DOMESTIC BATTERY IN FLORIDA: It’s Not Like Every Other Crime

January 29, 2010

Hard Line Approach 

As a practicing criminal defense attorney, I often receive calls from individuals who have either been arrested for domestic battery, or from the “victim” of domestic battery calling on behalf of the arrested person.  More often than not, if it is the “victim” they tell me that they didn’t want the police to actually make an arrest.  However, once that call is made to law enforcement regarding a DOMESTIC VIOLENCE incident, usually someone is going to jail.  Florida Law specifically states that domestic violence shall be treated as a criminal act rather than a private matter.  As a result, during a domestic violence incident, from the very first contact with law enforcement; there is a pro-prosecution mentality even if the alleged victim does not want to cooperate in the prosecution.  Obviously, the reasoning behind this position is the State’s public interest in “protecting” the victim of domestic violence.  In addition to the overall pro-prosecution mentality of law enforcement and the State Attorney’s Office, there are additional laws which effectively treat a “domestic violence” case differently than any other crime. 

Not Entitled to a Bond Until You Appear Before a Judge 

Once arrested, unlike most other crimes, you will not be able to post a bond and get out of jail until you appear before a judge.  So what that means is that if you are arrested for a domestic violence offense, you will sit in jail until you are your “first appearance” hearing.  Here in Pinellas County, for instance, if you are arrested for a felony charge, you will not even get in front of a judge until the afternoon.  Often times, as a condition of bond, you are not allowed to have contact with the alleged victim or their place of residence, even if the arrested person owns the residence. 

The State Attorney Makes the Decision Whether to Prosecute  

Truth be told, the State Attorney makes the decision whether to prosecute a case in every instance.  However, in a garden variety crime, such as theft or a simple battery, under most circumstances, if the victim doesn’t want the State to prosecute then usually that case is dropped.  That is usually NOT the case when it comes to prosecuting domestic violence cases.  If the alleged victim does not want the case prosecuted, or is actually refusing to cooperate with the prosecution, if the State Attorney believes there is sufficient evidence to proceed, they will do so.  

Serious Consequences and Penalties 

Cannot Seal or Expunge a Domestic Violence Case Resolved with a Guilty or No Contest Plea   

Like just about everything else involving domestic violence cases, entering a plea to any charge labeled as “domestic violence” carries potentially serious consequences down the road.  These consequences may not be readily apparent at the time of the plea.  For instance, I have seen as a former prosecutor and now as a defense attorney, people in jail at the “first appearance” hearing after they have spent a night in jail on a simple misdemeanor domestic battery arrest.  Perhaps it is their first arrest ever.  They are scared; perhaps hungry; have no money with them at that moment, and all they want to do is get out of jail.  It is at this point that the judge offers to withhold adjudication and put them on probation.  The person is told that they are not convicted.  The arrested person changes his plea to the charge and gets out of jail.  Well what just happened?  That arrest offense will NEVER come off of your record.  Under Florida Law, any disposition of a domestic violence case which involves a guilty or no contest plea, even if adjudication is withheld, CANNOT be sealed or expunged.  I have had numerous calls from people trying to seal or expunge a case where they were arrested for domestic violence and pled to it without consulting with an attorney only to learn later that this arrest will remain on their record forever.  This type of arrest or charge can seriously impact someone looking for employment or for those looking to advance in their current employment. 

Stringent Probation Requirements 

If you change your plea to an offense involving domestic violence, Florida Law requires that the offender successfully enter into and complete of family violence counseling which usually takes six months to complete.  Your sentence may also include provisions such as no contact with the victim, alcohol evaluation and treatment, psychological evaluation and treatment, and restitution. 

Jail or Prison 

Some instances, depending on the facts alleged or the prior record of the arrested person, may lead to increased jail time or enhanced penalties such as: 

  • If a person is convicted of Domestic Violence with Bodily Harm you are facing a minimum of 5 days in the county jail.

 

  • If convicted of Aggravated Domestic Battery, even without any prior criminal record, you are facing a mandatory state prison sentence under the State Criminal Punishment Code and possibly as much as 15 years in prison.

 

  • Florida Law states that if a person has a previous conviction for domestic battery, even if there was a withhold of adjudication, a subsequent conviction for an act of domestic battery can be charged as a felony with a maximum penalty of up to 5 years in prison.

  

Impact on Divorce and Custody Cases 

  

  • An arrest or conviction for domestic violence can be used to your detriment in a subsequent or pending divorce matter with the alleged victim especially if there are children in the home and they have witnessed the alleged acts of domestic violence. 

  

Impact on the Ownership, Use, or Possession of Firearms 

  • Florida Law requires the suspension of your concealed weapons permit if you are arrested for an act of domestic violence.

  

  • FEDERAL LAW prohibits a person convicted of an act of domestic violence from using, owning or possessing a firearm.

  

Conclusion 

Once the phone call is made to law enforcement for a domestic violence case, Florida Law is going to take over and these cases are not taken lightly.  If you are arrested for any act of domestic violence you should take it as seriously as the State of Florida does by calling a Clearwater Domestic Violence Attorney for help.  My initial consultion is always free.

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