Address:
Bank of America Plaza
101 E. Kennedy Blvd
Suite 1485
Tampa, FL 33602
Phone:
(813) 228-7095 (office line)
(813) 263-7044
(813) 334-3910
(813) 228-7099 (fax)
Tampa Criminal Attorney
INJUNCTIONS:
MAIN PAGE:
COMMENTARY:
SHOULD I REPRESENT MYSELF?
Many people feel that injunctions are minor court cases that can be resolved without the need of an attorney. This is a very serious mistake. Typically, the Domestic Relations Judge has already read the petitioner’s side of the story and granted a temporary injunction before the respondent ever sees the inside of a courtroom. Respondents should also be aware of the standard of proof in these courts. All the court needs is the petitioner to offer “competent, substantial” evidence that the respondent poses a threat of violence in order to grant the petition for the injunction. Moreover, a non-lawyer is often very unaware of the rules of evidence and how the court will weigh evidence. Depending on the circumstances surrounding the events leading to the petition it is also important to realize that different judges rule differently when it comes to these issues. Certain judges give petitioners wide latitude to add facts to their allegations that are not contained in the petition, or recall events that are far too remote to play a role in the Court’s ultimate decision. Not to mention the obvious politics that surround these types of cases. All these reasons make representing yourself in these hearings very, very unwise.
THE BASICS:
The first thing that is important to understand about Domestic Relations Court is the difference between the two parties. If you are requesting the Court to grant you an injunction to protect you from a potential threat of violence then you are classified as a, “Petitioner”. The party defending the allegations made by the Petitioner is the “Respondent”.
There are four different types of injunctions that have been developed by the Florida Legislature to prevent certain types of violence against certain types of petitioners. The different types of injunctions amount to the following:
1) Domestic Violence 2) Repeat Violence 3) Dating Violence 4) Sexual Violence
It is very important to realize that violating an injunction can be very dangerous. Depending on the nature of the violation, serious criminal charges can result from violating an injunction ranging from a first degree misdemeanor punishable by a maximum of one year in the county jail to a third degree felony punishable by 5 years in Florida State Prison.
THE INJUNCTION AS A WEAPON
Over the last 15 years we have defended clients/respondents from every type of injunction. One recurring theme we see again and again is the vindictive petitioner requesting the court for an injunction not to prevent further violence, but to serve some other end. For instance, the most common scenario typically arises out of a divorce in Family Law Court. A man or women claims their former spouse committed domestic violence against them in an effort to gain some advantage in a custody battle in front of the Family Law judge. One factor used by the family law court to determine who should have residential responsibility in a custody battle is whether there have been any acts of domestic violence by the father against the mother or vice versa. As a consequence, many dishonest parents will use the domestic violence court to win a custody battle in Family Law court.
While the scenario above describes the most common type of frivolous injunctions, there can be other dishonest reasons for filing an injunction. A petitioner may want to force a co-worker out of his/her office. The petitioner may want to spark a very serious, life altering criminal investigation against the respondent by filing a false petition against sexual violence. For instance, we have seen step-children make false sexual allegations in their petition because they no longer want to live with a step-parent. We have also seen unmarried parents that are willing to create false sexual allegations in a petition for an injunction against sexual violence in an effort to destroy any relationship between the respondent and their child. Unfortunately, the Domestic Relations Court is by far the most abused court in our justice system.
HOW LONG IS THE TEMPORARY INJUNCTION EFFECTIVE?
(c) Any such ex parte temporary injunction shall be effective for a fixed period not to exceed 15 days. However, an ex parte temporary injunction granted under subparagraph (2)(c)2. is effective for 15 days following the date the respondent is released from incarceration. A full hearing, as provided by this section, shall be set for a date no later than the date when the temporary injunction ceases to be effective. The court may grant a continuance of the ex parte injunction and the full hearing before or during a hearing, for good cause shown by any party.
IF A PERMANENT INJUNCTION IS GRANTED HOW LONG WILL IT BE EFFECTIVE?
(c) The terms of the injunction shall remain in full force and effect until modified or dissolved. Either party may move at any time to modify or dissolve the injunction. Such relief may be granted in addition to other civil or criminal remedies.
DOMESTIC VIOLENCE
1) What the Law Says:
When determining whether the Court will issue an injunction for protection against domestic violence it is important to first consider what qualifies as “domestic violence” under the law. Florida Statute 741.28 clearly establishes what qualifies as “domestic violence”. In the state of Florida domestic violence means the following:
“Domestic violence” means any assault, aggravated 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.
Florida Statute 741.30 describes the factors used by the Court to determine whether a petition for an injunction for protection against domestic violence should be entered. The Court can consider, but is not limited to, the following factors:
1. The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.
2. Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
3. Whether the respondent has threatened to conceal, kidnap, or harm the petitioner's child or children.
4. Whether the respondent has intentionally injured or killed a family pet.
5. Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.
6. Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.
7. Whether the respondent has a criminal history involving violence or the threat of violence.
8. The existence of a verifiable order of protection issued previously or from another jurisdiction.
9. Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner.
10. Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence.
COMMENTARY:
It is important to realize that the Court is not limited by the factors set out in Florida Statute 741.30, and that a non-lawyer should never assume that the conduct described by the petitioner would never qualify as “domestic violence”. All the crimes listed in F.S. 741.28 can be committed in a number of different ways. Only a trained lawyer can give you sound advice on whether your conduct qualifies as “domestic violence”.
While this type of injunction is probably the most common it is also abused by more petitioners than any other. Unfortunately, the nature of domestic violence has forced the Florida legislature to make filing a petition for any type of injunction a very simple task. This has lead unscrupulous spouses and former boyfriends/girlfriends to use this easy access to the courts as method to punish their significant other. Don’t wait until the Court has granted an injunction against you to hire a lawyer. Call our office immediately if you have been served with any type of injunction.
DATING VIOLENCE
1) What the Law Says:
Florida Statute 784.046 sets out the requirements necessary for the Court to order a Petition for an injunction for Protection against Dating Violence. In order to understand the factors that will be used by the Court to determine whether you have committed acts that warrant having an injunction for protection against dating violence entered against you, you must first consider some basic concepts under the statute. What qualifies as “violence” and what qualifies as “dating violence” for the purposes of this type of injunction? Violence is means the following:
“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.
“Dating violence” involves a number of different factors. “Dating violence” means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on the consideration of the following factors:
1. A dating relationship must have existed within the past 6 months;
2. The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties; and3. The frequency and type of interaction between the persons involved in the relationship must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.
The term does not include violence in a casual acquaintanceship or violence between individuals who only have engaged in ordinary fraternization in a business or social context.
COMMENTARY:
This type of injunction can be granted based on one violent incident by the respondent against the petitioner, but typically it is necessary for the petitioner to document a number of violent incidents before the Court will grant this type of injunction. It is imperative that you retain an experienced attorney to determine whether you have committed an act or acts that would warrant the Court granting this type of injunction against you. This type of injunction, like the others, can be used by petitioners serve other purposes than protecting themselves from further violence. We have seen co-workers file this type of injunction in an effort to remove the person they were dating out of the company that employed both of them. Do not assume that your conduct will not be interpreted by the court as dangerous or “violent”. Only a trained attorney with experience in these courts can assess your situation, and properly defend you from this type of injunction. Call our office immediately if you have been served with an injunction for protection against dating violence.
SEXUAL VIOLENCE:
1) What the Law Says:
Florida Statute 784.046 sets out the factors used to determine whether an injunction for protection against Sexual Violence should be entered. The statute defines “sexual violence”. However, anyone served with an injunction of this type should never assume that they appreciate the elements that make up the crimes listed below. Each one of these crimes is made of elements, and depending on the nature of the events, your conduct may or may not qualify as “sexual violence”. “Sexual violence” means any one incident of:
1. Sexual battery, as defined in chapter 794;
2. A lewd or lascivious act, as defined in chapter 800, committed upon or in the presence of a person younger than 16 years of age;
3. Luring or enticing a child, as described in chapter 787;
4. Sexual performance by a child, as described in chapter 827; or
5. Any other forcible felony wherein a sexual act is committed or attempted, regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the state attorney.
COMMENTARY:
Of all the injunctions created by the Florida legislature, the injunction for protection against sexual violence has the potential to create the most damage to the respondent. Even if law enforcement never follows through on the criminal charges that stem from the allegations in the petition, the implications (stigma) of this type of injunction on your record are devastating. All injunctions for protection against any type of violence are civil in nature. While that does mean that you cannot be subjected to incarceration if it is granted against you, it does mean that a record of the injunction will be created in the clerk’s system, and with law enforcement. These records can be easily discovered by anyone. Depending on the nature of the sexual violence and the circumstances surrounding the allegations you could have very powerful defenses. If you have been served with an injunction against sexual violence it is absolutely imperative that you retain an experienced attorney to defend you. Contact our office right away if you have been served with an injunction for protection against sexual violence.
REPEAT VIOLENCE:
1) What the Law Says:
Florida Statute 784.046 describes the conduct necessary to grant the injunction for protection against repeat violence. “Violence” is defined in this statute in the following way:
“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.
The statute goes on to more specifically define what “repeat violence” means.
“Repeat violence” means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member.
COMMENTARY:
Many respondents might feel that their conduct falls outside the definition of “repeat violence” because of the time-frames involved in their particular factual scenario. They might also assume that their conduct could not amount to a crime if they weren’t charged or convicted. It is not necessary to be charged or convicted of the criminal charges listed in the statute in order for the Court to grant an injunction against you. As a consequence, assume nothing! Unless you are an experienced lawyer that is familiar with the definitions of the crimes listed in the statute, you are unable to fully appreciate the strengths or weaknesses in your position. Our office has defended respondents from these types of allegations for 15 years. Contact our office immediately if you have been served with an injunction against repeat violence.