How Can A No-Contact Order Be Lifted In Florida?
November 9, 2017
How to Lift a No-Contact Order in Florida
There are two basic ways to lift a no-contact order in Florida but only one of them would I consider correct. If you take the wrong approach the defendants case could be made significantly worse and may even end in a no-contact order violation. One of the things that we frequently hear is that complaining witnesses are told to go down to the State Attorney’s office without legal counsel and ask to speak to the prosecutor who will be able to make the no-contact order disappear.
Here is what actually happens. The Offices of the State Attorney and all 20 judicial circuits are prepared for people to come down to their different offices without legal counsel. When people get there and try to lift contact orders, they start making them jump through hoops. For example, complainants are told that they need to go to a class but the class typically happens to be scheduled for a time when the person wanting to drop the no-contact order has work or family obligations. This makes it much more difficult to get the no-contact order lifted with this method.
They will also require, in some counties, counseling or remedy sessions before a no-contact order can be lifted. The real purpose of these classes and counseling is to convince the complaining witness that they are a victim of a crime, and not to do anything that will impede the prosecution against the defendant. What we use in my firm is a bifurcated approach.
The first thing we do is try to get the complaining witness to make a written request that is notarized as to why they want to have contact with the defendant. I personally do not speak to the complaining witness at this juncture, in case we have a contested hearing. If we have a contested hearing, I need the complaining witness to be able to say, “I don’t know who he is” when asked “what did Mr. Cobb tell you to say in court today.” If I don’t have contact with the complaining witness, then the complaining witness can truthfully say that they have never met me, spoken with me, or been influenced for testimony in anyway.
Additionally, when we have it in writing we can also approach the state to do it by stipulation. That is a fancy way of saying Agreement of the Parties. No court appearance is required, it’s all done on paper, and a judge’s order is signed faster than you can normally get a hearing date. This way the defendant and the complainant can have contact with each other. With regard to a request to drop charges, we use a very similar format for one simple reason. We have found it to be the most highly effective method of communicating a request to drop charges to the Office of the State Attorney while preventing all of the downsides of having an unrepresented person just wander into the State Attorney’s Office and get manipulated by the system.
Another reason that we like to put these type of things in writing is that I am able to do a quality control review. In other words, if there is something in the written documentation with the request to drop charges or to change bond conditions from no-contact to no violent contact, then I can arrange it so that the statement is truthfully modified and the confusing information is removed. Sometimes when people write out a request to change bond conditions it’s not as clear to someone reading it as it is to the person writing it. Every written request is reviewed, and if there are any problems we let the complaining witness know. What I do not do is tell a complaining witness what to say. I never have, and I never will. It’s improper, and the correct way to handle the lifting of a no-contact order, in my opinion, is to do it in writing under oath.
In our experience this has been the best way to resolve and lift a no-contact order without jumping through hoops or scheduling several hearings.
What Is The Penalty For A Violation Of A No-Contact Order In Florida?
Depending on the case, the penalty for violating a no-contact order can include additional criminal charges. However, the most immediate result is that violation of a no-contact order almost always results in revocation of bond. Once the bond has been revoked for the violation of a no-contact order, then a person is kept in jail until their case concludes. While they are in jail, they may be served with additional papers indicating that they have additional charges for violating that no-contact order. There are double penalties when someone violates the no-contact order under Florida criminal law, which are an immediate bond revocation followed by the risk of additional charges for violating a no-contact order.
Is It Ever A Defense That The Alleged Victim Initiated The Contact?
Though many people don’t like this defense, it can sometimes be argued that the alleged victim initiated the contact. The problem is that when you are arguing that type of defense, the defendant has already had the bail bond revoked and is at that particular court hearing in jail togs, which I do not recommend. Certainly, if someone initiates contact it may form a defense. Nevertheless, it’s not a defense you want to be using because it means a client has not followed the proper procedures for getting a no-contact order lifted first. Now our client is subject to being arrested for a bond violation and going to jail in a scenario that makes it very difficult to get bond reinstated. That being said, there are situations where it can be a defense.
For example, if the complainant shows up on the defendant’s doorstep and the defendant opens the door and the complainant starts talking, then that is a scenario where if it came to a court hearing on the issue of whether bond conditions were violated, the defense would certainly have a strong argument. However, in my experience with judges all throughout Florida, they take the position that if the defendant is walking through a local grocery store and happens to come upon the complainant and the complainant tries to initiate conversation, the defendant’s duty is not to use that as an opportunity to lawfully communicate but instead must turn around and walk away. You can see a scenario where a defendant did not initiate contact and the complainant initiated it, yet the judge will still find that there was a bond violation. All because the defendant did not turn around and walk away or otherwise cease communication with the complaining witness in a criminal case matter.
Will A Defendant Be Automatically Given A No-Contact Order In A Domestic Violence Case?
I cannot remember a domestic violence case where a defendant was not automatically given a no-contact order, except in scenarios where legal counsel was present at first appearance the following day after the arrest. The complaining witness was present, and the complainant was willing to offer testimony at first appearance that he or she wished to have contact with the defendant. Sometimes, if the complaining witness can get to pre-trial release services before first appearance, that will be sufficient to prevent a no-contact order. Generally, the better course of action is for legal counsel to be prepared to argue for bond which is reasonable in terms of the dollar amount, and for conditions such as contact that are reasonable at first appearance. It’s reasonable to argue that a defendant should be released on bond for a domestic violence offense and that since the complaining witness desires to have contact with the defendant, then the court should allow all contact that is non-violent.
One of the biggest tragedies of domestic violence litigation is that anybody can make a complaint against another person, alleging some form of domestic or dating violence. The other party is literally kicked out of their own home and has to go back to their place of residence with the law enforcement officer to gather personal effects. They must leave and have no-contact with the other party. There have been multiple cases where the law enforcement officer is escorting the defendant back to the property and the defendant is getting the personal effects together and the complainant is telling the escorting officer, “Hey, I want to have contact, can’t you do anything?” The law enforcement officer usually says something to the effect of, “Well, contact the State Attorney. I’m just doing my job and I can’t do anything. I am not working on this case, I am just here to escort the defendant.”
The advice to contact the State Attorney is bad advice. The best advice is contact defense counsel, who is actually on the defendant’s side. From there, the defense counsel can take care of getting a no-contact order lifted, or otherwise modify it. Generally speaking, in most circumstances, a defendant will automatically be given a no-contact order in a misdemeanor or a felony domestic violence case.
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an edited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
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