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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

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

Circumstantial Evidence

Circumstantial Evidence

Strong Circumstantial Evidence

What is Circumstantial Evidence

Evidence in a criminal trial can be either direct or circumstantial.  Circumstantial evidence is dependent upon inference, logic and/or reasoning to reach a conclusion of fact.  Direct evidence is a direct observation of fact that does not need any further thought to reach a factual conclusion.  The difference between direct and circumstantial evidence is best shown by example.

Direct evidence – Witness “A” testifies that she saw her husband in bed with another woman.

Circumstantial evidence – Witness “A” testifies that she saw a three pack of condoms in her husband’s suitcase after he returned from a business trip and that there were only two condoms left.

In either instance, a reasonable person could arrive at the conclusion the husband is in a lot of trouble.  Most criminal defendants try to avoid generating direct evidence.  As such, criminal trials tend to have substantial amounts of circumstantial evidence.

Other general examples of circumstantial evidence include forensic evidence.  A fingerprint at a crime scene can be very damaging evidence.  DNA evidence in rape cases and murder cases.  Odontological evidence was important in the trial of Ted Bundy.  Odontological evidence has proven to be reliable in identifying dead bodies.

Use of Circumstantial Evidence

There is a widespread misconception in the general public that circumstantial evidence is somehow weaker than or less than direct evidence.  This can actually work to the advantage of the defense when the State’s case is based entirely on or mostly on circumstantial evidence.  Make no mistake about it, people can and do get convicted based on circumstantial evidence alone.

Due to this widespread misconception, a clear and concise jury instruction on circumstantial evidence tends to favor the prosecution.  An example of a well drafted jury instruction on circumstantial evidence is found in North Carolina Pattern Jury Instruction 104.05 which states:

“The law makes no distinction between the weight to be given to either direct or circumstantial evidence.  Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence.  You should weight all of the evidence in the case.  After weighing all of the evidence, if you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find the defendant not guilty.”

This jury instruction is typically favorable to the prosecution because it brings the issue of circumstantial evidence to the attention of the jury and specifically instructs the jury that circumstantial evidence is no different than direct when it comes to reaching a verdict.  It is my experience that most jurors are not comfortable convicting an individual based solely on circumstantial evidence unless the circumstantial evidence is overwhelming.  Without the jury instruction on circumstantial evidence, jurors tend to give it less weight which typically works to the benefit of the defendant.

Florida Jury Instruction on Circumstantial Evidence

The Florida Supreme Court eliminated the circumstantial evidence jury instruction in 1981.  The reason that the Florida Supreme Court eliminated the jury instruction on circumstantial evidence was because it suggested that the law treats circumstantial evidence differently than direct evidence.  In order to justify the elimination of jury instruction on circumstantial evidence, The Florida Supreme Court cited to Holland v. United States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954).  In Holland, the United States Supreme Court stated:

“Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both the jury must use its experience with people and events in weighing the probabilities. “

Circumstantial Evidence in Criminal Trials

Circumstantial evidence is still evidence.  It is treated no differently than direct evidence.  A jury is required to consider all admissible evidence when deliberating.  The amount of weight that the jury gives to each piece of evidence is for the jury to decide.  The law does not require a jury to disregard or give less weight to circumstantial evidence.  In fact, quite frequently, the circumstantial evidence in a case can be more convincing than the direct evidence.

Ft. Lauderdale criminal attorney, Michael Dye, has extensive experience handling cases involving complex forensic evidence including. For more information concerning your specific situation, please contact us at:

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

Violation of Probation

Violation of Probation

Florida Criminal Law

What Happens if I Violate Probation?

Violation of probation proceedings are expedited.  Nevertheless, there are several Car Accident to a violation of probation proceeding. The proceedings typically go in the following order:

1) Charges & Report;
2) Custody and Terms of Release;
3) Discovery;
4) Hearing and Disposition.

What is a Violation of Probation?

