Violation of Injunction - A Criminal Offense in Florida
Although injunctions are only issued after a civil court hearing, a person who violates an injunction in Florida will likely face criminal prosecution. Most often, violations of injunction charges are treated as a first degree misdemeanor offense. However, in some situations, a person can be charged with the felony offense of “Aggravated Stalking” if their case involves multiple violations of their injunction in an attempt to harass or threaten the other party.
What is an Injunction?
An “injunction” is a court order that is issued by a Circuit Court Judge that places restrictions on a person’s ability to have contact with another individual. Although many people commonly refer to this type of court order as a “restraining order,” Florida law uses the term “injunction” exclusively.
The underlying rationale for the aggressive treatment of these violations is premised on the idea that the defendant willfully disregarded a direct court order. .
Types of Injunctions Issued by the Florida Court System
Florida law allows a Circuit Court Judge to issue four different types of injunctions. Each type of injunction is designed to prevent or limit contact between individuals. Generally speaking, the nature of the relationship that the people had prior to the issuance of the injunction will dictate the appropriate injunction that will ultimately be issued by the court. The four types of injunctions are:
•Domestic Violence Injunctions
•Repeat Violence Injunctions
•Dating Violence Injunctions
•Sexual Violence Injunctions
Violation of a Domestic Violence Injunction
If an “Injunction for Protection Against Domestic Violence” has been issued against you, it is important to read the document carefully. Depending on the specifics of the injunction, it may be a criminal act to:
•Refuse to vacate the dwelling that you share with the other party;
•Go to, or be within 500 feet of, the petitioner's residence, school, place of employment, or any specified place frequented regularly by the petitioner and any named family or household member;
•Commit an act of domestic violence against the petitioner;
•Commit any other violation of the injunction through an intentional unlawful threat to do violence to the petitioner;
•Telephone, contact, or otherwise communicate with the petitioner directly or indirectly, unless the injunction specifically allows indirect contact;
•Knowingly and intentionally come within 100 feet of the petitioner's motor vehicle, whether or not that vehicle is occupied;
•Deface or destroy the petitioner's personal property, including the petitioner's motor vehicle; or
•Refuse to surrender firearms or ammunition if ordered to do so in the injunction.
We can review your injunction to determine whether the behavior that is alleged to have caused your violation, is in fact, prohibited by the terms and conditions of the court order.
Violation of a Repeat Violence, Dating Violence or Sexual Violence Injunction
The number of ways an Injunction for Protection Against Repeat Violence, Dating Violence or Sexual Violence can be violated are limited. It is very important to read the injunction carefully. Depending on the specifics of the injunction, it may be a criminal act to:
•Refuse to vacate the dwelling that you share with the other party;
•Go to the petitioner's residence, school, place of employment, or any specified place frequented regularly by the petitioner and any named family or household member;
•Commit an act of repeat violence, sexual violence, or dating violence against the petitioner;
•Commit any other violation of the injunction through an intentional unlawful threat to do violence to the petitioner; or
•Telephone, contact, or otherwise communicate with the petitioner directly or indirectly, unless the injunction specifically allows indirect contact.
How Long Does an Injunction Last?
The length of an injunction will vary from one case to another. However, under Florida Statute §784.046(7)(c), a Circuit Court Judge can order that an injunction remain in full force and effect permanently. This could mean that the injunction will last forever unless it is modified or dissolved by the issuing court. Although either person may ask the court to modify or dissolve the injunction, neither party may change the terms of the injunction without obtaining the permission of the court first.
What If the Other Person Wants Contact?
Many people make the mistake of assuming that the person who obtains an injunction also has the power to waive the terms of the injunction on their own without ever going to court. This is not true! An injunction, once granted, must be modified through a court hearing before a Circuit Court Judge. Even though the person who has been granted the injunction may have forgiven you and sought out contact with you, the violation of the terms of the injunction may still result in a criminal charge against you. You should know that Florida Statute ss. 784.046(13) gives law enforcement the discretion to arrest and charge you for a violation of an injunction regardless of the “victim’s” consent to contact. Therefore, the permission of the “victim” alone will not stop the police from arresting you for a violation of the injunction.
In order to effectively dissolve an injunction it is necessary to set a hearing before the appropriate Circuit Court Judge and give notice to all the parties involved. During the hearing the judge will make an inquiry in order to determine whether lifting the injunction is in the best interests of the State and the parties. Given the wishes of the other party to resume contact with you, there is a great likelihood can be convinced to dissolve the injunction.
What if the Other Person Initiates Contact?
Even if the other person initiates contact with you after you have been served with the injunction, this contact on their part does not void the binding effect of the original injunction. Efforts at reconciliation on the part of the Petitioner can be dangerous as they could subject you to arrest for violation of the injunction. Keep in mind that only the judge can dismiss the injunction. If law enforcement observes a violation of the injunction, you are still subject to arrest, regardless of the fact that contact was initiated by the other party.
