction for protection against domestic violence. Simple assault is a second degree misdemeanor, so the maximum penalty upon conviction is 60 days in jail, six months probation, or some combination of the two. Battery, stalking, and injunction violations are first degree misdemeanors, which carry a maximum penalty of twelve months probation, twelve months in county jail, or some combination of the two (the total sentence cannot exceed one year). Aggravated Assault, Aggravated Battery, Kidnapping, False Imprisonment, and sexually motivated domestic violence crimes all constitute felonies. The degree of felony, in accordance with Florida law, will establish the maximum penalty. A felony of the third degree (e.g. aggravated assault) is punishable by up to five years in state prison. A felony of the second degree (e.g. aggravated battery) is punishable by up to fifteen years in state prison. A felony of the first degree (e.g. sexual battery) is, in most instances, punishable by up to thirty years in prison. The low end of the sentencing range, in felony cases, is determined by Florida's sentencing guidelines. For further reading, see the Sentencing section of our website, and the "Resources" section below. More specific questions about sentencing guidelines should be directed to an experienced St. Petersburg criminal defense attorney.

You should be aware that if a person is adjudicated guilty of a crime of domestic violence, whether a felony or a misdemeanor, and that person has intentionally caused "bodily harm" to the victim, the court must order the person to serve a minimum of five days in the county jail, as part of the sentence imposed, unless the person is being sentenced to a non-suspended period of incarceration in a state correctional facility (in the case of a felony domestic related crime). Domestic battery is one of the very few misdemeanor offenses in the state of Florida that carry a minimum period of incarceration upon conviction. If there is no conviction, as would be the case with a diversion program or where the court withholds adjudication of guilt, the jail requirement is not mandatory. Also, if the offense causing bodily injury does not occur between family or household members then, of course, it is not a crime of domestic violence, and the minimum term of incarceration upon conviction would not apply there either.

St. Petersburg Criminal Defense Attorney Donald J. Kilfin is a former six year Pinellas county state prosecutor. As an assistant state attorney, he handled hundreds of domestic violence cases in both county and circuit court from pre-charge investigation through trial and appeal. If you have been arrested for a domestic related crime in St. Petersburg, Clearwater, or Tampa, The Kilfin Law Firm, P.C. can help.‚Äč

  • Domestic Battery

Along with violations of injunction for protection against domestic violence, simple battery is probably the most common domestic related offense for which people are arrested and prosecuted. In Florida, the offense of battery occurs when a person either (1) actually or intentionally touches or strikes another person against the will of the other; or (2) intentionally causes bodily harm to another person. Quite clearly, it doesn't take much to commit a battery - a simple touching can be enough. In reality, most officers will not make an arrest unless there is something aggressive or offensive about the touching. A visible sign of injury, no matter how benign, will usually result in an arrest for domestic battery provided the officer finds the alleged victim's statement credible. Statements from witnesses, even in the absence of visible injury, will also result in an arrest, in most cases.

You should be aware that under Florida law, a person who has one prior conviction for battery, aggravated battery, or felony battery, and who commits any second or subsequent battery, commits a felony of the third degree. So, if you commit what would otherwise be a simple battery (a first degree misdemeanor) and you have a prior battery-related conviction (either felony or misdemeanor), you will be arrested (and quite possibly charged) with a third degree felony ("felony battery"). This provision applies to both domestic and non-domestic battery offenses. Also, the applicable statute states that "For purposes of this subsection, 'conviction' means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld, or a plea of nolo contendre is entered". If you have one or more prior battery offenses that were resolved by either pre-trial diversion or the filing of a no-information, then any subsequent simple battery charge cannot be enhanced to a felony battery. It is only those prior battery charges to which a plea of guilty or no contest was entered that can be used for the purposes of enhancement.

  • Resources

The following is a list of outside sources, prior blog posts, and other website sections on topics related to domestic violence offenses:

  • Links
  1. HG. Org: St. Petersburg Domestic Violence Defense Attorney
  2. HG. Org: St. Petersburg Assault & Aggravated Assault Defense Attorney
  3. HG. Org: St. Petersburg Battery & Aggravated Battery Defense Attorney
  4. HG. Org: Florida Sentencing Enhancements Pt. 1: Prison Releasee Re offenders
  5. HG. Org: Florida Sentencing Enhancements Pt. 2: Habitual Felony Offenders and Habitual Violent Felony Offenders
  6. HG. Org: Florida Sentencing Enhancements Pt. 3: Three Time Violent Felony Offenders and Violent Career Criminals
  7. HG. Org: Florida Sentencing Enhancements Pt. 4: 10-20-Life
  8. State Attorney's Office, Sixth Judicial Circuit: Domestic Violence Offenses
  9. State Attorney's Office: Thirteenth Judicial Circuit: Victim's Assistance
  10. Community Action Stops Abuse (CASA)
  • Blog Posts
  1. Do I Need a St. Petersburg Criminal Defense Attorney?
  2. They Never Read Me My Rights - Can My Charge Be Dismissed?
  3. Pre-Trial Release in Florida: The Basics
  4. Speedy Trial in Florida: An Overview
  5. What is a Stand Your Ground Immunity Motion?
  6. Florida Sentencing Guideline Departures: Youthful Offenders
  7. Florida Sentencing Guideline Departures: Need for Restitution
  8. Florida Sentencing Guideline Departures: Legitimate, Uncoerced Plea Bargain
  9. Florida Places Burden of Proof on the State in Stand Your Ground Immunity Hearings
  • Related Sections
  1. Alibi as a Defense to Your St. Petersburg, Clearwater, Tampa Area Criminal Charge
  2. Justifiable Use of Force
  3. Affecting the Filing Decision
  4. Defensive Motions
  5. Plea Negotiations
  6. Withholding of Adjudication
  7. Pre-Trial Diversion
  8. Trial
  9. Sentencing
  10. Sealing & Expunging
  11. Assault & Aggravated Assault
  12. Battery & Aggravated Battery
  13. False Imprisonment
  14. Kidnapping
  • The Bottom Line

The sooner you retain The Kilfin Law Firm, P.C., the sooner we can begin developing a custom tailored strategy to resolve your case. At our firm, we will employ all of our knowledge, experience, and resources to fight for your rights and future. We are committed to providing the highest quality of legal representation to clients in St. Petersburg, Clearwater, Tampa, and surrounding areas. If you forgo the assistance of an experienced defense attorney and you are ultimately convicted, you could be facing loss of child custody, restraining order, jail or prison time, fines, restitution, mandatory anger management courses, loss of reputation in the community, and lifelong complications stemming from a criminal record

Your family, your livelihood, and your reputation are on the line, and The Kilfin Law Firm, P.C. is here to help. There are a number of potential defenses that could be used to mitigate or eliminate the impact of your domestic violence charge. To discuss the merits of your case, and what options may be available, contact our firm today to schedule a consultation with Attorney Donald J. Kilfin. Your first evaluation is free!