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Broward County Restraining Order

Broward County Restraining Order

Broward County Restraining Order

How to Get a Restraining Order in Broward County

I wrote about Florida restraining orders in general in 2016.  Click on this link to read the prior post: How to get a restraining order in Florida.  This article is titled Broward County Restraining Order.  It focuses on the specific steps needed to obtain a restraining order in Broward County.  It includes the locations and some general instructions.

Disclaimer

I would like to initially state that I have and continue to represent both Petitioners and Respondents in restraining order proceedings.  I am a criminal defense attorney so I typically defend individuals in restraining order hearings.  Any honest attorney will tell you that the majority of injunctions filed are either gross exaggerations or outright fabrications.  There are very few things that irritate me more than bogus restraining orders.  That is putting it mildly.  So, while I am giving instructions on how to proceed in order to obtain an injunction in Broward County, I hope this reaches somebody who really needs it as opposed to somebody who is going to use it as a tactical advantage in a divorce and/or custody proceeding.

Just a quick review of the basics to start.  There are five (5) different types of restraining orders available in Florida.  The relationship between the parties determines the proper injunction.  The individual requesting the restraining order is the petitioner.  The individual accused of the alleged misconduct is the respondent.  The following are the types of restraining orders available:

  1. Domestic Violence Restraining Order;
  2. Dating Violence Restraining Order;
  3. Repeat Violence Restraining Order;
  4. Stalking Restraining Order or Harassment;
  5. Sexual Violence Restraining Order.

Florida Restraining Order Requirements

As previously stated, I last time I wrote about restraining orders was in 2016.  An updated Domestic Violence Benchbook was published in 2017.  The benchbook is a good place to look for case law updates.  It also contains a variety of checklists, flowcharts, and worksheets.  You can use those to make sure that your work is thorough and accurate.

Domestic Violence Bench Book containing Florida restraining order requirements link: 2017 DV Benchbook

Broward County Restraining Order Procedure

The procedure for how to get a restraining order is fairly simple.  The petitioner goes to the domestic violence intake unit at the courthouse.  He or she completes the paperwork provided by the clerk of courts.  A judge reviews the petition and the supporting documents.  The court is permitted to enter an “ex-parte” temporary restraining order if the petition is legally sufficient.  What does this mean?  Legally sufficient means, based on the allegations as written, the court finds that there is an immediate and present danger if an injunction is not granted.  This means that the court can enter a temporary injunction without notice to the accused.  The injunction is granted based only on the allegations contained in the petition.  No proof and no hearing are required for the temporary injunction.

Broward County Restraining Order | Where do I File?

You can file for a restraining order at two locations in Broward County.  The main courthouse in Fort Lauderdale and the West Regional Courthouse in Plantation.  The addresses are as follows:

Main courthouse: 201 SE 6th St., Room # 02140, Fort Lauderdale, FL 33301.

The hours of operation are Monday to Friday from 8:30 am to 7:00 pm, but all filings must be completed before 5:00 pm.

West Regional Courthouse: 100 N. Pine Island Dr., Plantation, FL 33324

The hours of operation are Monday to Friday from 8:00 am to 4:30 pm, but all filings must be completed by 2:00 pm.

Hearing

The court will always set a hearing if a temporary injunction is granted.  Likewise, the court will usually set a hearing if the temporary injunction is denied.  The initial hearing is required to be set within 15 days of the initial order granting or denying the ex-parte petition.  The final hearings are held in the domestic violence division at the main courthouse in downtown Fort Lauderdale.

The final hearing is a trial by judge.  The Rules of Evidence apply.  Which bring us to the last point.

Restraining Order Attorney

If the restraining order proceeding is important to you, hire an attorney.  You are much more likely to obtain a good result.  You don’t want to lose your case because you don’t know how to properly enter an item or statement into evidence.

Fort 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

Aggressive Criminal Lawyer or Intelligent Criminal Lawyer

Aggressive Criminal Lawyer

Aggressive Criminal Lawyer and Street Certified Bad Ass*

Searching for an Aggressive Criminal Lawyer

A Google search for “aggressive criminal lawyer” returns 9,780,000 results.  A Google search for “intelligent criminal lawyer” returns 651,000 results. Clearly, people associate the term “aggressive” with “good.”  Let’s rephrase that.  People confuse the term “good criminal lawyer” with “aggressive criminal lawyer.”  The two are not always the same.  Take a moment to think about this.  Would you rather have an aggressive criminal defense attorney or an intelligent criminal defense attorney? An intelligent criminal defense attorney knows when to be aggressive and also knows when to lay off.  An aggressive criminal defense attorney who is not intelligent is just a jerk.

Aggressive Marketing

Why do so many criminal defense attorneys call themselves aggressive?  It all comes down to money. Law firms are businesses.  Attorneys who run the law firms are businessmen.  Businessmen want to make money.  Businesses advertise using the keywords that people search.  More clicks, more clients. More clients, more money.

This post is a pretty good example.  The keyword, or phrase, I choose is “aggressive criminal lawyer.” I did not choose “intelligent criminal lawyer” because the word aggressive will get more clicks.   That is also why I repeat the phrase “aggressive criminal lawyer.”  The search engines will see this post as relevant to “aggressive criminal lawyer” and I will get more clicks.  However, while you are here, I figure I should tell you the truth.

Why People Want an Aggressive Lawyer

I’ve tried a lot of cases.  However, the majority of my cases do not go to trial.  It is that way for every criminal defense attorney. In the cases that go to trial, it is likely my client’s first and last trial experience.  Most of my clients have never seen a criminal trial outside of watching a 20-minute murder trial on Law & Order.  A lot of people form their opinions based on a fictional television show.

The media typical portrays effective criminal defense attorneys in a negative light.  The characters are rude, condescending, abrasive and otherwise jerks.  People have been taught that this is effective.  They want and even expect to see an attorney verbally pound on a state’s witness.  They think that an aggressive criminal lawyer will verbally beat on a witness until they get a “Perry Mason Moment.”  A “Perry Mason Moment” is when the defense attorney gives such a horrific verbal beatdown that the witness breaks down and confesses that he is the real culprit rather than continuing with the mental torment of the questioning.  It seems pretty cool on TV, but it doesn’t work.

How to Lose a Criminal Trial

The easiest way to lose a criminal trial is to make the jury hate you. The easiest way to make a jury hate you is to unnecessarily “beat up” on witnesses. You want the jury to see me as the most reasonable person in the room.

Some people are going to want an aggressive criminal lawyer no matter what I say.  I’ll give you the good news first.  There are plenty of attorneys who will give you what you want.  Now the bad news. Some of the worst cross-examinations I have ever witnessed ended with the client telling his lawyer “great job!”  Usually, the client heard the word “guilty” at the end of the trial.  Why did the client say “great job?”  Because the attorney was aggressive.  That is the same reason he was found guilty.  The jury hated the attorney because he was aggressive.  He was rude, condescending, abrasive, demeaning, belittling, sarcastic and otherwise a jerk.

Aggressive, Persuasive and Effective

There is a difference between aggressive and effective.  Persuasive is effective, aggressive is not.  An intelligent attorney knows the difference. Just because an attorney is not aggressive, in the traditional sense, doesn’t mean that he or she is going to roll over and play dead.    A persuasive attorney will win more cases than an aggressive attorney.

I am not alone in my thoughts.  While doing some research for this post, I came across a blog called Defending People.  We seem to have a similar opinion concerning the phrase “aggressive criminal lawyer.”   It is better for advertising than the courtroom.

Changing Your Approach

Any attorney who is looking to improve their cross-examination skills needs to read MacCarthy on Cross-Examination.  The author, Terence MacCarthy, teaches a simple, extremely effective method of cross-examination that can be used in any type of case and on any type of witness.  Mr. MacCarthy is widely regarded as one of the foremost experts on cross-examination and his book explains exactly why aggressive fails and persuasive wins.

Fort Lauderdale criminal attorney, Michael Dye, likes to think of himself as a reasonable and persuasive attorney.  Please note that his ex-wife’s opinion may differ.  Mr. Dye represents individuals charged with criminal offenses ranging from DUI to murder. 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.

* Credit for Picture: Miami Criminal Attorney Michael A. Haber, Esq.

Adjudication Withheld | Collateral Consequences

Adjudication Withheld

Adjudication Withheld

Florida Statute 948.01 gives the trial court discretion to “withhold adjudication” after imposition of a sentence of probation in felony cases.  You are supposedly spared the collateral consequences of a criminal conviction if adjudication is withheld.  There are several benefits to having adjudication withheld.  You can say that you have never been convicted of a crime on employment applications. Your keep your civil rights.  You are eligible to have your record sealed after you complete probation and pay all court costs and fines.  Having adjudication withheld would appear to be a “get out of jail free” card or a “free pass.”  However, a withhold of adjudication is not without collateral consequences.  Don’t let the following talk you out of accepting a withhold of adjudication.  Talk to your lawyer about the decision.  A withhold is almost always better than an outright conviction.

Adjudication Withheld -When You Can’t

The Florida Legislature has been slowly eating away at the offenses that qualify for a withhold of adjudication.  Adjudication cannot be withheld for a First Degree Felony.  Adjudication cannot be withheld in Second Degree Felonies unless one of the two following conditions is met:

  1. The prosecutor must file a written motion with the court requesting that adjudication be withheld; or
  2. The court makes written findings of fact that the facts and circumstances of the case warrant a withhold of adjudication.  In making this finding, the court is required to look to the criteria found in Florida Statute 921.0026.

