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Winston Law PA
561-670-9375

Domestic Violence

Domestic violence includes any violent criminal offense by one household or family member against another household or family member.  It can occur between spouses, people in  dating relationships, parent and child, roommates or other family members.  Depending on the circumstances surrounding the incident, domestic violence can be charged as a misdemeanor or a felony.

In cases of alleged domestic violence law enforcement is required to act if called to a scene.  They must make quick judgments based on very little evidence, which often leads to the arrest of one party.  Once arrested, the defendant will have an opportunity for bond.  The bond amount will be based on the severity of the charges, the defendant’s record and concern for the alleged victim’s safety.  In almost all situations a no contact order (order requiring the defendant not to have contact with the alleged victim) will be ordered by the court.  The next stage in the process is for the State Attorney to review the case and determine if or what charges should be filed.

Often, alleged victims come forward by signing an affidavit or a Waiver of Prosecution, stating they want to drop the charges against the defendant.  While this makes prosecution more difficult for the State, the State Attorney can still move forward with the charges by serving any uncooperative witnesses with a subpoena that requires them to testify in court.

Misdemeanor Domestic Violence Charges

There are several misdemeanor charges that fall under the category of domestic violence.  Each requires the defendant and the alleged victim to live in the same household.  Those include the following:

Domestic Assault.  To prove the crime of Domestic Assault, the State must prove, beyond a reasonable doubt, that:

  • the defendant intentionally and unlawfully threatened, either by word or act to do violence to the victim;
  • at the time the defendant appeared to have the ability to carry out the threat and
  • the act of the defendant, created in the mind of the victim a well-founded fear that violence was about to take place.

Domestic Assault is a second degree misdemeanor punishable by up to 60 days in the county jail.

Domestic Battery.  To prove the crime of Domestic Battery, the State must prove, beyond a reasonable doubt, that:

  • the defendant intentionally touched or struck the victim against his or her will or
  • the defendant intentionally caused bodily harm to the victim.

Domestic Battery is a first degree misdemeanor punishable by up to one year in the county jail.  According to Florida Statute, the court is required, if a person is convicted of Domestic Battery, to sentence him or her to a year of probation that must include a Batterers’ Intervention Program (a 26 week program designed to teach about domestic violence and anger management), unless the court expresses on the record why the program may be inappropriate for the defendant.

Stalking.  To prove the crime of Stalking, the State must prove, beyond a reasonable doubt, that:

  • the defendant willfully, maliciously, and repeatedly followed, harassed or cyber stalked the victim.

Stalking is a first degree misdemeanor punishable but up to one year in the county jail.

Violation of Domestic Violence Injunction.  Often, as a result of alleged domestic violence, an alleged victim may request that an injunction (or restraining order) be put in place so that the respondent (person accused of committing an act of violence) cannot make contact with the alleged victim.  An injunction against domestic violence is a civil order that usually lasts for a year.  Within that document, the respondent must follow specific conditions which include staying 500 feet away from the petitioner (person making the accusation of violence), the petitioner’s place of work and home.  There may be other conditions.  If the respondent violates one of those conditions, he or she can be charged with Violation of Domestic Violence Injunction.  To prove the crime, the State must prove, beyond a reasonable doubt, that:

  • the a temporary or final injunction for protection against domestic violence was issued by a court against the defendant and
  • the defendant willfully violated the injunction by committing a specific act.

Violation of Domestic Violence Injunction is a first degree misdemeanor and punishable by up to one year in the county jail.

Felony Domestic Violence Charges

There are several felony charges that fall under the category of domestic violence. Each is similar to the lesser misdemeanor charges but have an aggravating factor such as a weapon.  Those include the following:

Aggravated Assault.   To prove the crime of Aggravated Assault, the State must prove, beyond a reasonable doubt, that:

  • the defendant intentionally and unlawfully threatened, either by word or act, to do violence to the victim,
  • at the time the defendant appeared to have the ability to carry out the threat,
  • the act of the defendant, created in the mind of the victim a well-founded fear that violence was about to take place and
  • the assault was made with a deadly weapon or with a fully formed conscious intent to commit a crime upon the victim.

Aggravated Assault is a third degree felony punishable by up to 5 years in prison.

