Domestic Violence

Domestic violence (“DV”) is a specific type of assaultive behavior directed toward members of a person’s family or household. It generally includes spouses, parents, children, romantic partners, step-family members, grandparents and grandchildren. Florida statutes closely define the type of relationships that fall under the DV umbrella:

“Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit. Fla. Stat. Section 741.28(2).

Under Florida’s DV statute, allegations of assault against a neighbor, platonic friend or co-worker cannot be categorized as domestic violence even if the parties maintain a close relationship.

The term domestic violence refers to several criminal acts when committed against any of the above-listed family members. You may face domestic violence penalties as a result of committing the crimes of offensive touching, menacing, sexual harassment, trespass, criminal mischief, sexual assault, terroristic threatening or reckless endangerment. In other words, if the prosecution can demonstrate that you committed these crimes against a family member, the penalties and sentence may be enhanced under applicable domestic violence laws.

If you have been arrested for a domestic violence charge, the procedure may seem confusing and intimidating. It is important at this stage that you speak to a criminal defense attorney who can help you through the process. Often times, DV cases rely heavily on testimonial evidence (the sworn statements of witnesses in court.) Therefore, even if you have done NOTHING WRONG, it is often not the best practice to discuss your side of the story with the police, especially without counsel present. If you have been arrested for DV, the police should have probable cause to believe you committed a crime. Their job now is to investigate and obtain evidence of this crime, and anything you say can (and likely will) be used against you!

Therefore, if you have been arrested for a DV crime and you are being interrogated by the police, you should again CLEARLY assert your right to remain silent, and CLEARLY request to speak to an attorney (saying something such as “maybe I should speak to an attorney” may not be enough to unambiguously invoke your rights.) At this point the officer must cease questioning. If you do not clearly request to speak to an attorney, the officer may resume questioning at a later time, so you should make it clear that you wish to exercise both your right to remain silent and your right to an attorney. Michigan v. Moseley, 423 U.S. 96 (1975).

If you have been arrested for a crime of domestic battery, the Judge will likely issue a “no-contact” order as a condition of any pre-trial release. A no-contact order prohibits you from having any contact, direct (this includes through texts, phone calls or e-mails) or indirect (although indirect contact has not been clearly defined it includes asking a third-party to contact the alleged victim) with the alleged victim. If you have a child in common with the alleged victim, the Judge may appoint an appropriate third-party to have contact for the “sole purpose of facilitating the defendant’s contact with the children.” Your defense attorney, however may have contact with the alleged victim. Your attorney cannot relay any messages from you to the victim, but they can investigate the circumstances of your case, and determine the alleged victim’s position on moving forward.

The penalties for violating a no-contact order are serious. The violation of a no-contact order is classified a first-degree misdemeanor. Fla. Stat. 741.29. That means it a separate criminal charge, that carries its own criminal penalties (up to one year in jail, one year of probation, and $1,000.00 in fines). In addition to the separate criminal penalties, your bond may be revoked, and you will then be held in jail awaiting trial. Further, violations of a no-contact order are “stackable” offenses. If you are repeatedly found in violation of a no-contact order, you could face years in prison. It is therefore important to discuss any no-contact orders with your criminal defense attorney who may be able to get the order terminated or modified.

Modification of a no-contact order generally occurs by motion of the defense to Modify Conditions of Release. During a motion to Modify Conditions of Release, the Judge will ask you and the alleged victim a series of questions to determine if modification of the order is appropriate. Some of these questions include:

• Are there any prior incidents of domestic violence between you and the defendant?
• Did you call the police? If not, why? Who called for you?
• Would you/ will you call the police again if you feel threatened unsafe?
• Does the defendant have any prior record?
• Are you scared of the defendant?
• Do you wish to have contact with the defendant?
• Have you/ has the defendant attempted to violate the no contact order?

These questions will be sworn and heard in front of the Court. You and the alleged victims’ answers could be used against you during your criminal case, so it is important to thoroughly discuss with your defense attorney whether modification of the order is in the best interest.

Penalties for Domestic Violence

Charges for domestic violence crimes are varied, and depend upon a number of factors including the method of the battery (e.g., strangulation, using a weapon, etc.), the severity of the injury, and the age or condition of the individual (e.g., the alleged victim is a child, pregnant woman, elderly, etc.).

Generally, however, without the aforementioned aggravators, domestic violence battery is classified as a first-degree misdemeanor punishable by up to one year in jail, one year probation, and a $1,000.00. If you are facing charges for domestic violence battery, Florida statutes require additional penalties in addition to the standard punishments. Chapter 741, Florida Statutes.

The additional require DV penalties include:

• You must complete a 26-week Batterer’s Intervention Program (BIP). (See options for BIP in the 12th Judicial Circuit serving Sarasota, Manatee, and DeSoto Counties here.) Fla. Stat. 741.281
• Additional community service hours
• Loss of rights regarding owning and carrying firearms
• Imposition of an injunction or ‘no contact’ order

If there is bodily injury associated with the battery, 10 days required jail time for a first offense, 15 for a second offense, and 20 for a subsequent offense.  Section 741.283, Florida Statutes

If you have been convicted of a DV charge, you will not be able to have this record sealed or expunged, even if the adjudication was withheld (a withhold of adjudication means you can legally say you have not been convicted of a crime.). If you have been arrested for DV, the record of your arrest for a DV charge may only be expunged if that arrest was dropped. Therefore, if you plead to or are found guilty of any domestic violence charge, this offense will always remain on your criminal record.

