As Saint Petersburg, Florida domestic violence attorneys, we often get asked many of these questions below. We have taken some of our most frequently asked questions and over the next few weeks will be answering these.
Table of Contents
What Is The Florida Statute 741.28 And The Difference Between Battery And Domestic Violence?
Florida Statute 741.28 covers Domestic Violence and basically means any type of battery, assault, sexual offense, stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death. The difference between battery and domestic violence is that battery is between stranger or an acquaintance and whereas it’s a family or household member, it is domestic violence. Domestic violence can occur between a boyfriend/girlfriend, husband/wife, mother/son or it can be two people living together in a romantic or family relation.
Is Domestic Violence Or Battery Seen A Great Deal In Divorce Cases?
In every divorce case, there tends to be heightened emotions. In divorce case, lawyers do tend to see not just domestic battery and violence but they also notice uptakes in things such as stalking and violation of injunctions.
How Serious Are Domestic Violence Allegations?
Domestic violence itself really depends on the charge. Domestic violence can be as simple as a second- degree misdemeanor assault, domestic assault to a misdemeanor battery, going all the way up to a very serious felony charge that can lead to lifetime imprisonment. The offender can also be held in jail without bond, as the domestic division in Pinellas County tends to be very strict. In case the Defendant is not allowed to have contact with the victim but violates the court order, the judge can hold them in contempt, or even order the Defendant in jail without bond.
Can You Contact Your Spouse, Partner, Or Children After An Arrest?
Almost immediately after the arrest, even on the first appearance, the judge can prevent the suspect from contacting their spouse, partner or children. Even if this offender is released by the judge after an appearance in front of him/her, the judge will usually order “No contact with the alleged victim”, meaning in most cases, the spouse, family member or partner. In cases where the victim is their own child, the offender will not be able to contact with them. Many times, the judge will allow one supervised visit, usually with the sheriff’s office or deputy, so the suspect can pick up a few belongings, but they will have to leave the house.
For more information on Domestic Violence and Battery in Saint Petersburg, Florida, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling the law office of Blake & Dorsten P.A. at (727) 286-6141 today.
What Is The Difference Between Assault, Battery, And Domestic Violence?
What Are The Differences Between Assault, Battery, And Domestic Violence Or Do They All Fall Under The Same Category?
Domestic violence can be assault or battery; domestic violence is just an act that is done against a spouse, a former spouse, an adult related by blood or marriage or even somebody who has a child in common.
An assault is an intentional, unlawful threat by word or act to do violence to another coupled with the ability to do so, creating fear that violence is imminent. In other words, if somebody shows their fist and says, “I’m going to hit you” and take a swing at them, even if they miss, that is assault.
Can A Verbal Threat Fall Under Domestic Violence Charges By Any Chance?
A verbal threat by itself can qualify as a domestic assault, as long as it is coupled with the ability to carry out the threat. For example, if someone says, “I’m going to punch you” and is close to you with his fists swinging your way, that is an assault. However, if someone says to you over the phone, “I am going to punch you and then I am taking the kids from you”, that by itself does not go to the level of domestic assault.
As for the definition of battery, this is the actual unlawful touching or striking of another person, so assault is just the fear of being hit, whereas the battery is the actual hit or strike itself.
What Would Make A Charge Of Assault Or Battery Becoming Aggravated? What Does Aggravated Assault Or Aggravated Battery Actually Mean?
Simply put, an aggravated battery is a battery with either a deadly weapon or “great bodily harm”. You can be charged with an aggravated battery with a deadly weapon such as a bat, stick, firearm, or a knife. A battery can also be enhanced If the victim was pregnant and the defendant striking her, knew or should have known that she was pregnant. Finally, depending on the damage that is done to the victim, a battery can be enhanced to an aggravated one if the victim suffers severe injury, great bodily harm, permanent disability or disfigurement.
Taking the example of a simple punch to explain the difference between the battery and aggravated battery – if a person punches somebody in the cheek, that’s battery; if the person punches somebody in the cheek and it breaks their jaw and they had to go to the emergency room, because the act gave them great bodily harm, that is potentially an aggravated battery. With an aggravated battery, the charge goes from a third degree to second- degree felony, punishable by up to 15 years in prison!
Aggravated assault is just an assault with a deadly weapon. For example, if someone points a firearm at somebody threatening to shoot them, that is an aggravated assault and a very serious felony.
What Makes A Charge Under Domestic Violence Either A Misdemeanor Or A Felony?
There are specific courtrooms in almost all the areas of Florida like Pinellas, Hillsborough, Pasco and along the Gulf Coast of Florida that deal strictly with domestic violence. What makes a misdemeanor or felony domestic charge is the allegations itself.
As mentioned before, if a person threatens to punch somebody, that’s an assault. If they actually punch somebody, that becomes a battery. If the defendant punches or hurts somebody they are living with, married to or have a child in common, that’s where it becomes domestic battery versus battery.
