Claris Law Legal Blogging Community

Editor: Tampa Criminal Attorneys
Profession: Tampa Defense Attorneys

Category: Domestic Violence

A domestic violence charges requires special considerations. Before a domestic violence charge is resolved it travels through two different courtrooms. A domestic violence charge starts out in First Appearance Court, and then it is shifted to the specialized Domestic Violence Court. The First Appearance judge will address the issue of a bond within 24 hours of every type of criminal arrest. However, the unique concerns created by a domestic violence charge require the First Appearance Court judge to utilize a special protocol when addressing the issue of bond on this type of crimnial charge.

BOND?

Every defendant, understandably, has the same question after their arrest. When am I getting out? Every criminal defendant is entitled to have a reasonable bond set within 24 hours of their arrest. Some criminal charges have bond amounts assigned to them automatically, and it is possible to bond out before first appearance court. However, the Florida Legislature has mandated that every defendant arrested for an act of domestic violence be held in custody until he is brought before the first appearance judge that will set his/her bond.

VICTIM'S APPEARANCE AT FIRST APPEARANCE COURT

If your spouse or significant other is interested in seeing you released from the County Jail it is important for them to attend your bond hearing at first appearance court. Judge Walter Heinrich oversees first appearance court. If the alleged victim appears at first appearance court Judge Heinrich will be interested in asking her or him a number of questions. First, he warns the victim of the consequences of misrepresenting the truth when answering his questions. The judge is very aware that many victims come to court to recant their statement in the police report in an effort to get the defendant out of jail. Judge Heinrich will notify the victim of the dangers of lying to him (perjury, filing false police report). Once Judge Heinrich is confident that the victim understands his/her rights he will question the alleged victim about the facts of the case, and any concerns he might have about the victim's safety. If Judge Heinrich is confident that the defendant can be released without posing any danger to the alleged victim, then he will set a reasonable bond. However, usually the Judge will impose a number of pretrial conditions to the defendant's release. First, typically the judge orders the defendant to have "NO CONTACT" with the victim. This order is very important because of its impact on the defendant. If the defendant is married or resides with the victim (which is commonly the case) it means he cannot return to the marital home. The defendant is also prohibited from having any verbal or written contact with the victim. As long as this condition of pretrial release is in place it raises a number of other issues. Where does the defendant reside? How can he get some clothes and other items from his home while this condition of release is in place? There are a number of ways to address these issues, but the first step we take is to set a Motion to Modify Pre-Trial Release in front of Judge Nick Nazaretian in order to modify this particular condition to "No Violent Contact". Judge Nazaretian is the judge who will ultimately resolve the domestic violence charge, and he will take a deeper look into these issues. Remember, Judge Heinrich's courtroom has one purpose: To set a reasonable bond, and order conditions of pretrial release. He is not there to decide the facts of the Domestic Violence charge. If Judge Nazaretian feels the situation warrants the removal of the "NO CONTACT" condition he will permit the defendant to have contact. Usually it takes a few days to arrange this hearing. In the meantime we will counsel our client on what steps to take to stay in compliance with the Judge Heinrich's order and address their needs at the same time.

All things considered however, it is very important to have the alleged victim attend the defendant's bond hearing in front of Judge Heinrich? It prevents the judge from having to speculate about the facts of the case, or his concerns for the victim's safety. I do not mean to say that the victim's attendance in First Appearance Court is necessary to get a reasonable bond. It isn't. Judge Heinrich can set bond without hearing from the victim. Either way Judge Heirich will also ask the State Attorney questions about the defendant.

Does the defendant have a criminal past? If so, for what?

Does the defendant have a prior arrest for domestic violence? If so, did it involve the same victim?

DIVORCE OR BREAKUP WITH CHILDREN

If you have been arrested for a domestic violence charge and you are married or have children with the alleged victim there are a number of critical issues that need to be addressed immediately. This criminal charge may be a pre-emptive strike in a custody dispute that will be filed shortly after the defendant's arrest for domestic violence. If so, the decision to call the police may have been the result of a much more a premeditated plan than a call for help. A factor considered by every family law judge to determine custody or visitation is whether one of the parents has committed an act of domestic violence. F.S. 61.13. Likewise, another factor considered by the family law judge is whether "either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence..." Your spouse or former lover may have hired a lawyer before the arrest. The contrived domestic violence charge could have been at the direction of a divorce attorney. Shortly after the arrest the former spouse/alleged victim will file a Petition For a Domestic Violence Injunction in the Domestic Relations Court. If the Domestic Relations Judge gives the alleged victim an injunction against the husband you can be sure her lawyer will go running to the family law judge to complain that the father is a violent man who should have limited contact with his children. In addition, the imposition of a domestic violence injunction is another obstacle to returning to your home. A "no contact" order that flows from first appearance court, and domestic violence injunction are two separate court orders that must be overcome before you can return to your home.

If your spouse has fabricated a criminal charge in the interest of gaining an advantage in Family Court it becomes imperative to prevail not only on the criminal charge, but also on the petition for domestic violence injunction. This type of situation, unfortunately, is more common than you would think.

CAN MY CHARGE BE DISMISSED?

Can my domestic violence charge be dismissed? It depends on the nature of the facts. A number of questions need to be answered:

Is the victim cooperating? While the victim's cooperation with the defense is helpful, it does not necessarily mean that the problem is solved and a criminal lawyer is unnecessary. The State Attorney decides when, and when not to file charges. The victim might be confronted by Victim Assistance and/or the State Attorney assigned to the case to explain why their story has changed since the night of the incident. That is why it is critical to hire an experienced criminal attorney to address the sensitive issues surrounding this situation. Whether the victim is interested in going forward or not is in many ways a minor issue for the State Attorney (prosecutor). What matters most to the prosecutor is whether he or she feels they can prove the charge beyond a reasonable doubt. It is our job to convince the State Attorney and/or the Judge that the charge cannot be proven beyond a reasonable doubt. Whether the victim is cooperating or not you must address a number of other issues before you can determine whether the domestic violence charge will be dismissed short of trial

1) Was alcohol involved?
2) Who called 911?
3) Were there any injuries?
4) Were photographs of the injuries taken?
5) What is victim's motive to falsely accuse?

Domestic violence charges can be more complicated than they at first appear. Moreover, if you fail to vindicate yourself the ramifications (domestic violence injunction/custody dispute) can be far reaching.

For more information on domestic violence call us at 813-228-7095 or link to us at Tampa Criminal Attorney.