Given the life-altering nature of a domestic violence conviction, it is imperative that you retain an experienced criminal defense attorney who can work to protect your freedom and relationship with your family. If this is your first time facing criminal charges and your history is clear of other felonies and misdemeanors, your attorney may be able to obtain leniency for you as a first-time offender, which could result in a dismissal of the pending charges.

If you have been charged with domestic violence, there are several potential defenses that may be available to you. These defenses can be complex and require a thorough understanding of the law, so it is crucial to consult with an experienced criminal defense attorney.

Self-Defense or Defense of Others

If you can prove that you acted in self-defense or to protect another person from imminent harm, this can be a strong defense. The force used must be reasonable and proportionate to the threat faced. (Florida Statutes Section 776.012)

Stand Your Ground

Florida’s “Stand Your Ground” law allows individuals to use force, including deadly force, to defend themselves if they reasonably believe it is necessary to prevent death or great bodily harm. This defense can be applied in domestic violence cases, but it is important to note that it has specific requirements and limitations. (Florida Statutes Section 776.013)

Lack of Evidence or Insufficient Evidence

If the prosecution lacks evidence to prove the elements of the offense beyond a reasonable doubt, this can be a defense. This could include a lack of witnesses, inconsistencies in the alleged victim’s statements, or lack of physical evidence. (In re Winship, 397 U.S. 358 (1970))

False Accusations or Vindictive Accuser

In some cases, domestic violence allegations may be fabricated or exaggerated. If you can prove that the accusations are false or motivated by malice, this can be a strong defense. 

Lack of Intent

Some domestic violence offenses require a specific intent to harm. If you can prove that you did not have the required intent, this can be a defense. 

Other Defenses

There may be other defenses available depending on the specific circumstances of your case. These could include challenging the credibility of the alleged victim, arguing that you were acting under duress, or presenting evidence of mental illness or intoxication. 

It is important to note that the success of any defense will depend on the specific facts and circumstances of your case. An experienced criminal defense attorney can help you evaluate the potential defenses available and develop a strong defense strategy tailored to your situation.

Battery is defined under Florida Statute Section 784.03 as:

1. Actually and intentionally touching or striking another person against the will of the other; or
2. Intentionally causing bodily harm to another person.

Under Florida Statutes Section 741.28, domestic battery occurs when the battery is committed by one family or household member against another family or household member. 

Under Florida Statutes Section 741.28, domestic violence is defined as 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. 

Statistics on Domestic Violence

While domestic violence can affect anyone, regardless of gender, statistics show that women are disproportionately victimized compared to men. 

According to the National Coalition Against Domestic Violence (NCADV):

• On average, nearly 20 people per minute are physically abused by an intimate partner in the United States. During one year, this equates to more than 10 million women and men.

• 1 in 4 women and 1 in 9 men experience severe intimate partner physical violence, intimate partner contact sexual violence, and/or intimate partner stalking with impacts such as injury, fearfulness, post-traumatic stress disorder, use of victim services, contraction of sexually transmitted diseases, etc.

Important Considerations

These statistics represent reported cases of domestic violence. It is widely recognized that many cases go unreported due to fear, shame, or other factors. Domestic violence affects individuals of all genders, sexual orientations, and socioeconomic backgrounds.

Based on the standard jury instructions, to determine whether a defendant is guilty of domestic battery, the jury must consider several factors.

To prove the crime of Domestic Battery, the State must prove the following elements beyond a reasonable doubt:

Give 1 and/or 2 depending on the charging document:

1. (Defendant) actually and intentionally touched or struck (victim) against [his] [her] will.
2. (Defendant) intentionally caused bodily harm to (victim).

Additionally, the State must prove the following element beyond a reasonable doubt:

1. At the time of the offense, (victim) was a [family or household member] [domestic partner] of (defendant).

Intentional bodily harm: This means the defendant purposefully caused physical injury to the victim.

Domestic battery can be classified as either a misdemeanor or a felony based on certain conditions:

Misdemeanor Domestic Battery:

• First-time Offense: Typically charged as a first-degree misdemeanor. Florida Statutes Section 784.03(1)

Felony Domestic Battery:

• Prior Convictions: Elevated to a third-degree felony if the defendant has a prior conviction for battery, aggravated battery, or felony battery. (Florida Statutes § 784.03(2) specifies the elevation to a felony for repeat offenses).
• Domestic Battery by Strangulation: Automatically a third-degree felony under Florida Statutes § 784.041(2)(a).
• Aggravated Battery: Causes great bodily harm, permanent disability, or permanent disfigurement, or uses a deadly weapon. Florida Statutes § 784.045(1)(a) details the criteria for aggravated battery as a felony.

Additionally, a first-degree misdemeanor domestic battery charge can be upgraded to a felony when the victim is 65 years of age or older. This enhancement is due to the increased vulnerability of elderly individuals and the potential for more severe harm.

According to the Florida Statute Section 784.08, when a person 18 years of age or older commits a battery upon a person 65 years of age or older, and the offender knew or should have known the victim’s age, the offense is reclassified from a misdemeanor of the first degree to a felony of the third degree.

Implications of Felony Upgrade

The upgrade to a felony charge carries significant consequences, including:

• Increased Penalties: Felonies are punishable by more severe penalties than misdemeanors, including longer prison sentences and higher fines.
• Criminal Record: A felony conviction will remain on the offender’s criminal record permanently, impacting future employment, housing, and other opportunities.
• Loss of Rights: Felony convictions can lead to the loss of certain civil rights, such as the right to vote or own a firearm.

Enhanced Sentencing: A felony conviction can also lead to enhanced sentencing for any future offenses.

During a domestic battery call/arrest, the police are primarily looking for evidence to establish probable cause for an arrest and to determine the severity of the situation. This includes:

Evidence Collection

Visible Injuries: Police will carefully observe, look for, and document any visible injuries on the alleged victim and suspect, such as bruises, cuts, or other marks that could indicate physical violence. They may also take photographs of these injuries. Florida Statute Section 741.29, requires law enforcement to document any visible injuries.

Witness Statements

Victim and Witness Accounts: Officers will interview the alleged victim, the suspect, and any witnesses present to gather information about what occurred. They will ask about the events leading up to the incident, the details of the alleged battery, and any past instances of abuse. 

Presence of Weapons

Weapons on Scene: If any weapons or objects that could be used to cause harm are present at the scene, police will secure them as potential evidence. 

Other Evidence

Other Physical Evidence: Police may collect other physical evidence from the scene, such as torn clothing, damaged property, or bloodstains, to corroborate witness statements and establish a timeline of events. In addition, signs of a struggle, such as overturned furniture or broken items, are noted.

By gathering this information, police can make an informed decision about whether to arrest the suspect, what charges to file, and what steps to take to protect the alleged victim. It’s important to note that even if there is no visible injury, a domestic battery arrest can still be made if there is sufficient evidence of a crime.

Law enforcement officers generally follow a mandatory arrest policy for domestic violence incidents under certain conditions. This means that law enforcement officers are legally obligated to make an arrest when they have probable cause to believe that an act of domestic violence has occurred. Probable cause can be established through various means, such as visible injuries, witness accounts, and the responding officer’s observations.

The mandatory arrest policy aims to remove the alleged abuser from the situation promptly, ensuring the immediate safety of the victim and preventing further harm. It’s important to note that this policy applies even if the victim does not wish to press charges, as the primary goal is to protect the individual from potential further abuse.

No-Drop Policy 

In addition to the mandatory arrest policy, Florida also enforces a “no-drop” policy in domestic violence cases. This means that once an arrest has been made and charges have been filed, the victim cannot simply decide to drop the charges. The decision to pursue or dismiss the case rests with the prosecutor.

The no-drop policy is designed to address the complexities of domestic violence situations. Victims often face pressure, manipulation, or fear of retaliation from their abusers, which can lead them to recant their initial statements or refuse to cooperate with the prosecution. By removing the victim’s ability to drop charges, the no-drop policy aims to protect them from further harm and ensure that abusers are held accountable for their actions.

Prosecutors in domestic violence cases play a crucial role in upholding the no-drop policy and seeking justice for victims. They carefully evaluate each case, considering factors such as:

• Severity of the offense: The nature and extent of the violence inflicted on the victim.
• Victim’s safety: Assessing the risk of continued or escalating abuse if the perpetrator is not prosecuted.
• Available evidence: Evaluating the strength of the evidence to determine the likelihood of a successful conviction. 

Based on these factors, prosecutors decide whether to move forward with the case or dismiss it. While the victim’s wishes are taken into consideration, they are not the sole determining factor. The primary concern is the safety and well-being of the victim, along with ensuring that justice is served.

Overall, Florida’s mandatory arrest and no-drop policies in domestic violence cases reflect a commitment to protecting victims and holding perpetrators accountable. These policies recognize the unique challenges and complexities of domestic violence situations and strive to create a safer environment for those affected by abuse.

When you get arrested for domestic violence, you will not be released immediately. Instead, you must appear before a judge in a hearing called First Appearances, which must occur within 24 hours of your arrest. Unlike other charges where bond can be posted immediately, individuals arrested for domestic battery are initially held without bond. This “No Bond” status means you cannot be released until a judge reviews your case.

Cooling Off Period

There is a “cooling off period” for domestic violence arrests. During this period, the arrested individual must appear before a judge before a bond can be set. This is to ensure a thorough investigation and reduce the risk of immediate re-offense. During this time, the state will:

• Conduct a detailed background check on the arrestee.
• Attempt to contact the victim.
• Prepare to discuss these findings with the judge. 

Preparing for the First Appearance Hearing

At the First Appearance hearing, the judge will read the arrest affidavit prepared by the arresting officer. This document must establish “probable cause” that a crime was committed and that the defendant is likely the perpetrator. An attorney can challenge the affidavit by pointing out any weaknesses, although judges typically find probable cause. Following this, the judge will set the bond amount according to a pre-determined bond schedule.

Conditions of Pre-Trial Release

Judges are particularly cautious with domestic violence cases due to the potential for further incidents. They often issue “no contact” orders, which prohibit the defendant from contacting the victim in any form—no texting, calling, or emailing. If the defendant and the victim lived together, the defendant must find alternative living arrangements. Child visitation must be arranged through a third party.

