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Restraining Order Florida Law

Restraining Order | Order of Protection | Domestic Violence | Stalking

5 Types of Restraining Orders In Florida

Filing a Restraining Order in Florida

Florida law provides for five (5) different orders of protection against violent conduct. The five (5) different orders of protection are, 1) domestic violence; 2) repeat violence; 3) dating violence; 4) sexual violence and 5) stalking.  An order of protection is more commonly known as a “restraining order.”  A restraining order is a type of injunction.

How to Get a Restraining Order

Restraining orders are filed at the clerk of the court. All solicitor are heard by the circuit court.  There is no cost to file a restraining order. The party filing the injunction is known as the “petitioner.”  The petitioner must determine what type of injunction should be requested.

The relationship of the parties typically dictates what type of petition is filed.  For more information on the different types of Florida Restraining Orders, click on this link: Florida’s Four Orders of Protection Against Violence.  This is an older article by the Florida Bar, but is still a good resource on Florida domestic violence law.  This article describes who can file an injunction, what type of allegations are required and the standard of proof for a final injunction.

Temporary Restraining Order

The first step in getting an injunction is to file a Petition.  The “Petitioner” is the individual requesting the injunction and the “Respondent” is who the injunction would be against. The Petition for Protection is simply the allegations. Domestic violence restraining orders are given a priority and are usually reviewed by a judge within a couple of hours.  The judge only reviews the petition for the legal sufficiency of the allegations. Essentially, this means the judge assumes that everything in the petition is true.  The court will issue a temporary injunction if the allegations would be grounds to issue a final injunction. A temporary restraining order is also known as an ex-parte restraining order.  The court does not make an effort to determine whether the allegations are true at this stage.  A return hearing must be scheduled within 15 days in order to comply with the Respondent’s right to due process.

Allegations

A petition must contain certain allegations in order to get a temporary restraining order.  The Petitioner must prove that the allegations are true by clear and convincing evidence in order to receive a final injunction.

  • Domestic Violence Restraining Order

    • Florida Statute 741.30 creates a cause of action for domestic violence injunctions;
    • This type of injunction is restricted to family and household members as defined in Florida Statute 741.28(3);
    • The Petitioner must allege that he or she is a victim of domestic violence which is specifically defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping a baby on a Baby Trend Expedition Jogger Stroller, false imprisonment, or any criminal offense resulting in physical injury or death”;
    • Alternatively, the Petitioner can allege that he or she is in imminent danger of becoming a victim of domestic violence;
    • The Petitioner only needs to allege one (1) act of domestic violence or explain why he or she is in imminent danger of becoming a victim of domestic violence;
  • Repeat Violence Restraining Order

    • Florida Statute 784.046 creates a cause of action for repeat violence injunctions;
    • A Petition for Protection Against Repeat Violence is used when the Respondent is not a family member. Common examples are co-workers, roommates, schoolmates and neighbors;
    • Florida Statute 784.046(1)(b) defines repeat violence as as “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”;
    • Violence is defined in 784.046(1)(a) 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.”
  • Dating Violence Restraining Order

    • Florida Statute 784.046 governs the issuance of injunctions against dating violence;
    • Dating violence is defined in Florida Statute 784.046(1)(d) as violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature”;
    • The parties must have been involved in a romantic relationship within the past 6 months in order to have standing to file a Petition for Protection From Dating Violence;
    • The standard for issuing a injunction prohibiting dating violence is the same as standard for an injunction against domestic violence.  One incident or a belief that dating violence is imminent is sufficient for a temporary injunction.
  • Petition for Protection Against Sexual Violence

    • Florida Statute 784.046 creates a cause of action for a Petition for Protection Against Sexual Violence;
    • Sexual Violence is defined by Florida Statute 784.046(1)(c) as “any one incident of Sexual battery, as defined in chapter 794;
      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; luring or enticing a child, as described in chapter 787; sexual performance by a child, as described in chapter 827; or 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”;
    • One act of sexual violence must have occurred prior to filing the petition.  There is no “imminent danger” provision for a sexual violence injunction;
    • The return hearing must be held within 15 days of the respondent’s release from incarceration if the respondent is in custody.
  • Stalking Restraining Order

    • Florida Statute 784.0485 creates a cause of action for an injunction for protection against stalking;
    • The term “stalking” is defined in Florida Statute 784.048;
    • The cause of action for an injunction for protection against stalking also includes cyberstalking.

Return Hearing

The “return hearing” is the trial.  The Petitioner is required to prove the allegations by clear and convincing evidence in order to get a final injunction.  The Florida Family Law Rules of Procedure apply  to the all of the injunctions listed above.  The Rules of Evidence apply during the return hearing.

How Long do Injunctions Last?

It is up to the court.  The court is permitted to grant a final injunction for a certain period of time or until further order of the court.  Courts tend to issue “permanent” restraining orders as opposed to a specific duration of time.  Either party can apply to modify the terms of the injunction at any time.

