In Florida, law enforcement decides whether to arrest, regardless of the preference of the victim, and regardless of whether the victim wants to “press charges” or not. Similarly, the assistant state attorney (prosecutor) decides whether to file charges by filing an information or indictment, regardless of the preference of the victim.
Why would a person get arrested if the victim does not want them arrested?
If after an investigation the police determine that there is probable cause that a crime was committed, the police will oftentimes make an arrest. The police will then turn over the case to the assistant state attorney (also called the “prosecutor”) handling the case.
The prosecutor will then begin an investigation (called a “pre-filling investigation” or “PFI”). During the PFI, the prosecutor will usually reach out to the victim. If the prosecutor decides, after speaking with the victim, that it is in the state’s interest to proceed, then the prosecutor may decide to go forward with charges, regardless if it is the victim’s desire or not.
This most often happens in domestic violence situations, when a defendant has been arrested and charged with the crime of domestic battery. Sometimes--particularly if the defendant has a prior history involving domestic violence--even if the victim tells the prosecutor that they do not wish to proceed, the prosecutor may decide to go forward anyway.
What are some reasons why a prosecutor might go forward even if the victim doesn't want to?
There can be many reasons why a prosecutor may proceed with criminal charges against the wishes of the victim, some of the more common are:
The prosecutor believes that he or she is protecting the victim
The prosecutor believes that he or she is protecting the community
The defendant has a lengthy criminal history
There have been similar cases that were dropped involving the same defendant
The victim has the right to be heard
Florida law says that the victim has the right to be heard in any proceeding during which a right of the victim is implicated. This means that the victim essentially has the right to attend and the right to speak at all of the substantive hearings of the defendant. Hearings can include the defendant’s pretrial conferences, bond hearings, plea date, and sentencing hearing.
In Florida a victim has the right to be heard, but this does not mean that the prosecutor has to do as they say. Nevertheless, a victim can make his or her opinion known to the judge by speaking in court if they wish.
What is a Waiver of Prosecution?
A waiver of prosecution is an affidavit (a sworn-to legal document) where a victim indicates that, among other things, it is not their desire to proceed with charges against the defendant. A waiver of prosecution does not "drop" the charges or mean that the prosecutor can no longer proceed with the charges, it is simply a formal acknowledgment of the victim's preference. A waiver of prosecution can nevertheless be very influential with the prosecutor and judge. Please feel free to contact us if you would like more information about filing a waiver of prosecution.
Get help with your case or legal issue
If you have more questions about domestic battery charges or would like help with a particular issue, please feel free to call us for a free consultation. Also, visit our Domestic Charges page for a tremendous amount of information about defenses to domestic battery and how our attorneys fight domestic battery charges.