In addition to monetary bond, judges may order the defendant to be supervised by the Pre-Trial Services Unit (find out more here), which involves regular check-ins and possibly wearing a GPS monitor. These conditions are aimed at ensuring the safety of the victim and any other individuals at risk.

Posting the Bond and Getting Released

Once the judge sets the bond, the release process begins. This process can take several hours. If the judge orders electronic monitoring, the defendant must wait until they are fitted with the device.

Understanding these procedures is crucial for navigating the aftermath of a domestic violence arrest. The initial “no bond” period is temporary, and the First Appearances hearing is the first step towards resolving the situation. Knowing what to expect can help in preparing for the hearing and ensuring that all necessary steps are taken for a smooth legal process.

By comprehending these steps and requirements, individuals and their families can better navigate the legal complexities following a domestic violence arrest. This understanding ensures that the rights of the accused are protected while prioritizing the safety and well-being of the victim and any other involved parties.

Under Florida law, a person who commits an act of domestic violence battery or any other domestic-related crime of violence is ineligible to have his or her record expunged. This is because of the classification of domestic violence as a dangerous crime under Florida law, and dangerous crimes are ineligible to be expunged (Florida Statutes Section 943.0584, Florida Statutes Section 943.0585, and Florida Statutes Section 943.059).

Sealing vs. Expungement

• Sealing: Hides a criminal record from public view but it is still accessible to law enforcement and certain government agencies.
• Expungement: Physically destroys a criminal record, making it as though the arrest and/or conviction never happened. 

Exceptions

The only exception to this rule is if the domestic battery charge was dismissed or you were found not guilty. In such cases, you may be eligible to have the arrest record sealed or expunged.

Remember

Even if your record is sealed or expunged, certain entities, such as law enforcement agencies, schools, and licensing boards, may still be able to access it.

If you have been convicted of a domestic violence offense, it is important to consult with an attorney to understand your options and potential consequences.

In Florida, individuals convicted of domestic violence are often required to participate in mandatory intervention programs as part of their sentence or probation. The primary program is the Batterer’s Intervention Program (BIP).

Batterer’s Intervention Program (BIP)  

Florida Statute 741.281 mandates that individuals found guilty of, having adjudication withheld on, or pleading nolo contendere to a domestic violence crime (the defendant does not admit guilt but also does not dispute the charges against them) must attend and complete a batterer’s intervention program.

BIP is a 26-week program designed to address the root causes of domestic violence and teach alternative behaviors to prevent future violence. The program focuses on:

• Identifying and addressing patterns of abusive behavior
• Developing anger management and conflict resolution skills
• Learning about the impact of domestic violence on victims and families

Participants are typically required to attend weekly group sessions led by trained facilitators. The program is overseen by the Florida Department of Children and Families.

Find your local Batterers’ Intervention Program here. 

Additional Intervention Programs

While BIP is the primary program, courts may also order additional intervention programs based on the specific circumstances of the case. These may include:

• Substance abuse treatment programs (if substance abuse is a contributing factor)
• Mental health counseling (if mental health issues are present)
• Parenting classes (if children are involved)
• Anger management courses

These additional programs aim to address underlying issues that may contribute to domestic violence and provide individuals with the tools and support they need to make positive changes.

It is important to note that the specific programs and requirements may vary depending on the jurisdiction and the individual’s circumstances. An attorney can provide guidance on the specific programs available in your area.

Domestic battery by strangulation in Florida is defined under Florida Statutes Section 784.041(2)(a). It involves knowingly and intentionally impeding the normal breathing or circulation of the blood of a family or household member or a person with whom the perpetrator is in a dating relationship, by applying pressure on the throat or neck or by blocking the nose or mouth.

Elements of the Crime:

1. Intentional Act: The act must be intentional.
2. Impediment: The act must impede normal breathing or blood circulation.
3. Relationship: The victim must be a family or household member or in a dating relationship with the perpetrator.

In Harris v. State, the Court additionally recognized that the strangulation happens when the offender applies pressure on the throat or neck or by blocking the nose or mouth in violation of Florida Statute Section 784.041(2)(a). Further, the statute merely requires that a defendant impede the victim’s breath, not cut it off entirely. The state need not present evidence that the victim became unconscious or suffered injury based on lack of circulation. Evidence that the victim’s “normal breathing” was impeded is sufficient.

See also Lopez-Macaya v. State, (“[T]he State need not prove great bodily harm to establish the crime of domestic battery by strangulation; instead, the State can prove this crime by establishing defendant’s actions created a risk of great bodily harm.”) Thus, the state merely needs to show only the “risk” of great bodily harm.

Based on the standard jury instructions, to convict for domestic battery by strangulation, the State must prove:

1. The defendant knowingly and intentionally impeded the victim’s normal breathing or blood circulation against their will by applying pressure to the throat/neck or blocking the nose/mouth.
2. This act created a risk of or caused great bodily harm.
3. The defendant and victim were family/household members or in a dating relationship.

Definitions:

• Dating Relationship: A significant romantic/intimate relationship.
• Great Bodily Harm: Significant harm beyond minor injuries.

Domestic murder, often referred to as domestic homicide, involves the killing of a family or household member by another family or household member. These cases are treated under the broader categories of homicide laws but have specific implications and considerations due to the domestic context.

First-Degree Murder: Premeditated killing, including domestic situations, is classified as first-degree murder (Florida Statutes § 782.04).

Second-Degree Murder: Killing with a depraved mind, but without premeditation, can also involve domestic relationships.

Domestic murder is classified under homicide statutes with specific considerations due to the relationship between the parties involved.

Dating violence in Florida is defined as violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature (Fla. Stat. § 784.046(1)(d)).

A dating relationship is determined based on three criteria:

1. The relationship existed within the past six months. 
2. The nature of the relationship was characterized by the expectation of affection or sexual involvement between the parties.
3. The frequency and type of interaction must include that the persons have been involved over time and on a continuous basis during the course of the relationship.

Protection Against Dating Violence

Florida law allows individuals who are victims of dating violence to seek an injunction for protection against dating violence, similar to those available for domestic violence victims (Fla. Stat. § 784.046(2)).

Legal Remedies

A court may issue an injunction to prevent the respondent from committing any acts of dating violence, to order the respondent to participate in treatment or counseling, and to provide the petitioner with temporary custody of any shared children, among other reliefs.

Pretrial release from a domestic violence charge in Florida refers to the release of a defendant from custody while awaiting trial for domestic violence charges. This can occur through various means such as posting bail, or being released with certain conditions. 

Conditions of Pretrial Release

Conditions of pretrial release are intended to protect the alleged victim and can include no contact orders, restrictions on travel, mandatory check-ins, and other measures deemed necessary by the court (Fla. Stat. § 741.29). Violation of these conditions can lead to revocation of pretrial release and potential incarceration.

Violating a condition of pretrial release, such as a no contact order, can result in additional charges and penalties, including revocation of pretrial release and immediate arrest.

Judges consider several factors when determining the conditions of pretrial release, including the nature of the alleged offense, the defendant’s criminal history, and the potential risk to the victim and the community.

Violating a condition of pretrial release from a domestic violence charge is a serious offense in Florida. Based on the standard jury instructions, to secure a conviction, the State must prove the following four elements beyond a reasonable doubt:

1. Arrest for Domestic Violence

• The defendant was arrested for committing an act of domestic violence.

2. Pretrial Release Conditions

• Before the trial, the defendant’s release on the domestic violence charge was granted with specific conditions set according to Fla. Stat. § 903.047.

3. Knowledge of Conditions

• The defendant was aware that a condition of their pretrial release was imposed.

4. Willful Violation

• The defendant willfully violated that specific condition of pretrial release.

Violation Scenarios

A violation of a “no contact” order can occur if the defendant:

• Has physical or violent contact with the victim or their property
• Is within 500 feet of the victim’s residence, even if it is shared
• Is withing 500 feet of the victim’s vehicle, place of employment, or other places frequented by the victim

In Florida, stalking is defined under Florida Statute Section 784.048. This statute outlines various forms of stalking and their corresponding penalties.

Stalking occurs when a person willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person. The key terms are defined as follows:

• Harass: Engaging in a course of conduct directed at a specific person that causes substantial emotional distress and serves no legitimate purpose.
• Course of Conduct: A pattern of behavior composed of a series of acts over time, evidencing a continuity of purpose. This does not include constitutionally protected activities like protests.
• Cyberstalk: Using electronic communication to cause substantial emotional distress to a specific person and serve no legitimate purpose.

A person committing these actions is guilty of a first-degree misdemeanor, punishable by up to one year in jail and fines​.

Aggravated Stalking 

Aggravated stalking includes the basic elements of stalking but involves additional aggravating factors such as:

• Making a credible threat with the intent to place the victim in reasonable fear of death or bodily injury.
• Stalking after a court-issued injunction for protection against violence.
• Stalking a child under 16 years of age.

Aggravated stalking is classified as a third-degree felony, punishable by up to five years in prison, five years of probation, and fines​.

Penalties and Legal Consequences

Penalties for stalking can vary based on the severity and specific circumstances of the offense:

• Misdemeanor Stalking: Up to one year in jail and fines up to $1,000.
• Aggravated Stalking: Up to five years in prison, five years of probation, and fines up to $5,000.

Furthermore, the court may issue restraining orders prohibiting any contact with the victim, which can last up to ten years, depending on the case’s specifics​.

Cyberstalking is defined by statute as a pattern of behavior using electronic communication to harass, intimidate, or cause substantial emotional distress to a specific person.

Florida Statute 784.048(1)(d) defines cyberstalking as engaging in a course of conduct to communicate, or to cause to be communicated, directly or indirectly, words, images, or language by or through the use of electronic mail or electronic communication, directed at or pertaining to a specific person; or accessing, or attempting to access, the online accounts or Internet-connected home electronic systems of another person without that person’s permission, causing substantial emotional distress to that person and serving no legitimate purpose.

Key Elements of Cyberstalking:

Course of Conduct: This means a pattern of behavior over time, not just a single incident.

Electronic Communication: This includes emails, text messages, social media posts, or any other form of digital communication.

Directed at a Specific Person: The communication must be aimed at a particular individual.

