| Hard Line Approach | | | | moment, and all they want to do is get out of jail. It |
| As a practicing criminal defense attorney, I often | | | | is at this point that the judge offers to withhold |
| receive calls from individuals who have either been | | | | adjudication and put them on probation. The person is |
| arrested for domestic battery, or from the "victim" | | | | told that they are not convicted. The arrested |
| of domestic battery calling on behalf of the arrested | | | | person changes his plea to the charge and gets out |
| person. More often than not, if it is the "victim" they | | | | of jail. Well what just happened? That arrest offense |
| tell me that they didn't want the police to actually | | | | will NEVER come off of your record. Under Florida |
| make an arrest. However, once that call is made to | | | | Law, any disposition of a domestic violence case |
| law enforcement regarding a domestic violence | | | | which involves a guilty or no contest plea, even if |
| incident, usually someone is going to jail. Florida Law | | | | adjudication is withheld, CANNOT be sealed or |
| specifically states that domestic violence shall be | | | | expunged. I have had numerous calls from people |
| treated as a criminal act rather than a private matter. | | | | trying to seal or expunge a case where they were |
| As a result, during a domestic battery incident, from | | | | arrested for domestic battery and pled to it without |
| the very first contact with law enforcement; there is | | | | consulting with an attorney only to learn later that |
| a pro-prosecution mentality even if the alleged victim | | | | this arrest will remain on their record forever. This |
| does not want to cooperate in the prosecution. | | | | type of arrest or charge can seriously impact |
| Obviously, the reasoning behind this position is the | | | | someone looking for employment or for those |
| State's public interest in "protecting" the victim of | | | | looking to advance in their current employment. |
| domestic battery. In addition to the overall | | | | Stringent Probation Requirements |
| pro-prosecution mentality of law enforcement and | | | | If you change your plea to an offense involving |
| the State Attorney's Office, there are additional laws | | | | domestic violence, Florida Law requires that the |
| which effectively treat a "domestic violence" case | | | | offender successfully enter into and complete of |
| differently than any other crime. | | | | family violence counseling which usually takes six |
| Not Entitled to a Bond Until You Appear Before a | | | | months to complete. Your sentence may also include |
| Judge | | | | provisions such as no contact with the victim, alcohol |
| Once arrested, unlike most other crimes, you will not | | | | evaluation and treatment, psychological evaluation and |
| be able to post a bond and get out of jail until you | | | | treatment, and restitution. |
| appear before a judge. So what that means is that if | | | | Jail or Prison |
| you are arrested for a domestic violence offense, | | | | Some instances, depending on the facts alleged or |
| you will sit in jail until you are your "first appearance" | | | | the prior record of the arrested person, may lead to |
| hearing. Here in Pinellas County, for instance, if you | | | | increased jail time or enhanced penalties such as: |
| are arrested for a felony charge, you will not even | | | | If a person is convicted of Domestic Violence with |
| get in front of a judge until the afternoon. Often | | | | Bodily Harm you are facing a minimum of 5 days in |
| times, as a condition of bond, you are not allowed to | | | | the county jail. |
| have contact with the alleged victim or their place of | | | | If convicted of Aggravated Domestic Battery, even |
| residence, even if the arrested person owns the | | | | without any prior criminal record, you are facing a |
| residence. | | | | mandatory state prison sentence under the State |
| The State Attorney Makes the Decision Whether to | | | | Criminal Punishment Code and possibly as much as 15 |
| Prosecute | | | | years in prison. |
| Truth be told, the State Attorney makes the | | | | Florida Law states that if a person has a previous |
| decision whether to prosecute a case in every | | | | conviction for domestic battery, even if there was a |
| instance. However, in a garden variety crime, such as | | | | withhold of adjudication, a subsequent conviction for |
| theft or a simple battery, under most circumstances, | | | | an act of domestic battery can be charged as a |
| if the victim doesn't want the State to prosecute | | | | felony with a maximum penalty of up to 5 years in |
| then usually that case is dropped. That is usually NOT | | | | prison. |
| the case when it comes to prosecuting domestic | | | | Impact on Divorce and Custody Cases |
| battery cases. If the alleged victim does not want | | | | An arrest or conviction for domestic violence can be |
| the case prosecuted, or is actually refusing to | | | | used to your detriment in a subsequent or pending |
| cooperate with the prosecution, if the State | | | | divorce matter with the alleged victim especially if |
| Attorney believes there is sufficient evidence to | | | | there are children in the home and they have |
| proceed, they will do so. | | | | witnessed the alleged acts of domestic violence. |
| Serious Consequences and Penalties | | | | Impact on the Ownership, Use, or Possession of |
| Cannot Seal or Expunge a Domestic Violence Case | | | | Firearms |
| Resolved with a Guilty or No Contest Plea | | | | Florida Law requires the suspension of your |
| Like just about everything else involving domestic | | | | concealed weapons permit if you are arrested for an |
| violence cases, entering a plea to any charge labeled | | | | act of domestic violence. |
| as "domestic violence" carries potentially serious | | | | FEDERAL LAW prohibits a person convicted of an |
| consequences down the road. These consequences | | | | act of domestic violence from using, owning or |
| may not be readily apparent at the time of the plea. | | | | possessing a firearm. |
| For instance, I have seen as a former prosecutor and | | | | Conclusion |
| now as a defense attorney, people in jail at the "first | | | | Once the phone call is made to law enforcement for |
| appearance" hearing after they have spent a night in | | | | a domestic violence case, Florida Law is going to take |
| jail on a simple misdemeanor domestic battery arrest. | | | | over and these cases are not taken lightly. If you are |
| Perhaps it is their first arrest ever. They are scared; | | | | arrested for any act of domestic violence you should |
| perhaps hungry; have no money with them at that | | | | take it as seriously as the State of Florida. |