I have a Domestic Battery Case and a Restraining Order Case from the same incident. Why are there two cases?
I have a Domestic Battery Case and a Restraining Order Case from the same incident. Why are there two cases?
Although the cases may involve the same incident and will most likely overlap, they are two separate and distinct cases. One civil, one criminal, with different standards of proof.
What is the difference between the two cases?
Criminal domestic violence cases
A criminal case will involve the State of Florida bringing charges against the accused, known as the defendant in the case. For example, the name of the case would be the State of Florida vs. John Smith. The alleged victim will not be a named party in the action. The accused is usually arrested and booked at the jail in criminal cases. They must post a bond or be released on other pretrial release conditions. If the charges are very serious, a judge may deny a bond and the person must wait in jail pending a trial or other resolution to the case. A criminal stay away order, also known as a no contact order, will be issued in favor of the alleged victim in the case. This means the defendant can have no contact whatsoever with that person including contact via telephone calls, texts, any social media, and through third parties. If you do have contact in violation of this order, you may face additional criminal charges and a possible revocation of your bond. If the state attorney decides to go forward with the prosecution of your case he or she will formally file charges against you at the Arraignment. These will be the charges that the state must prove beyond a reasonable doubt if your case proceeds to trial.
Civil domestic violence cases
Even though there is already a stay away order from the criminal case, sometimes alleged victims feel the need for additional protection through a restraining order, also known as a civil injunction for protection against domestic violence. In these civil cases, the alleged victim and the accused are both parties to the action. For example, the name this civil type of case would be Jane Doe vs. John Doe. The alleged victim is known as the Petitioner and the accused is known as the Respondent. In order to obtain an injunction, the victim must file a petition which alleges why he or she feels they need protection from domestic violence. If there is already a criminal case, those allegations will be included, as well as any other instance of abusive or violence conduct. This petition is then reviewed by a judge, who decides whether to issue a temporary injunction. If one is issued, the Respondent is served with this temporary injunction and given a date to appear for the final hearing. At the final hearing, a judge will decide whether the case merits a permanent injunction. Unlike the high standard of proof for a criminal case, the standard of proof in this type of civil case is “reasonable cause.” Essentially, when it appears to the court that the Petitioner is either the victim of domestic violence or has reasonable cause to believe the Petitioner is in imminent danger of becoming a victim of domestic violence, the court may grant relief as it deems proper, including a permanent injunction. See Florida Statutes §741.30
Do I need to hire an attorney for both cases?
It is always advisable to hire an attorney when faced with situations like this. In the criminal case, your liberty is at stake. That means you could go to jail! In the civil injunction case, while you do not face jail time, your rights may still be restricted as a result of having an injunction entered against you. You could be prevented from carrying a firearm or any concealed weapon. The injunction will appear on background checks. You may be required to attend a batterers’ intervention course, pay child support, and relinquish the use of your home. If you violate the terms of the injunction, you could face jail time.
It is important to obtain counsel who is knowledgeable in both areas of law. Testimony and evidence in the civil case can affect the criminal case, and vice versa. In some circumstances, your testimony in the injunction case, should you choose to testify, could be used against you in the criminal case, where the stakes are much higher.
If you, a friend or a family member find themselves in a situation such as this, please call the Law Office of Scott A. Ferris, P.A. at 305 670-3330 right away. Scott A. Ferris, Esq. is a licensed criminal law attorney who has been practicing law since 1987. He is available whenever you need him to defend your rights. Please learn about our firm at www.FerrisLawFirm.com.