Substantial Emotional Distress: The victim must experience significant emotional harm as a result of the cyberstalking. 

No Legitimate Purpose: The perpetrator’s actions must not serve any valid or justifiable reason.

Examples of Cyberstalking:

• Sending threatening or harassing emails or text messages.
• Posting harmful or embarrassing information about the victim online.
• Creating fake social media profiles to impersonate the victim.
• Hacking into the victim’s online accounts.
• Using GPS tracking devices to monitor the victim’s movements.

Legal Consequences of Cyberstalking

Under Florida law, cyberstalking is a first-degree misdemeanor. However, it can be enhanced to aggravated stalking, a third-degree felony, if the perpetrator makes a credible threat to the victim (Florida Statute Section 784.048).

Domestic Violence Injunctions

An injunction is an order from the court that legally requires the subject of the injunction (the respondent) to NOT do something. In the case of a DV injunction, this will likely involve no contact with the alleged victim. However, the Judge can order any action that is believed necessary to ensure the safety of the alleged victim. The safety of the alleged victim is the foremost concern of the Court in a DV case, and rulings will often be on the side of caution.

The alleged victim requesting the injunction (the petitioner) will fill out a form and file it with the appropriate clerk of court (the appropriate place to file is where the petitioner lives, where the respondent lives, or where the alleged act of domestic violence took place).

The Judge will then review the petition and take into consideration all relevant facts. From the Florida Supreme Court’s Family Petition for Domestic Violence Injunction Instructions here are some relevant factors to be considered:

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.

After the Judge reviews the facts of the surrounding the petition, he or she will determine if the allegations in the sworn affidavit show an imminent danger of domestic violence, or that the petitioner was a victim of domestic violence (shown by “competent substantial evidence.”)

In domestic violence situations, the chief concern is for the alleged victim’s safety, and in determining whether the facts show an imminent danger of domestic violence, the Judge will err on the side of caution. Therefore, it is less likely that the Judge will deny the petition outright. However, the allegations must rise to the level of “immediate and present” danger. Florida Statute 741.30. For example, the petitioner, John Doe, alleges that he should be granted a DV injunction. He alleges in his affidavit that the respondent said something along the lines of “if you keep bugging me, you may someday regret it.” The respondent has not previously caused harm or threatened to cause harm to John Doe or anyone close to him, and has no criminal history. Here, the judge may not find that this vague comment rises to the level of immediate and present danger of domestic violence to John Doe.

If the Judge does find that the petitioner was the victim of domestic violence or there is an imminent danger of domestic violence, he or she will issue an ex-parte (ex-parte means the judge only considers one-side- the allegations of the petitioner) temporary injunction against domestic violence. The respondent will likely not have the opportunity to be present or tell their side of the story prior to the granting of a temporary injunction. Once the temporary injunction is granted, the judge will set a date for hearing on a final injunction. In the interim, once the respondent is served with the injunction (if you have not been properly served the injunction process cannot go forward), the respondent will be required to have no contact with the alleged victim. No contact means NO CONTACT (including any calls, text messages, social media messages or asking a third-party to reach out the alleged victim on your behalf), and the injunction is violated, the respondent could face separate criminal penalties. The temporary injunction will be valid for 15 days or until the final hearing (whichever is sooner) unless good cause is shown for an extension of time.

The final hearing is an evidentiary hearing, which means that the respondent and petitioner will both have an opportunity to be in attendance and present evidence in support of their case. Witness testimony, text messages, voicemail, videos, photos, and call logs can all be used as evidence. While it is not required for you to have an attorney present at a final injunction hearing, you will be allowed to have an attorney there to assist you and make arguments on your behalf. While the rules of evidence are somewhat more lenient in an injunction hearing, it is still a serious judicial procedure and having effective counsel to assist you can make a large difference in the outcome.

The plaintiff in a domestic violence injunction case must prove, by a preponderance of the evidence, that:

1. They are a victim of domestic violence or
2. They have reasonable cause to believe they are in imminent danger of becoming a victim of domestic violence.

Preponderance of the evidence means that the evidence presented is more convincing or likely than not. It is a lower standard of proof than “beyond a reasonable doubt,” which is used in criminal cases. See: Rollins v. Rollins, 336 So. 3d 1241 (Fla. 5th DCA 2022); Dickson v. Curtis, 338 So. 3d 1001 (Fla. Dist. Ct. App. 2022).

To meet this burden, the plaintiff typically presents evidence such as:

• Testimony: The plaintiff’s own account of the abuse or threats.
• Witnesses: Testimony from others who witnessed the abuse or threats.
• Police reports: Any reports filed with law enforcement.
• Medical records: If the abuse resulted in injuries.
• Photos or videos: Any documentation of the abuse or threats.

The judge will consider all the evidence presented and decide whether it is more likely than not that the plaintiff has been a victim of domestic violence or is in imminent danger of becoming one. If the judge finds that the plaintiff has met their burden of proof, they will issue a domestic violence injunction.

It is possible to get a domestic violence injunction dismissed, but it requires following specific legal procedures. Here are the steps and considerations involved:

Filing a Motion to Dismiss

To have a domestic violence injunction dismissed, the respondent (the person against whom the injunction was issued) must file a motion to dismiss with the court. This motion should articulate the reasons why the injunction should be lifted.

