Wednesday, May 08, 2013

CAN VICTIMS FORCE THE DISMISSAL OF CRIMINAL CASES BY FILING A REQUEST NOT TO PROSECUTE IN FLORIDA



Clearwater criminal defense attorneys are often asked if a victim has the right to stop a criminal case from proceeding in the State of Florida. 

Here's a typical question I recently received from a man charged with Domestic Violence against his wife.
This courtroom in Tampa Bay Florida is where domestic battery cases are prosecuted.My wife signed a request not to prosecute two days after I was arrested by the Pinellas County Sheriff's Department. Since my wife no longer wants to proceed against me on the domestic battery case, how can the state still prosecute me? 
Neither of us was even injured. They arrested me because I admitted spitting on her during a heated argument before she called the police. My employer will not let me go back into work until this case is resolved without a conviction. What can I do to get these charges dropped?
The law in Florida forces officers on the scene of an established domestic violence case to make an arrest even if the victim does not want to prosecute. 

But could mere spitting (Oops! Sorry, didn't mean for that spray to hit you as I speak.) really be a criminal act? Any unwanted intentional touching of one person against the will of another person is a battery. Spitting is considered an unwanted touching. When the husband admitted that he spit on his wife, he gave the Tampa Bay investigating officers reason to believe that he'd committed a domestic violence battery. 

Here the victim by signing a request not to prosecute has unambiguously demonstrated to prosecutors that she does not want to move forward with this prosecution. Yet the State of Florida presumes that Florida itself is also a victim in every criminal case. In a sense it must be because it is the State of Florida that pursues or fails to pursue every criminal case even those such as drug crimes which have no apparent victim.

Therefore law enforcement is not prohibited from prosecuting any Defendant just because the person who was harmed does not want to prosecute. However, a smart prosecutor who understands that he may have to prove the case at trial will take the request not to prosecute into consideration with other facts and circumstances of the case. An effective Tampa Bay Defense Lawyer will do everything possible to persuade prosecutors that this nonviolent act should be dismissed, because the shameful arrest itself has served as a sufficient punishment and deterrent. 
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