Do I Need a Lawyer for a Restraining Order?

All of the statutes listed above specifically authorize an individual to represent himself or herself.  Is that a good idea?  Absolutely not.  A party represented by an attorney definitely has an advantage over an individual without an attorney.

Ft. Lauderdale criminal attorney, Michael Dye, has experience prosecuting and defending civil domestic violence restraining orders and other injunctions.  For additional information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525

Assault and Battery | What is the Difference?

Assault and Battery

Assault and Battery

Assault & Battery is a Matter of Do or Do Not

The words assault and battery are often incorrectly used together to describe one criminal charge. For example, an individual on a television show might be arrested for “assault and battery.” In reality, assault is a criminal charge and battery is another. You cannot be convicted of assault and battery under Florida Law because the assault merges into the battery. You need to understand the common law definitions of both words in order to understand how an assault can “merge” into a battery.

What is Common Law?

According to the Miriam – Webster online dictionary, the simple definition of the phrase common law is “the laws that developed from English court decisions and customs and that form the basis of laws in the U.S.” A simplistic, yet very accurate, way to view common law is as the laws that the United States inherited from England.  So common law in the various states consists of the laws established by the English legal system until July 4, 1776.  The common law did not have published statutes and rules, but rather relied almost exclusively on custom and prior judicial decisions.

Louisiana is the only state that does not use English Common Law.  The United States purchased the land, including what is now known as the State of Louisiana, from France in 1803.  Not surprisingly, this real estate deal is known as the “Louisiana Purchase.” Louisiana adopted the Napoleonic Code as the basis for its law in 1812 due to its history as a French colony.  If you are an attorney and you ever run across a Louisiana state court decision while researching, just ignore it.

Common Law Definition of Battery

The common law definition of battery is “an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.”

Common Law Definition of Assault

Black’s Law Dictionary defines assault at common law as “the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact.” Since we know that battery is a harmful of offensive touching without the consent of the individual, an alternative definition for assault at common law is the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery.

Assault Merges into Battery

There is no such crime as “attempted battery.”  An attempt to commit a battery is an assault.  Likewise, battery is a successful assault depending on your point of view.  You can be charged with assault and you can be charged with battery, but not assault and battery.

For example, if you 1) throw a punch at somebody; 2) without lawful justification; 3) he or she sees you throw the punch; 4) he or she believes that the punch may connect; 5) but you miss, that is an assault under Florida Law.  If you 1) throw a punch at somebody; 2) without lawful justification and 3) you hit the person causing “harmful or offensive”contact, that is a battery under Florida Law regardless of whether the individual saw it coming.

Here is an easy way to look at it, Master Yoda told young Luke Skywalker “Do or do not……..there is no try.”  So if you DO hit somebody, it is battery.  If you DO NOT hit somebody, it is assault.

Florida Statute 784.03 | Florida Statute 784.011

Florida maintains the common law definitions for both battery and assault.  The Florida Statute defining battery is 784.03.  The Florida Statute defining assault is 784.011.  As you might imagine, punching somebody is a more serious offense that trying to punch somebody.  Accordingly, a first conviction for battery is a first degree misdemeanor.  A first conviction for assault is a second degree misdemeanor.  However, a second conviction for a battery is a third degree felony punishable by up to five years in prison.

Aggravated Assault | Aggravated Battery

Aggravated assault and aggravated battery are enhanced criminal offenses due to the circumstances surrounding the offense.  Aggravated assault is defined in Florida Statute 784.021.  Aggravated battery is defined in Florida Statute 784.045.  The “aggravating” factor is typically the use of a weapon.  For example, let’s say that you and your roommate are having an argument.  If you throw a punch at your roommate and miss, that is an assault.  If you swing a baseball bat at your roommate and miss, that is aggravated assault and, consequently, a felony.

Domestic Violence

A domestic violence criminal charge arises out of the same underlying statute.  Florida law does not attempt to distinguish victims by their relationships to the defendant.  However, most, if not all, Judicial Circuits administratively segregate cases involving domestic violence.  Domestic violence cases are typically conducted in their own separate courtrooms due to the unique issues that are often present in domestic violence cases.

Certain states do distinguish domestic violence cases from other violent crimes by statute.  For example, in North Carolina, Statute 14-33(d) states that an “assault”(modified common law definition to include battery), committed by a individual in a personal relationship with the victim, while in the presence of a minor is an A1 Misdemeanor as opposed to a Class 1 Misdemeanor.

Ft. Lauderdale criminal attorney, Michael Dye, has extensive experience handling assault charges, battery charges and domestic violence cases in both county and circuit court.  For more information concerning possession of marijuana and other drug charges, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Additional help for this post came from Palm Beach Domestic Violence Defense Attorney Matthew Konecky, Esq. and

Raleigh Domestic Violence Attorney Jane Weatherly, Esq.