Grounds for Dismissal

The court will consider several factors when deciding whether to dismiss an injunction. These can include:

• Lack of evidence of ongoing threat or harm
• Mutual agreement by both parties to dismiss the injunction
• Changes in circumstances that negate the need for the injunction

Hearing for Dismissal

The court will usually schedule a hearing to consider the motion to dismiss. During this hearing, both the petitioner (the person who requested the injunction) and the respondent will have the opportunity to present their arguments and evidence. (Fla. Stat. § 741.30).

Burden of Proof

The burden of proof lies with the respondent to show that the circumstances that justified the injunction no longer exist or that it is no longer necessary for the protection of the petitioner. (Fla. Stat. § 741.30(6)).

Mutual Agreement

If both parties agree that the injunction is no longer necessary, they can jointly file a stipulation for dismissal. This mutual agreement can make it easier for the court to decide in favor of dismissal. 

Impact of Violation

If there have been any violations of the injunction by the respondent, this can negatively impact the likelihood of the court dismissing the injunction. Courts are less likely to dismiss an injunction if there is a history of non-compliance. 

Temporary vs. Permanent Injunctions

Temporary injunctions are generally easier to dismiss than permanent ones. If the injunction was initially granted on a temporary basis, it may be possible to argue that the conditions justifying a permanent injunction are not met. 

Modification of Injunction

In some cases, it may be more practical to seek a modification of the injunction rather than a complete dismissal. This can include modifying the terms to allow for certain types of contact or changing the distance restrictions. 

It is highly recommended to seek legal representation when attempting to dismiss a domestic violence injunction. An experienced attorney can help navigate the legal process, prepare the necessary documentation, and present a strong case in court.

Modifying an injunction for domestic violence means changing the terms or conditions of the existing court order. This could involve removing certain restrictions, adding new ones, or adjusting the duration of the injunction.

There are several reasons why someone might want to modify a domestic violence injunction:

• Change in Circumstances: The circumstances that led to the injunction being issued may have changed. For example, the parties may have reconciled, or the respondent may have completed anger management or counseling programs.
• Unfair Restrictions: The existing injunction may impose restrictions that are overly burdensome or no longer necessary. For example, a no-contact order may prevent parents from communicating about their children.
• New Information: New information may come to light that warrants a modification. For example, the petitioner may have made false accusations, or the respondent may have evidence of their innocence.

It is important to note that modifying a domestic violence injunction is a legal process that requires filing a motion with the court and attending a hearing. The judge will consider the evidence and arguments presented by both parties before deciding whether to grant the modification.

The modification of an injunction for domestic violence typically involves the following process:

1. Motion to Modify: The party seeking to modify the injunction (either the petitioner or respondent) files a motion with the court requesting the modification. This motion should state the reasons for the requested change and provide any supporting evidence.
2. Hearing: The court schedules a hearing to consider the motion. Both parties have the opportunity to present evidence and arguments for or against the modification.
3. Judicial Consideration: The judge considers several factors when deciding whether to modify the injunction, including:

• Whether there has been a substantial change in circumstances since the injunction was issued.
• Whether the modification is necessary to protect the petitioner or respondent.
• Whether the modification is in the best interests of any children involved.

4. Decision: The judge issues a ruling on the motion, either granting or denying the modification. If granted, the judge will issue an amended injunction reflecting the changes.

It is important to note that the specific procedures and requirements for modifying a domestic violence injunction can vary depending on the jurisdiction and the specific circumstances of the case. It is always advisable to consult with an attorney for guidance on the process and potential outcomes.

Violating an injunction for protection against domestic violence in Florida is a serious offense with significant legal consequences. The specific penalties depend on the circumstances of the violation and whether there are prior violations.

Under Florida Statute 741.31, willfully violating an injunction (e.g., refusing to vacate shared dwelling, going near the petitioner, committing domestic violence, contacting the petitioner, coming near the petitioner’s vehicle, destroying property, or not surrendering firearms) is a first-degree misdemeanor, punishable by:

• Up to one year in jail
• Up to one year of probation
• A fine of up to $1,000

A third-degree felony applies if the violator has two or more prior convictions for violating injunctions against the same victim. If a person has two or more prior convictions for violating an injunction against the same victim, a subsequent violation can be charged as a third-degree felony under Florida Statute 741.31. This offense is punishable by:

• Up to five years in prison
• Up to five years of probation
• A fine of up to $5,000

If a willful violation is found, the court must require the respondent to attend a batterers’ intervention program unless there is strong evidence for an exception. 

Additionally, victims who suffer injury or loss due to a violation of an injunction may be awarded economic damages, including costs and attorneys’ fees for enforcement of the injunction.

Defenses to Violation of Injunction Charges:

While the penalties for violating a domestic violence injunction are severe, there may be potential defenses available. These could include:

• Lack of knowledge of the injunction
• Invalid or unenforceable injunction
• Accidental or unintentional violation
• False accusations

It is crucial to consult with an experienced criminal defense attorney if you are facing charges for violating a domestic violence injunction. They can assess the specific facts of your case, advise you of your legal options, and develop a defense strategy tailored to your situation.

