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: , , , , , , , , , , , , , , , , , , , ,

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: , , , , , , , , , , , , , , , , , , , , , , , , ,

Assault and Battery | What is the Difference?

December 28, 2015 by

Assault and Battery

Assault and Battery

Assault & Battery is a Matter of Do or Do Not

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

What is Common Law?

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

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

Common Law Definition of Battery

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

Common Law Definition of Assault

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

Assault Merges into Battery

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

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

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

Florida Statute 784.03 | Florida Statute 784.011

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

Aggravated Assault | Aggravated Battery

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

Domestic Violence

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

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

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

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

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

Raleigh Domestic Violence Attorney Jane Weatherly, Esq.

Filed Under: Assault, Assault, Assault and Battery, Assault and Battery, Battery, Battery, Common Law, Domestic Violence 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: , , , , , , , , , , , , , , , , , , , , ,

Florida Sentencing Guidelines

August 20, 2015 by
Florida Criminal Punishment Code Scoresheet

It’s like golf! Less Points = Better!

Am I Going to Prison?

Every criminal defense attorney gets asked this question. From DUI cases to murder cases, every defendant is concerned with their exposure to a prison sentence. In felony cases, if you are found guilty, the length of your prison sentence is typically determined by a simple mathematical calculation.  I will use algebra to explain thereby making this unnecessarily complicated and creating job security.  P = Total Sentence Points.  If P > or = 44 then your recommended prison sentence is calculated as follows, .75(P – 28) .

Florida Criminal Punishment Code Scoresheet

The form for the Florida Criminal Punishment Code Scoresheet is found in Florida Rule of Criminal  Procedure 3.992. The assistant state attorney handling the prosecution of a felony matter is required to complete a Florida Criminal Punishment Code Scoresheet. The Florida Criminal Punishment Code Scoresheet is also known as the sentencing scoresheet. The purpose of the criminal punishment code scoresheet is to provide the court with a “recommended” sentence.

How is it Scored?

Think of sentencing points like a golf score.  The less points you have, the better off you will be.  The sentencing scoresheet assigns a point value to all criminal offenses currently before the court. All felonies are divided into various “offense levels.” The various offense levels can be found in Florida Statute 921.0022. Section 1 is called the primary offense. The primary offense carries the most sentence points out of all charges on the scoresheet. I use a felony DUI in the example below. A fourth(4th) DUI conviction, and all subsequent DUI convictions, are 3rd degree felonies pursuant to Florida Law. Looking at section 1, you can see that a fifth(5th) DUI conviction is a third-degree felony, the statute is 316.193 and the offense level is six. A level VI primary offense earns 36 sentence points. However, a level VI additional offense is only 18 points.

Additional points are added for certain aggravating factors and prior convictions. The assistant state attorney will calculate the total amount of sentence points.  However, the defense attorney needs to check to make sure it is correct.  If the total amount of sentence points is less than 44, the lowest permissible sense is a non-state prison sanction. A non-state prison sanction can include some jail time, probation, community control or a combination of all of the above. When you want your own business website, visit web design palm beach.

Calculating a Hypothetical Scoresheet

Primary and Additional Offenses: In the example that I use below, John Smith has been arrested for a fifth DUI and possession of cocaine. Both crimes are felonies. The fifth DUI is the primary offense because it is a level VI offense. The possession of cocaine is an additional offense because it is a level III offense. Accordingly, Mr. Smith is assessed 36 sentence points for the DUI and 2.4 sentence points for the possession of cocaine.

Victim Injury: Section 3 deals with victim injury. This area of the scoresheet is a bit more subjective and there is room for a criminal defense attorney to attempt to get less sentencing points. In this example, there was a victim injury and the injury was described as moderate. An additional 18 sentence points are added due to the degree of the injury of the victim.

Prior Criminal Record: Section 4 assigns points based on the defendant’s prior criminal record. In this section, you will find yourself going back to Florida statute 921.0022 in order to find the offense levels for any prior convictions. In the example below I simply put four prior DUIs for the sake of simplicity.

Legal Status: Section 5 assigns points for legal status violations. A legal status is when an individual can be classified as an escapee, and absconder or, amongst others, already incarcerated. Section 6 assigns points for violating terms of pretrial release or probation.

Community Sanction Violation: Section 6 is used quite often because of high recidivism levels. So if an individual is on probation when he or she gets convicted for a new charge,  it will enhance the length of the sentence for the new charge.

Sections 7, 8 and 9 are fairly self explanatory.  These sections are not used as often because they typically apply to much more serious criminal offenses.

If the total sentencing points is greater than 44, you subtract 44 from the total score and multiply times .75 which gives you the minimum amount of prison time. A judge is authorized to sentence a defendant to consecutive maximum terms of imprisonment.  The guidelines are merely suggestions. A Judge may be required to provide a written explanation concerning a deviation from the guidelines under certain circumstances In the example below, the maximum sentence would be 10 years. However, the recommended sentence would be 29.55 months. When you are not a criminal and want a human resource manager for your business, pick Salopek consulting Ottawa. They can help you out so visit them now.

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2015/08/Scoresheet.pdf”]

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: Criminal Lawyer, DUI Lawyer, Florida Rules of Criminal Procedure, Florida Statute 316.193, Sentencing Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , ,