Florida Protective Injunction Lawyers in Port Charlotte, Florida
A protective injunction is a civil legal matter, but it tends to feel very much like a criminal proceeding. In fact, in many cases, criminal charges will result from the same incident that leads to the protective injunction. In Florida, a protective injunction is also known as a restraining order or an order of protection. Under any name, the purpose of a protective injunction is to force a person to stay away from an individual who is allegedly a victim of violence. In essence, an injunction serves to protect a victim from further harm, resulting in severe restrictions on the person against whom the order is sought.
When a person is served with an injunction, time is of the essence. The first step to take is to hire an experienced Port Charlotte Criminal and Injunction Defense Attorney. Your attorney will be able to develop a strategy tailored to the facts of your case.
At Musca Law, our attorneys know what is at stake for our clients. We are ready to advocate for their rights and liberties. Call Musca Law today at (888) 484-5057 to put our 150 collective years of experience to work for you.
Port Charlotte, Florida: Protective Injunction Overview
Protective injunctions are issued by a Port Charlotte civil court in order to protect a person from the immediate risk of harm at the hands of another individual. In many injunction cases, there is a credible threat of harm. However, in several other cases, a person will seek an injunction in order to seek revenge against another person. For example, sometimes a person will file for a protective order in order to gain leverage in a family law proceeding such as a custody battle.
It is important to note that while violent acts may lead to criminal charges, the fact that an injunction is a civil action means that the process of obtaining or defending against an injunction differs from a criminal case in some significant ways. For instance, while a person accused of a crime must be proven guilty beyond a reasonable doubt, the burden is not as high in civil matters such as injunction proceedings. Hence, it is possible for an injunction to be issued even if there is insufficient evidence to convict a person of a crime. Additionally, it is important to understand that while the issuance of an injunction does not lead to jail time, the violation of its terms could result in criminal charges.
A Port Charlotte Criminal and Injunction Defense Attorney is best suited to handle injunction cases because the issues involved may impact corresponding criminal proceedings.
In Florida, the person seeking a petition for an injunction is referred to as the “petitioner.” The person against whom the injunction is sought is referred to as the “respondent.”
Types of Injunctions Available Under Florida Law
Florida law defines five separate protective injunctions, the list of which is as follows:
- Domestic Violence Injunctions;
- Sexual Violence Injunctions;
- Dating Violence Injunctions;
- Repeat Violence Injunctions; and
- Stalking Injunctions
While the various types of injunctions differ in several key ways, the petitioner will have to undergo the same process in order to obtain any one of the above-listed court-ordered protections.
Basics of a Domestic Violence Injunction in Port Charlotte
Domestic violence injunctions are commonly sought after in Port Charlotte, Florida. Petitioners seeking this type of injunction must demonstrate to the court that the parties are family members, or shared a household together. Florida Statute Section 741.30(1) states that domestic violence injunctions are relevant if the parties live together, lived together in the past, or if the parties have a child in common. For parents of a common child, there is no requirement that the parties resided with one another at any point in the past.
Criminal charges are often filed in relation to the same accusations that are raised in a petition for a domestic violence injunctions. Accordingly, hiring a criminal defense attorney is the best way to fight against these charges and protect the legal rights and interests of the accused.
Basics of a Sexual Violence Injunction in Port Charlotte
Sexual violence injunctions involve lewd and lascivious behavior towards a minor under the age of sixteen, and instances of sexual assault/battery. In many cases, these types of injunctions will be sought against a family member or former partner, but no specific relationship needs to exist in order to obtain a sexual violence injunction in Florida. Florida Statute Section 784.046(c) defines the behaviors that may lead to this type of injunctive protection. In many cases, these injunctions have severe consequences, and it is often the case that criminal charges will also be filed in relation to the allegations that lead to a sexual violence injunction. It is important to note that a sexual violence injunction may be issued even in cases where no charges were ever filed or where the charges were dismissed.
Basics of a Dating Violence Injunction in Port Charlotte
The law related to dating violence injunctions in Florida is codified in Florida Statute Section 784.046(d). The statute defines “dating violence” as violence that occurs between people in a romantic or intimate relationship, or who were recently in a romantic or intimate relationship. The first element that a petitioner must prove in seeking a dating violence injunction is that he or she and the respondent were engaged in a dating relationship. The relationship must have existed at least six months from the time when the petition or a dating violence injunction is filed. The relationship must have involved sexual interactions, or the expectation of affection. Finally, the relationship must have occurred over a period of time, and been continuous.
If the petitioner is unable to prove that a dating relationship existed, then the court will dismiss the matter in its entirety. For respondents facing a dating violence injunction, it is imperative that he or she hire a Port Charlotte Criminal and Injunction Defense Attorney in order to develop the strongest defense strategy possible.
Basics of a Repeat Violence Injunction in Port Charlotte
In Florida, repeat violence injunctions are defined in Florida Statute Section 784.46(b). In order to obtain a repeat violence injunction, the petitioner must allege that the respondent carried out two or more violent acts, or acts of stalking against him or her, and that at least one of the actions took place at least six months prior to the filing of the petition.
These injunctions need not involve parties who have been involved in a dating relationship or who lived together. Although many repeat violence injunctions are filed against former romantic partners or family members, petitioners may also file a petition for a repeat violence injunction against a co-worker, former friends, neighbors, or complete strangers. In other words, the relationship can take any form for a repeat violence injunction to apply.
