Broward County Restraining Order

February 5, 2018 by
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

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

Decriminalization of Marijuana | Broward County

December 4, 2015 by
Decriminalization of Marijuana

Decriminalization of Marijuana in Broward               County, Florida

On November 10, 2015, the Broward County Commissioners passed ordinance number 2015-45. The recently passed ordinance gives police officers in Broward County the discretion to issue a civil citation in lieu of a misdemeanor criminal charge for possession of less than 20 grams of marijuana. Despite the language used to describe it, this ordinance is does not constitute decriminalization or the legalization of marijuana.

Is this Legalization of Marijuana?

No. Possession of less than 20 grams of marijuana is still illegal pursuant to Florida Statute 893.13 People are still getting arrested for misdemeanor possession of marijuana in Broward County every day.  A state criminal statute is superior to a municipal ordinance. The Broward County Commission does not have the legal authority to, and did not attempt to, invalidate Florida statute 893.13.

The Broward County ordinance does not “decriminalize” possession of marijuana.  Possession of any amount of marijuana is still illegal under federal and state law.  The recently passed ordinance does provide a discretionary noncriminal means of enforcement.  Police officers have always had broad discretion when making an arrest decision for misdemeanor possession of marijuana. The officer now has the option to charge misdemeanor possession of marijuana civilly as opposed to criminally.  Prior to the effective date of November 17, 2015, a police officer in Broward County had the following options when making an arrest decision for misdemeanor possession of marijuana:

  • Make a formal arrest and take the suspect to jail;
  • Issue a Notice to Appear for a misdemeanor criminal offense;
  • Confiscate the marijuana and take no further action.

Now that the ordinance is effective, a police officer in the exact same situation has a fourth option:

  • Make a formal arrest and take the suspect to jail;
  • Issue a Notice to Appear for a misdemeanor criminal offense;
  • Issue a civil citation for a violation of the Broward County Code;
  • Confiscate the marijuana and take no further action.

Not Decriminalization Not Legalization

In reality, nothing has changed. When someone is arrested for possession of marijuana, it is usually not the only criminal charge. Marijuana charges typically come in two’s. Possession of marijuana and possession of drug paraphernalia.  Somewhere back in time an unknown police officer came up with the idea that the plastic bag holding your marijuana could be charged as drug paraphernalia.  The Broward County ordinance does not address possession of drug paraphernalia. However, since possession of drug paraphernalia is a misdemeanor, the police officer has the discretion to simply not charge you at all.  The probability that you will be charged criminally for both possession of marijuana and possession of drug paraphernalia has a strong correlation to how big of a jerk you are to the police officer.

Odor of Marijuana | Automobile Exception

The outright legalization of marijuana would significantly curtail police action. The police regularly use the odor of marijuana as a basis to search a vehicle without a warrant.  That is known as the “automobile exception.”  The Broward County municipal ordinance does not overrule the automobile exception to the warrant requirement.  The police are still legally allowed to search your vehicle if they smell marijuana coming from the inside of the vehicle.

Below is a copy of the ordiance number 2015-45.  Visit https://www.municode.com for the complete Broward County Code.

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2015/12/Broward-County-Municipal-Ordinance-2015-45.pdf” save=”1″]

Broward County criminal defense attorney, Michael Dye, has extensive experience handling misdemeanor and felony violations of probation.  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

Filed Under: Chapter 893, Civil Citation, Civil Law, Criminal Lawyer, Decriminalization, Drugs, Legalization of Marijuana, Municipal Code, Possession of Drug Paraphernalia, Possession of Marijuana Tagged With: , , , , , , , , , , , , , , , , , , , , ,

How Can I Drop Domestic Violence Charges?

October 8, 2015 by
How Can I Drop Domestic Violence Charges?

Can I Drop Domestic Violence Charges?

Domestic Violence Charges

This question typically comes up in one of two ways. First, the victim of domestic violence will call to speak with an attorney and say that he or she does not want to press charges. Second, the defendant will call and tell the attorney that his or her significant other does not want to prosecute the case. When you need an attorney website, reach out for web design palm springs.

It is easy to get jaded after hearing these questions time after time and the individual speaking to you once an explanation for every answer you provide. A domestic violence attorney needs to remember that this is probably the most traumatic incident in that person’s life. Whether you are handling criminal domestic violence charges or civil domestic violence injunctions, these cases require a lot of patience and compassion.

Criminal Domestic Violence | Who it the Victim

The answer that people do not want to hear is that the victim or the alleged victim cannot drop criminal domestic violence charges.  There is hope.  Just keep reading. The reason why is because the “person victim” is not the “legal victim.” In criminal domestic violence cases, the victim is the State of Florida. Hypothetically, let’s assume that the defendant’s name is John Smith. A criminal domestic violence case would be titled “The State of Florida vs. John Smith.” The State of Florida is the party to the case. The “person victim” who suffered or allegedly suffered the abuse is merely a witness.

Domestic Violence Injunctions | Who is the Victim

Civil domestic violence cases are different. In a civil domestic violence case the victim or alleged victim goes to the courthouse and files a Petition for Protection against Domestic Violence. Again, let’s use John Smith as the alleged perpetrator and his wife Jane Smith as the alleged victim according to Divorce Lawyer Chicago. Jane Smith would file the petition and the case would be titled “Jane Smith vs. John Smith.” Jane Smith would be what is called “The Petitioner” in this hypothetical case and John Smith would be called “The Respondent.” The Petitioner is the individual who is requesting a domestic violence restraining order. Notice how the first party in the criminal domestic violence case is “The State of Florida” while the first party in the civil case is the individual “Jane Smith.” Jane is not just a witness in the civil case, Jane is a party to the civil case. Jane can voluntarily dismiss the civil case at any time because she is the prosecuting party. The Office of the State Attorney decides whether to prosecute in the criminal case.

Frequently Asked Questions Concerning Domestic Violence Charges

Attorneys who defend domestic violence cases hear a lot of the same questions repeated in various forms. Chances are that your idea is not something we haven’t heard before, so ask before you do. Some of the more common questions are:

  • Will the state drop charges if I write a letter to the state attorney?
  • Will the state drop charges if I say it never happened?
  • What will happen if I don’t(or the other party doesn’t) show up for court?
  • What if I just refuse to cooperate?
  • Can’t I just tell the judge that I don’t want to prosecute?

The Answers

Understanding that there are no guarantees either way, I will address these one by one.

  • The state will probably not drop the charges because you write a letter saying that you do not want to prosecute. This has the potential to do much more harm than good.  It could help the state’s case if it is not worded correctly.  If the letter indicates that you have had contact with the defendant, that could lead to additional charges or the defendant’s bond being revoked.  This is an all around bad idea.
  • If you say it never happened, the outcome depends on your initial statement. Pursuant to Florida Statute 117.10, police officers are allowed to administer oaths. So the statement that you made to the police officer in the beginning of this case was probably under penalty of perjury. Even if you aren’t subject to a perjury charge, you can still be charged with making a false report.  You may expose yourself to significant criminal liability by retracting your statement.
  • You are legally required to show up for court if you have been subpoenaed. You may expose yourself to criminal liability if you do not show up for court after being subpoenaed. Furthermore, the court can issue what is called a writ of bodily attachment and have a police officer go pick you up………….. in handcuffs……………. and you might be required to stay in jail for the remainder of the proceedings in order to assure your appearance. Does this happen? Yes. Does it happen frequently? It depends on the jurisdiction, the policies at the state attorney’s office, circumstances surrounding the case and ultimately the individual prosecutor. Furthermore, it is a violation of the rules of professional ethics for any attorney to advise you not to show up after you have been subpoenaed.
  • There are other ways the state can obtain a conviction if you refuse to cooperate or simply do not show up. Under certain circumstances tapes of 911 telephone calls can be introduced to prove an individual’s guilt even if the witness does not appear. Many times there are other witnesses who can testify to the facts.
  • You may want to speak with the judge directly, but the judge is not allowed to discuss the case with out the state attorney and the defense attorney being present. In the event you do get to speak to the judge, you could put yourself or the defendant in a much worse situation. Additionally, judges are very suspect of individuals who suddenly get amnesia or say that it was all “a big misunderstanding.”

How can I Drop Domestic Violence Charges?

If you want to have criminal domestic violence charges dropped, the victim(aka the witness) should have his or her own attorney separate from the defendant’s attorney. Any appearance of impropriety is alleviated by both parties having separate attorneys. The attorneys can work together to lift the criminal no contact order and/or prepare an affidavit of nonprosecution specific to the case. While there are no guarantees, hiring separate attorneys has proven to have the highest rate of success and getting domestic violence charges dropped or dismissed.

For more information on how to get domestic violence charges dismissed, 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

Filed Under: Civil Law, Criminal Lawyer, Domestic Violence, Domestic Violence Injunctions, Perjury, Restraining Order Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Right to Trial by Combat | Bad Idea

August 10, 2015 by
Trial by Combat

Trial by Combat | R.I.P Rowdy Roddy Piper

“He Who Represents Himself has a Fool for a Client”

The quote above is attributed to the 16th President of the United States, Abraham Lincoln. It might surprise you, but almost every lawyer hires another lawyer to represent him in any type of legal proceeding. Notwithstanding our 6th Amendment rights, when faced with real estate closings, traffic tickets, divorce and yes criminal defense, attorneys typically hire other attorneys. There are numerous reasons why a lawyer would hire another lawyer to handle his/her case.   Initially, lawyers recognize when their legal issue is outside the scope of their own expertise. However, the main reason that most attorneys would never represent themselves is because we know that we lose the perspective that makes our services valuable. We know that litigation gets personal. An independent attorney acts as a buffer between our bad ideas and the court. Basically, we need somebody to tell us “no” and/or to shut up. Some noteable self representation failures include:

Trial by Combat

The most recent self representation failure involves an attorney, representing himself, filing a Motion for Trial by Combat.   The motion is relatively well written.  The argument is based on common law.  For simplicity, common law is the law that the United States inherited from England.  Most states have some type of enabling legislation stating something similar to the following: “The common law of England as in effect July 4, 1776 shall be the common law of the State of_______.”

The basic argument is that trial by combat was legal under the common law of England as of July 4, 1776.  Trial by combat was later made illegal in England, but New York has not specifically prohibited the practice.  Accordingly, the attorney, representing himself, demanded that he be afforded his right to trial by combat.

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2015/08/Motion-for-Trial-by-Combat.pdf” save=”1″]

The motion, by itself, is a glaring example of why an attorney should not represent himself.  No reasonably competent attorney would file this motion on behalf of their client work injury lawyers.  For the author’s sake, I hope that the judge hearing this case has a very good sense of humor.  If the judge doesn’t find this funny he might be in for a rough ride.

For more 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 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

 

Filed Under: 6th Amendment, Civil Law, Criminal Lawyer, United States Constitution Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , ,