Adjudication Withheld | Collateral Consequences

May 30, 2016 by
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 and when you need a rehab center, go to this agency.  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 says Covington DUI Attorney.  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, in this case you could use a PNW packable backpack to carry all your important things.

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.

Filed Under: Adjudication Withheld, Criminal Lawyer, Florida Legislature, Sentencing Tagged With: , , , , , , , , , , , , , , , , , , , , , , ,

Restraining Order Florida Law

April 30, 2016 by
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

Filed Under: Civil Law, Dating Violence, Domestic Violence Injunctions, Ex Parte Restraining Order, Order of Protection, Repeat Violence, Restraining Order, Sexual Violence, Stalking, Temporary Restraining Order Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Circumstantial Evidence

April 4, 2016 by
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

Filed Under: Burden of Proof, Circumstantial Evidence, Criminal Lawyer, Direct Evidence, Evidence, Jury Instructions, Trial Tagged With: , , , , , , , , , , , , , , ,

Aggravated Battery | Felony Battery

February 9, 2016 by

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

Filed Under: Aggravated Battery, Assault and Battery, Battery, Criminal Lawyer, Domestic Battery, Domestic Violence, Felony Battery, Misdemeanor Battery, Simple Battery Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Drug Court | Broward County Drug Court Treatment Program

February 7, 2016 by
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.

Filed Under: Chapter 893, Criminal Lawyer, Drug Court, Drugs, Legislation, Possession of Drug Paraphernalia, Possession of Marijuana, Sentencing Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , ,