Not all relationships are happy, well balanced unions. There may be issues of domestic violence involving either spouse. The end result is that it leaves not only a criminal record, if the perpetrator is convicted, but may also affect other situations in the future.
An example of domestic violence affecting something in the future would be a male spouse, prior to marriage, being involved in an incident with his partner in which she brandished a firearm at him. Although the wife was arrested and charged, contrary to the uncooperative man’s direct wishes, she was ultimately granted probation on a lesser charge. The case was dismissed when she completed probation.
About a decade later, the marriage disintegrated and the husband wishes to avoid paying temporary spousal support because of the wife’s previous history of violence. Is that possible?
The ruling legislation for situations such as this is the California Family Code – specifically sections 3600, 4320(l)(m) and section 4325. As with any stated legislation, there are often exceptions or legal work-arounds. For instance, the most applicable section in this example is section 4325, which is a rebuttable “presumption” that permanent or temporary alimony for an abusive spouse should not be ordered in the presence of a conviction within a five year period before filing for a divorce.
In the example above, the couple were not married when the violence occurred and the incident took place longer than five years ago – two points that may possibly go against the man being able to avoid paying temporary spousal support. Whether or not there is a conviction for spousal battery is irrelevant, as it can be any lesser-included defense. What is relevant are the facts of the case, not the plea.
The more relevant applicable section is Family Code section 4320(l), which experienced divorce attorneys argue in court. This subsection says the courts “must” hear evidence of domestic violence between the “parties” (the legislation does not specifically say spouses). Thus, section 3600 of the California Family Code, applies to temporary spousal support and it states courts may order any amount of spousal support necessary that is consistent with either section 4320(l) and/or (m) or section 4325.
The take away in this is that the courts may make spousal support orders consistent with either or both relevant section/subsections, that there is no mandated five year time bar in section 4320 and that domestic violence may be used as a defense to judgment or temporary orders for spousal support.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
http://www.wftv.com/news/news/local/brevard-judge-accused-punching-public-defender/ngCGC/
But what was the fight really about? The news reports state that it happened at a “first appearance” hearing. This is probably inaccurate. The court proceeding appeared to be “Arraignment” hearings and to understand why this lead to the argument, it helps to know the difference between the court proceedings. What is the difference between 1st Appearance and Arraignment?
What happens at 1st appearance?
1st Appearance happens when a person is initially arrested. The person is taken before the judge the next day to determine if there is “probable cause” to hold them in jail while the criminal charge is pending. The judge also determines what (if any) bond or conditions of release shall be set. If the judge finds there is NO PROBABLE cause for the arrest, the person is released on their own recognizance, commonly referred to as R.O.R. This does not mean that the case is dismissed or over because the prosecutor can still file a criminal charge against them, but the person will be released without having to post a bond. If an arrested person bonds out immediately, he would not have a 1st Appearance and would not see the judge. Some crimes, such as Domestic Violence, are not entitled to be set a bond until the person goes before the judge at 1st Appearance. Here is a video from Justin Bieber’s case from when he was arrested for DUI/drag racing that shows what typically happens at a 1st Appearance hearing:
http://video.foxnews.com/v/3096973019001/justin-bieber-appears-in-court-for-dui-drag-racing-arrest/#sp=show-clips
What happens at an Arraignment?
This is an arrested person’s first court date after 1st Appearance. The person is called before the court to answer the charge. In the video, everyone is wearing street clothes and not jail jumpsuits so that is our 1st clue it is an Arraignment. If the arrested person pleads guilty, the judge would then sentence them according to a plea agreement or if it is an “open plea” (no agreement between the prosecutor and criminal attorney or suspect), however the judge decides is appropriate for the crime. If the person, his lawyer, or if assigned a public defender pleads “NOT GUILTY”, the case has to be set for trial or a Pre-Trial Conference/Disposition/Calendar Call/Status Conference date. Different counties in Florida use different terms, but they all act the same way. These calendar dates insure that criminal cases keep moving along. THIS IS WHAT THE ARGUMENT AND ALLEGED FIGHT WAS ABOUT!
So what was happening in that court room? Why did a judge allegedly punch a criminal defense lawyer?
The public defender was pleading people “not guilty”, so the cases had to be set for trial or the Pre-Trial court date. In Florida, criminal defendants are entitled to a speedy trial. (The speedy trial time limit for a misdemeanor is 90 days. The speedy trial time limit for a felony is 175 days). The public defender was trying to preserve his client’s speedy trial rights, but at the same time, get more time to prepare a defense to the criminal charges. In Florida, if the defendant or his attorney requests a continuance or delay of the case, the case law (appellate courts) have held that is a waiver of speedy trial. So the public defender was trying to get THE JUDGE to set the case for a Pre-Trial date instead of trial. The judge, either knowing the case law or not normally a criminal judge) wanted the Public Defender to commit to a trial or ask for a Pre-Trial date which would be a continuance (potentially) and speedy trial would be waived. The judge might also not want cases coming back for ineffective assistance of counsel or for the Public Defender to be able to complain later on that he was not prepared for trial. So we ended up with a staring contest. The lawyer wanting the judge to set it for a Pre-Trial so he could preserve his client’s speedy trial rights and the judge who wanted a commitment from the public defender to set it for trial or waive his client’s speedy trial rights. With neither side blinking, we ended up with a judge allegedly punching a public defender out in the hallway. A black eye for BOTH judges and public defenders in the public eye.
There is a time to fight for your client and a correct way to fight in court for your client. You want the attorney representing you in court to fight for you, but in a way that the prosecutor and the judge on your case respects the way the criminal lawyer fights for you!
If you have been arrested for a crime, retain an experienced criminal defense attorney that will stand up for you!
Thomas C. Grajek – 863-688-4606
- NCDD
Battery is a very serious crime that carries up to 1 year in the Polk County Jail. The officer turned himself in to the jail and bonded out. Battery is considered a crime of violence and can have serious repercussions in background searches and a person’s ability to find a job or rent an apartment.
There are a number of defenses to this crime such as self-defense and defense of others. If you have been charged with this crime, you may be entitled to file a “Stand Your Ground” motion that could result in the criminal charges being dismissed. Many people have heard of these types of motions through the Trayvon Martin and George Zimmerman case. Many criminal defense attorneys do not file these in battery or Domestic Violence cases, but if there are grounds supporting such a motion I do. I am not afraid to stand up for my clients and put in the work and effort to fight for my client’s freedom and reputation in court!
CALL NOW AND SPEAK TO AN AGGRESSIVE POLK COUNTY CRIMINAL DEFENSE LAWYER.
FREE OFFICE CONSULTATION – EXPERIENCE COUNTS!
You will not have to drive to another county. Office – Lakeland, Polk County
Thomas C. Grajek 863-688-4606
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