Third degree felonies are typically eligible to have adjudication withheld.  However, if you have had adjudication withheld on two prior felony offenses, you are not eligible to get a withhold of adjudication.

The court is prohibited from withholding adjudication in certain criminal offenses.  You are not eligible to receive a withhold for the following offenses:

  • Florida Statute 784.07 – Assault or Battery of a Law Enforcement Officers, Firefighters, Emergency Medical Care Providers, Public Transit Employees or Agents, or Other Specified Officers;
  • Florida Statute 316.1935 – Fleeing or Attempting to Elude a Law Enforcement Officer; Aggravated Fleeing or Eluding;
  • Florida Statute 316.193 – Any criminal offense involving a violation of Florida’s Driving Under the Influence Statute.

This is not a complete list of specific exclusions. These are the statutes that I know off the top of my head.

Adjudication Withheld – When it Doesn’t Count

Sentencing Enhancements:

Although Florida Law authorizes a Judge to withhold adjudication in his/her own discretion, the Florida Legislature also instructs the court to disregard a withheld adjudication and treat it as a prior conviction for certain crimes.  A prior withhold for a driving while license suspended will be treated as a conviction in future driving while license suspended cases.  The same is true with a withhold in petit theft cases.

Federal Law:

Federal Law does not recognize a withheld adjudication.  There is no comparable provision under Federal Law.  If you received a withhold of adjudication in a felony case under Florida Law, you are a convicted felon under Federal Law.  While Florida Law permits an individual to own a firearm if adjudication is withheld, Federal Law does not.  So you can be charged federally for convicted felon in possession of a firearm notwithstanding the withhold.

The same is true with immigration.  Criminal convictions can have severe immigration consequences.  A withhold on a crime of “moral turpitude” can still result in deportation since Federal Law does not recognize a withheld adjudication.

Foreign Countries:

Foreign countries do not have to and, in my experience, typically treat a withheld adjudication as a criminal conviction.  Countries can and do refuse to grant tourist visas to individuals convicted of certain criminal offenses.  You can typically come and go as you please at the Mexican Border.  I don’t even remember somebody checking my ID most times that I went across the Mexican Border.  However, Canada is a bit different, meaning that they, sometimes, actually check your background.  People are regularly denied admission to Canada for misdemeanor convictions.  Canada may or may not honor the withhold.  If you have a withhold, it would be good idea would be to check to make sure you are admissible before you travel to a foreign county.

Ft. Lauderdale criminal attorney, Michael Dye, handles cases with complex sentencing issues.  Mr. Dye has been able to obtain favorable sentences for clients including downward departures, alternative sentences and numerous withheld adjudications.  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.

Aggravated Battery | Felony Battery

Aggravated Battery v. Felony Battery

Aggravated Battery vs Felony Battery

Aggravated Battery vs Felony Battery

Aggravated battery is always a felony, but felony battery is not always an aggravated battery.  Simple battery can be charged as felony battery under certain circumstances.

Battery Basics

Criminal battery can be either a misdemeanor or a felony.  So why would somebody get charged with misdemeanor battery as opposed to felony battery and vice versa?  You will need to know some definitions and some statutes in order to make the determination.  Those are all provided blow. However, this is how you will conduct the analysis: 1) is the battery simple or aggravated; 2) aggravated battery is always a felony; 3) if it is a simple battery, does the individual qualify for the felony enhancement due to his/her prior criminal record?; 4) if it is a simple battery, is the victim entitled to special protection by statute?

Battery Definition

Florida law separates the crime of battery into two categories.  Simple battery is typically charged as a misdemeanor, but can be charged as a felony under certain circumstances.  Aggravated battery is always charged as a felony.

Simple Battery Definition

Florida Statute 784.03 defines simple battery.  The offense of battery occurs when a person:

1. Actually and intentionally touches or strikes another person against the will of the other; or
2. Intentionally causes bodily harm to another person.

Aggravated Battery Definition

Florida Statute 784.045 defines aggravated battery.  A person commits aggravated battery who, in committing battery:

1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
2. Uses a deadly weapon.
Florida has also added a third way to commit an aggravated battery.
3. A person commits aggravated battery if the person who was the victim of the battery was pregnant at the time of the offense and the offender knew or should have known that the victim was pregnant.

Felony Battery

Aggravated battery is always a felony.  Aggravated battery is sometimes called “aggravated bat” or “agg bat” for short.  Simple battery, as defined in Florida Statute 784.03, is typically charged as a misdemeanor, but can be charged as a felony.  Simple battery can be charged as a felony if the defendant has a prior conviction for battery, aggravated battery or felony battery.

