In Miami-Dade courts, the fundamental difference between a misdemeanor and a felony domestic violence charge is the potential penalty.
- A misdemeanor conviction, like simple battery, typically leads to penalties of up to one year in county jail, probation, and fines.
- A felony conviction, such as aggravated battery, means you face more than a year in state prison and the permanent loss of civil rights, like your right to own a firearm.
The charge filed against you is not set in stone; it’s an initial accusation. The final charge depends on specific factors like the extent of injury, whether a weapon was involved, or your prior record. Prosecutors review these details closely, and a skilled defense presents evidence to challenge their interpretation of events.
If you have a question about a domestic violence charge you or a loved one is facing, call us. Our team at Rossen Law Firm is here to provide clarity. Call (786) 705-8300 for a confidential consultation.
Key Takeaways for Domestic Violence Charges in Miami
- The one-year mark separates misdemeanors from felonies. A misdemeanor conviction results in up to 364 days in county jail, whereas a felony means a minimum of one year and a day in state prison and the lifelong label of a "convicted felon."
- Specific factors elevate a charge to a felony. Prosecutors will seek felony charges if the incident involved choking, severe injury, a deadly weapon, or if you have a prior domestic violence conviction.
- All domestic violence convictions have permanent consequences. Even a misdemeanor conviction in Florida stays on your record forever, as it is ineligible for sealing or expungement, and results in a lifetime ban on owning firearms under federal law.
What Actually Separates a Misdemeanor from a Felony in a Domestic Violence Case?
The One-Year Dividing Line: County Jail vs. State Prison
The primary distinction is the severity of punishment. In Florida, the justice system draws a hard line based on the length of incarceration.
- Misdemeanor: Punishable by up to 364 days in a county jail. While this is a serious penalty that costs you your job and disrupts your family, it is legally distinct from a prison sentence.
- Felony: Punishable by a minimum of one year and one day in a state prison. This is a sentence that carries not only more time but also a lifetime of collateral consequences.
How Does Florida Law Define "Domestic Violence"?
Many people are surprised to learn that "domestic violence" is not a standalone crime in Florida. Instead, it is a legal classification applied to other crimes, like assault or battery, when they are committed between “family or household members.”
Under Florida Statute § 741.28, this special classification applies to incidents between:
- Spouses or ex-spouses
- People related by blood or marriage
- People living together as a family, now or in the past
- Parents who share a child, regardless of marital status
This classification is significant because it triggers specific, mandatory penalties that do not apply to a standard battery charge, such as required jail time if an injury is alleged and the completion of a lengthy intervention program.
What Does It Mean to be a "Convicted Felon"?
A felony conviction follows you for life, creating barriers long after you have served your time.
The long-term civil rights implications are severe:
- Loss of Firearm Rights: A lifetime ban on owning or possessing a firearm or ammunition under federal law.
- Loss of Voting Rights: In Florida, you lose the right to vote until you have completed your full sentence, including any probation or parole.
- Professional and Employment Barriers: You may find it difficult or impossible to obtain certain professional licenses for fields like nursing, real estate, or education. Many employers are hesitant to hire someone with a felony record.
This explains why you must mount a strong defense against a felony domestic violence charge. A reduction from a felony to a misdemeanor makes a world of difference for your future.
The Four Factors That Elevate a Miami DV Charge from a Misdemeanor to a Felony
When police respond to a domestic call, they make an arrest and write a report, recommending a charge. However, the final decision rests with the Miami-Dade State Attorney's Office. Prosecutors review the case for specific "aggravating factors" that turn a simple misdemeanor into a serious felony. Here are the four we see most frequently.
1. Do You Have a Prior Domestic Violence Conviction?
Under Florida Statute § 784.03, a second or subsequent conviction for battery automatically becomes a third-degree felony. This is true even if the new accusation involves no visible injuries at all.
The stakes are immediately higher. An argument that might have resulted in a misdemeanor probation sentence the first time could now expose you to a maximum of five years in state prison. Prosecutors in Miami-Dade County are particularly stringent with repeat offenders, given the high volume of domestic violence cases filed each year.
2. Was There "Great Bodily Harm" or "Permanent Disfigurement"?
If an alleged battery causes severe injuries, prosecutors may file the charge as Aggravated Battery under Florida Statute § 784.045, a second-degree felony. But what do these legal terms actually mean?
- "Great bodily harm" typically refers to injuries like broken bones, deep cuts requiring stitches, or internal injuries.
- "Permanent disfigurement" could mean a lasting scar.
The evidence for this is subjective; a police officer's initial description of an injury is not the same as a formal medical diagnosis. We frequently challenge the prosecution's claims about the severity of an injury, as this is a key area where a defense is built.
3. Was There Any Allegation of Choking or Strangulation?
Florida law treats choking with extreme seriousness. There is a specific felony charge, Domestic Battery by Strangulation, outlined in Florida Statute § 784.041. Lawmakers designated this as a third-degree felony because research has shown it to be a significant predictor of future lethal violence.
A key aspect of this charge is that it does not require visible injury. The allegation alone is typically enough for the State to file a felony. An alleged victim may claim their breathing was impeded, and without marks on their neck, an arrest is made and felony charges are filed. This makes it one of the most dangerous accusations but also one of the most defensible, as it frequently boils down to one person's word against another's.
4. Was a "Deadly Weapon" Used?
Using a "deadly weapon" during a battery also elevates the offense to Aggravated Battery. While this obviously includes items like a gun or a knife, the legal definition is much broader. A "deadly weapon" is any object used in a way that is likely to produce great bodily harm or death.
This means a baseball bat, a heavy glass, a lamp, or even a vehicle could be considered a deadly weapon depending on how it was allegedly used. The prosecution must prove that the object was used with dangerous intent, which is another area where a knowledgeable criminal defense attorney raises significant challenges.
Beyond Prison: The Lasting Consequences of Any Domestic Violence Conviction in Florida
Even if you avoid a felony and the charge remains a misdemeanor, a conviction for domestic violence in Florida carries mandatory penalties and lifelong consequences that catch many people by surprise.
Your Record Cannot Be Sealed or Expunged
This is perhaps the most damaging long-term consequence. Florida law explicitly prohibits the sealing or expungement of any criminal case where the person was found guilty of a domestic violence charge. This means the charge will appear on background checks for employment, housing applications, and professional licenses for the rest of your life. There is no waiting period after which it is removed.
You Will Lose Your Right to Own a Firearm
Under federal law, known as the Lautenberg Amendment, any conviction for a crime of domestic violence (even a misdemeanor) results in a lifetime ban on purchasing or possessing firearms and ammunition. This federal prohibition is absolute and applies to every state, including Florida.
You Must Complete a 26-Week Intervention Program
Anyone adjudicated guilty of domestic violence must, by law, enroll in and complete a Batterer's Intervention Program (BIP). This involves attending weekly classes for 26 weeks, and you are responsible for the full cost of the program. Failure to attend any session or complete the program is a violation of your probation and results in you being sent to jail.
A "No Contact" Order Will Be Issued
From the moment of arrest, the court will almost certainly issue a "No Contact" order. This order forbids you from having any contact whatsoever with the alleged victim. This includes in-person contact, phone calls, text messages, emails, or even messages passed through a third party. This means you are unable to return to your own home or see your children. Violating the order, even with a seemingly innocent text, is a separate criminal offense that lands you back in jail.
Handling the Miami-Dade Court Process: What to Expect
First Appearance & Bond
Within 24 hours of your arrest, you will be brought before a judge for your first appearance. At this brief hearing, the judge will review the arrest report to see if there was probable cause for your arrest, set your bond amount, and officially issue the No Contact Order.
The State Attorney's Filing Decision
After the domestic violence arrest, the case goes to the prosecutor's office. A prosecutor will review the police report, witness statements, and any other evidence to decide what formal charges, if any, to file.
An effective defense attorney contacts the prosecutor during this phase to present your side of the story, provide exculpatory evidence, and argue for the charge to be reduced or dropped entirely.
Arraignment
This is your first formal court appearance after the State has filed charges. At the arraignment, the formal charges will be read to you, and you will enter a plea. The court will then set future dates for pretrial conferences and motions.
Discovery and Defense
After the arraignment, your legal team will file a Notice of Discovery, which is a formal request for all of the State's evidence against you. This includes police reports, all witness statements, photos, 911 recordings, and body camera footage. This is where we begin to meticulously build your defense by analyzing the strengths and weaknesses of the prosecutor’s case and identifying inconsistencies or violations of your rights.
Each of these steps is an opportunity. It's a chance to build a defense, negotiate with the prosecutor, and work toward a better outcome than the one you are currently facing.
Frequently Asked Questions About Miami Domestic Violence Cases
Can the alleged victim just "drop the charges"?
No. This is one of the biggest misconceptions in domestic violence cases. Once the police are called and an arrest is made, the decision to prosecute belongs solely to the Miami-Dade State Attorney's Office. While the alleged victim's wishes are a factor the prosecutor will consider, the State of Florida is the party pressing charges, not the individual. The State sometimes proceeds with a case even if the alleged victim recants or expresses a desire not to move forward.
What if I was just defending myself?
Self-defense is an absolute and valid legal defense in Florida. If you used a reasonable and necessary level of force to protect yourself from imminent harm, it may be possible to get the charges dismissed. However, asserting a self-defense claim requires presenting evidence to show that you were not the primary aggressor in the conflict.
Do I have to move out of my house if a No Contact Order is issued?
If you live with the alleged victim, the answer is yes. The No Contact Order will prohibit you from returning to the shared residence as long as the order is in place. An domestic violence attorney may file a motion with the court to modify the No Contact Order to allow for limited contact (for example, regarding children) or to permit you to return to the home, but there is no guarantee a judge will grant this request.
Will I be deported if I am not a U.S. citizen?
A domestic violence conviction has extremely severe immigration consequences. Under federal immigration law, it may be classified as a "crime of moral turpitude" or an "aggravated felony," which could lead to deportation, regardless of your current legal status. If you are not a U.S. citizen, you must consult with a criminal defense attorney who understands these complicated immigration implications.
Your Future is on the Line. Let’s Fight For It, Together.
The difference between a misdemeanor and a felony, between probation and prison, could come down to a single piece of evidence or one well-argued legal motion.
At Rossen Law Firm, our practice is focused on defending individuals facing these exact situations. We understand the stakes involved in a Miami domestic violence case and how to build a defense tailored to the specific facts of your case.
Your next step is to get clear, honest answers about your options and your rights. Call us at (786) 705-8300 to discuss your case.