Broward County Criminal Defense Attorney talks about terminating a permanent injunction in Florida…by Neil C. Kerch
Domestic violence is an extremely serious issue, and can give grounds for a restraining order, also known as a domestic violence injunction. An injunction is a court order commanding or preventing an action, which is often sought under exigent circumstances. Many of my criminal cases often involve some sort of domestic violence injunction.
Domestic Violence Injunction Court is especially busy in Florida, with dozens of daily cases filed in every Florida County. Restraining orders and domestic violence injunctions can have an earth-shaking effect on the individual. A restraining order is free to file, is quick in its effect, and can give an incredible tactical advantage to the filing party. Too often people try to go at it alone and suffer consequences of having a permanent injunction enforced against them. That is why it is important to hire competent legal help from the beginning.
Even if a permanent injunction has been granted, there is still a chance to have the injunction dissolved. Section 784.046(10), Florida Statutes (2009), allows the court to modify or dissolve an injunction at any time on the motion of an interested party. Likewise, Florida Rule of Family Procedure 12.540 allows a final injunction to be set aside under specified circumstances. In either event, due process requires that Respondent be given an opportunity for a hearing. See Kugler v. Joosten, 58 So. 3d 323 (Fla. 1st DCA 2011); Raymonvil v. Lewis, 46 So. 3d 139 (Fla. 5th DCA 2010); McCormick v. Shannon, 32 So. 3d 787 (Fla. 2d DCA 2010); Colarusso v. Lupetin, 28 So. 3d 238 (Fla. 4th DCA 2010).
In order to establish entitlement to dissolution of an injunction, the movant must prove that there has been a change in circumstances since the injunction was entered. Baker v. Baker, 112 So. 3d 734, 735 (Fla. 2d DCA 2013); Alkhoury v. Alkhoury, 54 So. 3d 641, 642 (Fla. 1st DCA 2011). This requires the movant to “demonstrate that the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose.” Alkhoury, 54 So. 3d at 642. “As a general rule, permanent injunctions, which remain indefinitely in effect, may be modified by a court of competent jurisdiction ‘whenever changed circumstances make it equitable to do so.’ ” (quoting Hale v. Miracle Enters. Corp., 517 So. 2d 102, 103 (Fla. 3d DCA 1987))). Baker v. Baker 112 So. 3d 734, 38 Fla. L. Weekly D1007a. If you or a loved one needs help with any type of injunction issue, please contact the Law Office of Neil C. Kerch LLC.
Disclaimer:
This Post is informational in nature and is not intended to provide or substitute for legal advice. Each case is unique and should be evaluated by a Criminal Defense Attorney.
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Broward County Criminal Defense Attorney explains Florida’s Minimum Mandatory Sentences…by Neil C. Kerch
Often, I am asked, “How can I get around the minimum mandatory sentence?” Florida has minimum mandatory sentences that judges cannot usually override. Some examples of Florida Mandatory Minimum Sentences for First-Time Offenders:
Aggravated assault with a firearm (10-20-Life offense): Three years
Armed burglary, including armed breaking and entering a car (10-20-Life offense): 10 years
Felon in possession of a firearm: Three years
Heroin, cocaine or oxycodone possession: Less than 14 grams, three years; more than 14 grams, 15 years; more than 28 grams, 25 years
Possession, cultivation of marijuana with intent to distribute: Three years
Examples of Florida Mandatory Minimum Sentences for Repeat Offenders:
Repeat murder or homicide: Life imprisonment
Repeat first-degree felony: 30 years
Repeat second-degree felony: 15 years
Repeat first-degree misdemeanor: One year
Repeat second-degree misdemeanor: 60 days
Minimum mandatory sentences are among the most counterproductive and they are basically laws created by people who have no idea about the details of the particular cases, and they take the discretion away from the people who know the facts of the case the most and the circumstances of the parties the most. They also give tremendous power to the police and the prosecutor that can be abused to leverage pleas and harsh sentences in cases and against people who do not deserve them.