Simple battery can also be charged as a felony if the victim is in a certain class of individuals or the battery is particularly reprehensible.  An example of a classification enhancement would be battery on a law enforcement officer a/k/a battery leo.  An example of particularly reprehensible behavior would be throwing bodily fluids at a jail employee.  Please note that enhancement, covered in Florida Statute 784.078, covers all employees and not just the guards.

Domestic Battery | Domestic Violence Cases

Domestic battery does not qualify for an automatic felony enhancement.  Domestic battery is treated the same as any other battery although domestic cases are typically segregated into designated domestic violence courts for prosecution.  All this means is that the potential consequences for a domestic battery are the same as if it were any other person.  In reality, domestic battery, as well as all other domestic violence cases, are prosecuted much more harshly than other battery cases.

Felony Battery | Classifications

Simple battery can be charged as felony battery under certain circumstances.  All of the circumstances are set forth in Florida Statutes Chapter 784 so I will not include a direct link to each statute, but rather the entire chapter.

Florida Statute 784.03 – a prior conviction for battery, aggravated battery or felony battery enhances a simple battery charge from a misdemeanor to a felony.  It is important to note that a withheld adjudication counts as a prior conviction under this statute;

Florida Statute 784.07 – battery of law enforcement officers, firefighters, emergency medical care providers, public transit employees or agents, or other specified officers;

Florida Statute 784.074 – battery on sexually violent predators detention or commitment facility staff;

Florida Statute 784.075 – battery on detention or commitment facility staff or a juvenile probation officer;

Florida Statute 784.076 – battery on health services personnel;

Florida Statute 784.078 – battery of facility employee by throwing, tossing, or expelling certain fluids or materials;

Florida Statute 784.08 – battery on persons 65 years of age or older;

Florida Statute 784.081 – battery on specified officials or employees(sports officials and education officials);

Florida Statute 784.082 – battery by a person who is being detained in a prison, jail, or other detention facility upon visitor or other detainee;

Florida Statute 784.083 – battery on code inspectors;

Florida Statute 784.084 – battery of child by throwing, tossing, projecting, or expelling certain fluids or materials.

Ft. Lauderdale criminal attorney, Michael Dye, has extensive experience handling aggravated battery, felony battery and domestic battery cases through trial. For more information concerning aggravated battery and other battery 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

Drug Court | Broward County Drug Court Treatment Program

Broward County Drug Court

Drug Court Works

The Broward County Drug Court Treatment Program is a pretrial intervention program designed to break the cycle of drug addiction which is crippling the criminal justice system.  Broward County’s Drug Court program is the second oldest in the State of Florida and the third oldest in the nation.  Broward County’s drug court diversion program is divided into felony drug court and misdemeanor drug court.  The Broward County Circuit Court handles felony drug court while the County Court handles misdemeanor drug court.

Drug Court is an Alternative to Punishment

Florida Statute 921.002(1)(b) states that the primary purpose of criminal sentencing is to punish the offender and that rehabilitation is secondary to the goal of punishment.   While completing drug court is not easy, a defendant who completes either felony or misdemeanor drug court will typically be eligible to have his or her criminal record expunged.  Drug court puts rehabilitation first.  Accordingly, the concept of drug court appears to be at odds with Florida Statute 921.002(1)(b).  Nevertheless,  Broward County Drug Court has been in existence for 25 years.   There is no current legislative effort to put an end to drug court and, to the best of my knowledge, there never has been any effort to put an end to drug court.  The reason why there is no legislative push to end drug court is because it works.  Broward County’s Drug Court Treatment Program would have been eliminated long ago if had a high recidivism rate or allowed criminal behavior to continue unchecked.  As such, the legislature appears to have turned a blind eye to drug courts across the State of Florida.

Am I Eligible for Drug Court

Different Circuits have different rules.  In order to be eligible for Broward County’s Drug Court Treatment Program, you must be over 18, have no prior felony convictions and be charged with a second or third degree felony related to a purchase, attempted purchase or possession of a personal quantity of a scheduled controlled substance listed in Florida Statute 893.033.  Drug court is designed to assist individuals with drug problems not drug dealers.  Accordingly, any allegation of an intent to sell or deliver to another individual is typically disqualifying.

How do I get Drug Court

Individuals are screened for the drug court program beginning at the time of arrest.  A case is typically assigned to drug court by the intake attorney at the Office of the State Attorney.  If, for some reason, you qualify, but are not placed in drug court, your attorney can file a motion to transfer your case to drug court

Advantages of Drug Court

A conviction for possession of any type of illegal drug can have devastating consequences on an individuals future.  In the Broward County Drug Court Treatment Program, a defendant only waives his or her right to a speedy trial.  A defendant may be eligible to seal or expunge his or her criminal record upon successful completion of drug court.