Basics of a Stalking Injunction in Port Charlotte
Florida Statute Section 784.048(2) defines stalking as the willful, malicious, and repeated harassment or following of another person, or the cyberstalking of another individual. There is no particular relationship that must exist between the parties. This is the only type of injunction that does not require the parties to be in physical contact with one another.
How a Petitioner Seeks an Injunction
In order to obtain an injunction, the first step is to file a petition with the court. The petition will vary depending on the type of injunction being sought. In all cases, the petitioner must sign the document under oath. In other words, the petition is a sworn document, meaning that if the allegations raised in the petition are false, the petitioner may face perjury charges.
After the petitioner files the petition, the court will review the signed document and the allegations contained therein. Courts consider protective injunctions to be urgent, and as such, the court will review the allegations quickly and render a determination as to whether a temporary injunction is warranted.
The petitioner need not present evidence at this hearing for a temporary injunction. The judge bases his or her decision solely on the allegations raised in the petition. In many cases, the court will issue the temporary injunction in order to protect the petitioner from future harm. This hearing is considered ex parte because the respondent will not be present. Keep in mind that a temporary injunction will only last for fifteen days.
Once the petition is filed, and the temporary injunction is in place, the Charlotte County Sheriff’s Office will serve the respondent with copies of the temporary injunction order and petition, as well as a notice of the date, time, and location of the final hearing. The Constitutions of the United States and Florida dictate that the respondent cannot be liable for violating an order of which he or she has no knowledge. However, if the respondent actively attempts to avoid service of process, he or she may be deemed by the court to have received constructive notice of the case. Accordingly, it is best to accept service of process, and to avoid violating the terms of a temporary restraining order.
The first step to take after receiving notice of an injunction is to contact an attorney. An experienced Port Charlotte Criminal and Injunction Defense Attorney will be best suited to protect the rights of the accused as well as develop the strongest defense case possible.
In many cases, the attorney will seek to continue, or postpone, the final hearing date in order to have more time to prepare for the respondent’s case.
On the day of the hearing, both parties will have the opportunity to present evidence, including witness testimony, and to testify. Keep in mind that it is not always prudent for the respondent to testify, as he or she has a constitutional right against self-incrimination. While the respondent has the right to testify, the decision to do so is one that should be made after careful consultation with an attorney.
Evidence may come in various forms, including medical records, photographs, text messages, emails, social media postings, and other documents. The respondent’s attorney will have the opportunity to cross-examine the petitioner and any witnesses that have been called on the petitioner’s behalf.
At the conclusion of the hearing, the judge will decide whether or not to enter a permanent injunction. If the judge decides that no injunction is necessary, then any temporary injunction will cease to remain in effect.
When the Charlotte County Protective Injunction is Entered
If the judge enters an injunction against the respondent, his or her rights will be severely limited. Keep in mind that the specifics of the order will vary depending on the type of injunction sought and the facts of the case. Some of the possible outcomes of an injunction include the requirement to stay away from the petitioner and potentially the petitioner’s family. In addition, there will likely be places that the respondent will have to avoid as well, including a shared dwelling, workplace, school, and house of worship.
The respondent will have his or her right to own a gun forfeited and must surrender all weapons and ammunition to law enforcement. It is possible that mental health evaluations will also be required, and the respondent may be subjected to drug testing. Moreover, the respondent may be required to submit to drug or addiction counseling at his or her own expense.
It is vital that the respondent fully understand all of the terms of the injunction, as if it is violated, criminal charges will likely follow.
Of course, a person who has an injunction issued against him or her may find that there are other impacts on their life as a result of the injunction. For instance, the individual may face social stigma resulting from the order, and could experience hardships when attempting to find a job or suitable housing. The documents involved are part of the public record, and as such, will be searchable by anyone who is performing a background check on the respondent. Even personal relationships may feel strained as family and friends may view the respondent with suspicion.
Given the dire life-altering consequences involved in an injunction, it is vital that the accused obtain legal counsel to immediately protect his or her rights.
Criminal Consequences of Protective Injunction Violations in Port Charlotte, Florida
In the event that a person violates a protective order in Port Charlotte, he or she will likely face criminal charges. For a first time violation of an injunctive order, the respondent may face a year-long prison term and a $1,000 fine. The second violation will carry the same sentence, but a third or subsequence violation can carry a five year prison sentence and a $5,000 fine. If you have been charged with violating a protective injunction, contact a skilled Port Charlotte Criminal and Injunction Defense Attorney in order to preserve your legal rights and develop the strongest defense strategy possible.
How to Terminate or Modify a Port Charlotte Protective Injunction
Protective injunctions are not carved in stone, and it is possible to modify or terminate these orders. The petitioner and the respondent both have the right to move the court to modify or terminate an injunction. Proving that a termination or modification is warranted is challenging, as the court needs to be convinced that there is no further risk of harm to the petitioner and/or a minor child.
Sometimes an injunction will only be effective for a set amount of time and terminate automatically. If the injunction is permanent, the respondent must seek to have the order terminated. If the petition ends at a certain time, the petitioner has the right to petition the court to extend the order. The petitioner must do this within 30 days before the order’s expiration date, and the respondent has the right to challenge said extension.
Musca Law Can Help Protect Your Rights
Facing a protective injunction can be frightening. Contact Musca Law today at (888) 484-5057 to speak to an experienced Port Charlotte Criminal Defense Attorney. You have too much at stake to put your rights and your future at risk. Don’t wait, as your legal rights are at stake. Call Musca Law today to learn more about your legal rights and options.