A recent case of the 4thDistrict Court of Appeals reversed a downward departure, whereby the Trial Judge granted a downward departure motion and waived the minimum mandatory sentence without legal justification. The State appealed and was successful in having the case remanded. The Appeals court stated that Trial courts have no discretion to grant a motion for downward departure when the conviction implicates the (10-20-Life offense) Florida Statute 775.087(2).
Although the Court did not have discretion in this case, there are limited ways to avoid a minimum mandatory sentence. One of the ways to avoid a minimum mandatory sentence is through the youthful offender statutes. Another way is to have an reputable, experienced, professional and personable attorney negotiate with the State Attorney’s Office. Over the course of my legal career I have successfully negotiated resolutions that waive the minimum mandatory sentences in Broward, Palm Beach and Miami-Dade Counties. If you are facing a sentence that involves the imposition of a minimum mandatory sentence, you can contact Broward Criminal Defense Attorney Neil Kerch. I have the professional resources and experience to help you fight for the best possible outcome.
174 So. 3d 488
Criminal law — Sentencing — Mandatory minimum — 10-20-Life law — Trial court had no discretion to grant downward departure from three-year mandatory minimum sentence under 10-20-Life law where defendant used firearm during aggravated assault
STATE OF FLORIDA, Appellant, v. STEVEN RAY BRAY, Appellee. 4th District. Case Nos. 4D13-4771 and 4D14-441. August 19, 2015. Consolidated appeals from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562013CF000690A. Counsel: Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant. Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellee.
(MAY, J.) In these consolidated appeals, the defendant appeals his conviction for aggravated assault with a firearm. The State appeals the defendant’s downward departure sentence for that conviction. The defendant argues the prosecutor’s comments in closing argument constituted fundamental error. We disagree and affirm his conviction. The State argues the trial court erred when it failed to impose the three-year mandatory minimum sentence under the 10-20-Life statute. The defendant candidly admits the sentencing error. We therefore affirm the defendant’s conviction in case number 14-0441, but reverse the defendant’s sentence in case number 13-4771, and remand the case to the trial court for resentencing.
The facts underlying the charge and trial are largely irrelevant to our decision. The State charged the defendant by information with aggravated assault with a firearm. The jury convicted the defendant as charged. The trial court adjudicated him guilty, but granted a downward departure motion and sentenced him to one year in county jail, two years’ community control, and two years’ probation over the State’s objection.
In the State’s appeal, it argues the trial court erred when it failed to impose the mandatory minimum sentence under section 775.087(2), Florida Statutes (2013), due to the defendant’s use of a firearm during the aggravated assault. The defendant candidly agrees. Trial courts have no discretion to grant a motion for downward departure when the conviction implicates section 775.087(2). State v. Vanderhoff, 14 So. 3d 1185, 1189 (Fla. 5th DCA 2009) (“The 10/20/Life statute, section 775.087(2), Florida Statutes (2005), removed most sentencing discretion from the judicial branch, and instead, placed it in the executive branch by establishing a mandatory minimum sentencing scheme.”).
We find no merit in the defendant’s appeal of his conviction. We reverse his sentence on the State’s appeal, and remand the case to the trial court to re-sentence the defendant in accordance with section 775.087(2), Florida Statutes (2013).
Affirm Case No. 14-0441. Reverse and Remand on Case No. 13-4771. (WARNER and KLINGENSMITH, JJ., concur.)
Disclaimer:
This Post is informational in nature and is not intended to provide or substitute for legal advice. Each case is unique and should be evaluated by a Criminal Defense Attorney.
Criminal Defense attorney Broward County
Minimum Mandatory Sentences Broward County
Criminal Defense attorney Miami-Dade County
Minimum Mandatory Sentences Miami-Dade County
Criminal Defense attorney Palm Beach CountyMinimum Mandatory Sentences Palm Beach County