In cases where a defendant is accused of violating an injunction for protection against domestic violence, the jury receives specific instructions to guide their decision-making process. These instructions (can be found here) aim to clarify the elements of the offense and the burden of proof required for a conviction.

To establish guilt, the State must prove two key elements beyond a reasonable doubt:

• A temporary or final injunction for protection against domestic violence was issued by a court against (defendant) for the benefit of (victim).

• The first element requires proof that a court issued a temporary or final injunction for protection against domestic violence against the defendant, specifically benefiting the alleged victim.

• (Defendant) willfully violated the injunction by (alleged violation* of section 741.31(4)(a)). 

1. • The second element requires proof that the defendant intentionally and knowingly violated the terms of the injunction. This violation could involve any prohibited act specified in the injunction, such as contacting the victim, going near their residence or workplace, or committing further acts of domestic violence.

The term “willfully” in this context means that the defendant acted intentionally, deliberately, and on purpose, rather than accidentally or due to a misunderstanding.

If the alleged violation involves the defendant committing an act of domestic violence, the jury will be provided with the legal definition of “domestic violence” as per Florida Statute 741.28(2).

Additionally, if the defendant is found guilty of violating the injunction, the jury may be asked to determine whether the defendant has been previously convicted two or more times of violating an injunction against the same person. This determination is crucial because repeat violations can lead to enhanced penalties, such as felony charges.

A stalking injunction in Florida is a legal measure designed to protect individuals from stalking behaviors. The relevant statute for stalking injunctions is Florida Statute Section 784.0485, which outlines the process and requirements for obtaining such an injunction.

Filing for a Stalking Injunction

To file for a stalking injunction, the petitioner must submit a sworn petition detailing the stalking incidents. The petition should include:

1. Personal Information: Addresses of both the petitioner and the respondent, as well as physical descriptions and known places of employment.
2. Details of Stalking Incidents: Specific allegations of stalking, including dates, locations, and descriptions of the incidents. This may involve threats, harassment, physical abuse, or damage to personal property.
3. Previous Legal Actions: Any previous attempts to obtain injunctions against the respondent, including case numbers and outcomes if available (Florida Statute § 784.0485).

Court Process and Temporary Injunction

Upon filing the petition, the court will schedule a hearing. The respondent must be served with the petition, notice of the hearing, and any temporary injunctions granted. Temporary injunctions can be issued ex parte (without the respondent present) if the court finds evidence of immediate danger.

Temporary injunctions are effective for up to 15 days, pending a full hearing. During the full hearing, both parties can present evidence and testimony. If the court finds that stalking has occurred, it can issue a permanent injunction with various protective measures, such as:

• Restraining the respondent from further stalking.
• Ordering the respondent to attend treatment or counseling.
• Providing any other necessary protections for the victim, including directives to law enforcement (Florida Statute § 784.0485).

Enforcement and Violation

Violating a stalking injunction is a serious offense. According to Florida Statute § 784.0487, any violation of an injunction for protection against stalking or cyberstalking can result in criminal charges and penalties. Law enforcement officers are authorized to arrest violators without a warrant if they have probable cause to believe the injunction has been violated.

According to Florida Statute Section 784.0487, violating a stalking injunction in Florida carries serious consequences, including criminal charges and potential jail time. 

First Violation: Typically charged as a first-degree misdemeanor, punishable by up to one year in jail and a fine of up to $1,000.

Second Violation: If convicted twice for violating the injunction, a subsequent violation will be charged as a third-degree felony, punishable by up to five years in jail and a fine of up to $5,000.

Enforcement: Law enforcement officers have the authority to arrest individuals who violate a stalking injunction based on probable cause. The victim can also file an affidavit with the court detailing the violation, which can lead to further legal action.

In Florida, the violation of an injunction for protection against stalking or cyberstalking is a serious offense with potentially severe consequences. To secure a conviction, the State must prove specific elements beyond a reasonable doubt, ensuring that the rights of both the accused and the victim are upheld. Understanding the elements of this crime is crucial for both legal professionals and individuals seeking protection under the law.

According to the standard jury instructions, to prove the crime of Violation of an Injunction for Protection Against [Stalking] [Cyberstalking], the State must prove the following two elements beyond a reasonable doubt:

1. An injunction for protection against [stalking] [cyberstalking] was issued by a court against (defendant) for the benefit of (victim).
2. (Defendant) willfully violated the injunction by: 

Give as alleged.*

1. Going to, or being within 500 feet of, (victim’s) residence, school, place of employment, or a specified place frequented regularly by (victim) and any named family members or individuals closely associated with (victim).
2. Committing an act of stalking against (victim).
3. Committing any other violation of the injunction through an intentional unlawful threat, word, or act to do violence to (victim).
4. Telephoning, contacting, or otherwise communicating with (victim), directly or indirectly, unless the injunction specifically allows indirect contact through a third party. 
5. Knowingly and intentionally coming within 100 feet of (victim’s) motor vehicle, whether or not that vehicle is occupied.
6. Destroying (victim’s) personal property, including (victim’s) motor vehicle.
7. Refusing to surrender firearms or ammunition if ordered to do so by the court.

“Conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.

A plea of nolo contendere, or no contest, is not an admission of guilt or innocence, but an agreement to any punishment given by the court as if a guilty plea had been entered.