If you were placed on probation, the sentencing court gave you a set of rules. Those rules are the terms of probation. There are certain standard rules, but the Trusted Wills Oxford can customize the terms for your particular case.  You do not have to break the law to violate probation. All you have to do is break the rules. For example, the terms of probation for your case might give you a curfew of 10 o’clock. It is not illegal to be out past 10 PM, but it would be a violation of your probation.

I. Charges & Report

Affidavit of Violation of Probation

Your probation officer will file an affidavit of violation of probation if he has probable cause to believe that you violated the terms of your probation. If this is a felony violation of probation, the affidavit is called the “Florida Department of Correction Affidavit of Violation of Probation.”  The affidavit will contain the allegations stating how you violated the terms of probation. The affidavit will typically be filed with the same judge that presided over the original sentencing.

Violations of probation are either technical or substantial.

What is a technical violation of probation?  Breaking the rules.  Examples would include a positive drug test, failure to pay costs of supervision or any failure to abide by the rules.

What is a substantial violation of probation? A new criminal charge.

Violation of Probation Report

Your probation officer will also file a report with the affidavit of violation. The report can request that the court issue a warrant for your arrest or that the court issue a notice to appear. The violation report will also contain significant information such as any statement that you made regarding the alleged violation.  The violation report will also contain your history of supervision, the facts and circumstances surrounding the underlying case. Most importantly, the report contains the probation officer’s recommendation concerning the disposition of your case.

II. Custody and Terms of Release

The violation report filed by your probation officer will request that a warrant be issued for your arrest or that you be given a notice to appear.  The judge will typically issue a “no bond” warrant if a warrant is requested.  It is not uncommon for defendants to stay in jail for two(2) or three(3) months waiting for their violation of probation hearing.  Quite often the fear of having no bond drives individuals to abscond or hide in order to avoid going to jail. This just makes the problem worse.  Contacting a private attorney immediately is your best option as there are ways to minimize or eliminate the amount of time you spend in jail waiting for your final hearing.

III.  Discovery

Discovery is typically limited in violation of probation cases.  More often than not your attorney will have most of what they need to know based after reading the violation report.  If the violation is a technical violation of probation, i.e., breaking the rules, then there is typically no need for extensive discovery.  If the violation is a substantial violation, i.e., a new criminal charge, your attorney will get the discovery in the new case.

IV. Hearing & Disposition

In a violation of probation proceeding, you do not enter a plea of guilty or not guilty. Rather, you either admit responsibility or deny responsibility. If you deny responsibility, there is a hearing. A violation of probation hearing is heard by a judge. You do not have a right to a jury trial. The rules of evidence are relaxed. Hearsay is generally permitted. Also, the burden of proof is lower.  The state does not have to prove the violation “beyond a reasonable doubt,” rather, the state must present evidence “sufficient to satisfy the conscious of the court.” That is a long way of saying “by the preponderance of the evidence.” If the state meets the burden of proof the judge will find you responsible for the violation of probation.

Sentencing

The judge has three options when faced with a violation of probation. The judge can revoke probation and sentence you to any sentence which could have been legally imposed on the original criminal charges.  For example, if you are on probation for a third degree felony, the judge can sentence you to five(5) years for a violation of probation. The judge can modify the terms of probation.   The court can add conditions such as drug rehab, counseling or an ankle monitor.  Alternatively, the judge can reinstate your probation on the exact same terms as before.

Getting a private attorney involved early can have a substantial impact on the disposition of your probation case.  Typically, a private attorney can talk to the probation officer, prosecutor and set the hearing on a calendar quickly to get a resolution.  Additionally, a private attorney can file a motion for an in court surrender and/or get a bond hearing quickly.  The advantage of hiring a private attorney over a public defender is that a private attorney can get to work on your case before you are charged with a probation violation.  A public defender can only be appointed and get to work once you have been charged.  It is a matter of being proactive vs reactive.

In addition to the procedural aspects, a private attorney can help you gather the documents and/or evidence necessary to establish your defense in the event that you proceed to a final violation of probation hearing. It is much easier to obtain evidence before you go into custody.

Fort Lauderdale criminal defense attorney, Michael Dye, has extensive experience handling misdemeanor and felony violations of probation.  For more information concerning probation violation proceedings, 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