Aggravated Battery.  To prove the crime of Aggravated Battery, the State must prove, beyond a reasonable doubt, that:

  • the defendant intentionally touched or struck the victim against his or her will
  • or that the defendant intentionally caused bodily harm to the victim and
  • in committing the battery, intentionally or knowingly caused permanent disability to the victim or used a weapon.

Aggravated Battery is a second degree felony punishable by up to 15 years in prison.

Domestic Battery by Strangulation.   To prove the crime of Aggravated Battery, the State must prove, beyond a reasonable doubt, that:

  • the defendant intentionally and knowingly impeded the normal breathing or
  • circulation of blood of the victim against his or her will by applying pressure on the throat or neck of the victim or
  • by blocking the nose or the mouth of the victim.
  • In doing so, the defendant created a risk of or caused great bodily harm to the victim.

Domestic Battery by Strangulation is a third degree felony punishable by up to 5 years in prison.

Aggravated Stalking.  To prove the crime of Stalking, the State must prove, beyond a reasonable doubt, that:

  • the defendant willfully, maliciously, and repeatedly followed, harassed or cyber stalked the victim.
  • During this act, the defendant must have made a credible threat with the intent to place the victim in reasonable fear of death or bodily injury,
  • The defendant had a valid domestic violence injunction entered against him or her, or the victim was under the age of 16.

Aggravated stalking is a third degree felony punishable by up to 5 years in prison.

False Imprisonment.  To prove the crime of False Imprisonment, the State must prove, beyond a reasonable doubt, that:

  • the defendant forcibly, secretly or by threat, confined, abducted, imprisoned or restrained the victim against his or her will and
  • had no lawfully authority to do so.

False Imprisonment is a third degree felony punishable by up to 5 years in prison.  False Imprisonment can apply to an act as simple as restraining a person or blocking a door during a fight or an argument.  Often it is charged along with another domestic violence charge.

Child Abuse.  To prove the crime of Child Abuse, the State must prove, beyond a reasonable doubt, that:

  • the defendant intentionally inflicted physical or mental injury upon the victim, or
  • committed an intentional act that could reasonably be expected to result in physical or mental injury to the victim,  or
  • actively encouraged another person to commit an act that resulted in or could reasonably result in in physical or mental injury to victim.
  • The victim must be under 18 years of age.

Child Abuse is a third degree felony punishable by up to 5 years in prison.

Aggravated Child Abuse.  To prove the crime of Aggravated Child Abuse, the State must prove, beyond a reasonable doubt, that:

  • the defendant committed aggravated battery, or
  • willfully tortured, maliciously punished, willfully and unlawfully caged, knowingly or willfully committed child abuse, and
  • caused great bodily harm to the victim.

Aggravated Child Abuse is a first degree felony punishable but up to 30 years in prison.

Neglect of a Child.  To prove the crime of Neglect of a Child, the State must prove, beyond a reasonable doubt, that:

  • the defendant willfully or by culpable negligence failed or omitted to provide the victim with care, supervision, and services necessary to maintain physical or mental health, or
  • failed to make a reasonable effort to protect the victim from abuse, neglect, or exploitation by another person,
  • the defendant was the caregiver for the victim, and
  • the victim was under 18.

If there is no great bodily harm to the child, Neglect of a Child is a third degree felony punishable by up to 5 years in prison.  If the State can prove great bodily harm, permanent injury or disfigurement then it is a second degree felony punishable by up to 15 years in prison.

If you have been arrested or are charged with a crime of domestic violence it is important to contact a knowledgeable and skilled criminal defense attorney as soon as possible.  Often, claims of domestic violence are a result of a false accusations made by a party in a divorce or child custody action.   At Winston Law, P.A. we can contact the State before the case is filed and provide information that may result in the charges being dismissed or lesser charges being filed.  If your case is filed, we will develop a defense strategy that may include arguing self- defense, that the incident was an accident, or that the alleged victim is not being truthful about the incident.  If your case is best resolved with a plea bargain, Winston Law, P.A. can negotiate with the State to get the best possible deal including diversion programs which lead to a dismissal of the charges.

If you or a loved one has been charged with a domestic violence crime, please contact Winston Law, P.A. at (561) 670-9375 or susan@winstonlawpa.com for your free consultation.

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