Does An Alleged Victim Actually Need To Be Injured For A Charge To Be Made?
No, that is not necessary. Under certain cases like assault, you don’t actually need an injury. Even a simple battery needs no injury. You don’t need injuries for a charge to be filed.
For more information on Domestic Violence, Battery and Assault in Clearwater, Florida, contact the law office of Blake & Dorsten P.A. for a free initial consultation at (727) 286-6141 today.
What Mistakes Do Clients Make During Either The Investigation Or During Or After The Arrest That Can Potentially Hurt Their Case?
A big mistake made during the police investigation is thinking, “Oh, if I just get my side of the story out right now, the police will just see it’s a big misunderstanding”, or, “If I just tell them oh I accidentally laid the hand on her, he’ll understand and I’ll walk away without an arrest”, or, “I’ll walk away and I’ll be fine”, that hardly ever works out.
Domestic violence allegations are one of the rare misdemeanor charges where the police do not have to witness a crime occurring to make an arrest. When you admit to a battery or assault, you are doing the officer’s job for them. You just gave them a reason to arrest you. Also in the heat of the moment, many times during the police investigation, you may be nervous and say or admit to things that didn’t occur. Once you give the police an admission or confession, it is very difficult for the jury or state attorney to believe your innocence.
As far as the immediate post-arrest phase is concerned, a big mistake is making house calls from the jail to the victim and talking about what did or did not occur. These calls are always recorded and state attorneys love listening to those videos because it gives them a lot of incriminating statements.
Finally, post-arrest, a big no-no is if the judge says, “You cannot have contact with the victim even if the victim initiates contact”. Time after time, the defendant will make contact or have a friend see how the victim is doing. That is a big no-no that will always get you in trouble and can often result in additional charges or immediate jail time.
What Should You Do If The Alleged Victim Is Reaching Out To You And Either Trying To Say They’re Sorry Or Wanting to Retract The Allegation? Is There Anything That Someone Who’s Been Accused Can Do To Protect Themselves?
Absolutely. One thing to note is that the victim cannot be ordered by the court to refrain from contacting the suspect. The judge has jurisdiction over the defendant only and not the victim. If the victim tries to contact you, be polite, but don’t take the call! Be polite but walk away if the victim approaches you. If you see the victim entering a restaurant that you are seated at, you need to stand up and walk out of the restaurant. Even if the victim is like, “Hey I really need your help. Hey, we’re moving this weekend and I need your help.” You cannot engage the victim and you cannot even explain why you can’t speak to him/her. Let your Criminal Defense Attorney speak on your behalf!
What Are The Penalties If Someone Is Convicted In One Of These Types Of Cases?
It depends on the type of charges you’re facing. A misdemeanor domestic battery is a first-degree misdemeanor that’s punishable by up to 12 months’ probation or 365 days in a county jail. Certain other charges such as aggravated battery or aggravated domestic battery, a second-degree felony, are punishable by up to 15 years in prison. The punishment can greatly vary depending on the underlying charge. It can be anywhere from probation to counseling all the way up to prison.
Under What Circumstances Can Assault And Battery Cases Result In Both Criminal And Civil Personal Injury Cases?
Every once in a while, attorneys get both criminal and civil cases coming from the same event. In a criminal case, once the charges are filed, the state of Florida is considered the victim in the case and they take over the prosecution. In civil cases, a victim can ask for an injunction against contact from the suspect as well as personally suing the defendant for injuries, both emotional and physical injuries. The victim can sue for actual monetary damages such as hospital bills etc.
Can Someone Be Cleared Of The Criminal Charges And Still Face The Civil Suit?
Yes. A criminal charge has a higher burden of proof, which is beyond a reasonable doubt. A civil charge has a much lower standard of proof because no one’s freedom is at stake. The perfect example of this is O.J. Simpson’s criminal case. Criminally he was found not guilty. At his civil trial, he was found responsible in a wrongful death suit and ordered to pay millions of dollars.
How Often Can The Prosecution Introduce Evidence Of A Client’s Past Domestic Violence Charges?
Generally, the rule is they can’t. However, there are some special circumstances in which someone’s past domestic violence allegations can be entered into evidence, and in such cases, the client “Opens the door”. In certain scenarios, the prosecutor can impeach the defendant about his/her past domestic violence actions to prove that he may not be forthcoming or honest about the past.
In other cases, if the past includes a felony conviction or a crime involving dishonesty, those prior convictions can also be used by the prosecutor to impeach the individual in the courtroom by asking them how many felonies have they had and certainly a prior felony domestic violence conviction can be used to impeach or call in the credibility of that witness.
For more information on Assault, Battery and Domestic Violence in Florida, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling the law office of Blake & Dorsten P.A. at (727) 286-6141 today.