Violation of Injunction - Penalties
In Florida, a violation of injunction is a first-degree misdemeanor. The maximum possible penalty carries up to a $1,000.00 fine and as much as 365 days in Jail. Violating an injunction is looked upon as a serious offense by the Florida Court system. It is not unusual for the prosecutor to view a violation of injunction as not just a crime against a particular victim, but also a crime against the peace and dignity of the State of Florida. The prosecutor will argue that your violation of the injunction demonstrated a disregard for the law and a disregard for the authority of the Court to modify or restrict your behavior. Likewise, the Court will be concerned about the possibility that your continued violation of the injunction could lead to the commission of a violent crime. Accordingly, many Judges who are called on to impose a sentence in a Violation of Injunction case want to send a strong message that violating a court ordered injunction will not be tolerated.
If you are convicted of violating a domestic related injunction, the judge is mandated by Florida law to require you to attend a 26 week course of domestic violence counseling. This penalty can be waived, if the court is persuaded to make findings on the record that counseling is not necessary or appropriate in your case. Our office can discuss with you the possibility of persuing a waiver of this requirement.
Often times, You can make the prosecutor aware of important facts that cast you in a positive light or draw attention to special circumstances. These include such factors as:
•The contact between you and the other party may have been consensual.
•The petitioner may have initiated the contact with you.
•The petitioner does not want to prosecute and desires reconciliation.
•The injunction has been dissolved, or is presently scheduled for a hearing for that purpose, or the petitioner is agreeable to dissolving the injunction but has not yet taken the required action to do so.
•The underlying facts that led to the injunction being granted in the first place were not of an aggravated nature.
•You violated a temporary injunction and the final injunction was never granted. This fact could be especially favorable if the final injunction was not granted because the petitioner decided not to proceed or the judge decided that the facts supporting the original petition for the injunction did not warrant the granting of a permanent injunction.
•The violation of the injunction occurred due to a coincidence, chance meeting, or was otherwise of a minimal nature.
Possible Defenses against Violating An Injunction
•The Contact that Violated Your Injunction was Unintentional
Violation of an injunction must be willful. Florida law does not permit the State to prosecute a person who inadvertently or unintentionally violates an injunction. We may be able to argue that your contact with the petitioner was an accidental meeting.
•You Never Received Notice of the Final or Permanent Injunction
Florida courts have determined that “notice” or “service” of a permanent injunction must be accomplished before a person can be prosecuted for violation of the injunction. In other words, you must have received “actual service” or been provided with a copy of the permanent injunction personally, prior to the time you were alleged to have violated the terms of the injunction. This defense applies even in situations where you were personally served with the temporary injunction notice, but never received actual service of the final injunction. See Livingston v. State, 847 So. 2d 1131 (Fla. 4th DCA 2003).
•Your Injunction Violation Occurred When You Lawfully Complied with a Court Order in a Divorce, Child Support or Custody Proceeding
There are many situations where a Circuit Court Judge in a divorce, child support, or child custody proceeding will order that you and the other party have contact. Often this contact is required by the court for the purpose of working out a visitation or payment schedule, dividing up property, or discussing other aspects of the ongoing civil legal proceedings. If your violation of injunction was caused by your reasonable compliance with a judge’s order in a civil case, this may constitute a defense against the criminal charge.
Domestic Violence Intervention Program - Getting the Charge Dismissed
Upon successful completion of Domestic Violence Intervention Program, the criminal charge pending against you will be dismissed.
If other options are unavailable, an Attorney can negotiate with the prosecutor and the judge for the most lenient disposition possible. It is important to make all of the mitigating facts and circumstances in your case known to the court. Making the judge aware of the following additional information could prove to be an effective strategy:
•The contact that caused the violation of the injunction was merely verbal in nature and did not contain threats of violence.
•The contact took place through a third party for the purpose of obtaining personal property or for another reason related to ending the relationship amicably.
•You have already started on completing the 26 weeks of domestic violence counseling prior to going to court.
•You have already begun attendance at an anger management course assigned to you by your attorney. (In some situations, the shorter anger management course may be more appropriate to the unique circumstances involved in your case.)
•The other party in the case does not want to see you prosecuted or, at a minimum, does not want to see you sentenced to time in jail.
•The injunction has since been dissolved or otherwise dismissed.
As you can see, the law governing violations of an injunction is complex. Getting the best possible outcome requires a thorough review of the individual facts of your case and a coordinated strategy. A good criminal defense attorney can uncover the relevant issues in your case and create an effective game plan to resolve your case satisfactorily. .
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