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Marsy’s Law – The Potential Impact on Domestic Violence Cases

Melinda Morris
By: Melinda Morris
Jul. 08 2019

 

Marsy’s Law can have potential impacts on a defendant’s Domestic Violence case (Domestic Battery, Domestic Assault, and Injunctions for protection against Domestic Violence).  It is important to understand the impacts this law can have on your case.

 

What is Marsy’s Law?

Marsy’s Law was passed by Florida voters on November 6, 2018 (by 61% of the vote) and became law on January 8, 2019.

At its most basic level, Marsy’s Law is a victim’s rights law.  This Florida Constitutional Amendment provides alleged victims with a list of rights that they may exercise.

The Amendment is found in Article I (Declaration of Rights) Section 16 (Rights of accused and of victims) of the Florida Constitution.

Some of the victim’s rights included in the Amendment include:

  • The right to have standing in court
  • The right to be present at all proceedings involving the case
  • The right to reasonable and timely notice of proceedings
  • The right to be heard in any proceeding during which a right of the victim is implicated including release, plea, sentencing, disposition, parole, revocation, expungement or pardon
  • The right to timely notice of any release, escape or death of the accused, if the accused is in custody or on supervision at the time of death
  • The right to proceedings free from unreasonable delay
  • The right to timely information about the outcome of the case

 

Why is it Called Marsy’s Law?

Marsy’s Law is named for Marsy Nicholas, a California college student who was murdered in 1983 by her ex-boyfriend. A few days after her death, her mother and brother walked into a grocery store where they were confronted by Marsy’s accused murderer.  California was the first state to enact victim’s rights laws under Marsy’s Law in 2008. Many other states followed including Florida in 2019.

How is Marsy’s Law Different Than What Already Existed?

There has been for some time “ Rights of accused and of victims” present in the Florida Constitution.  The Marsy’s Law Amendment passed by Florida Voters expands upon already existing rights. See below for the text of the Florida Constitutional SECTION 16. Rights of accused and of victims as it stood before the Marsy’s Law Amendment and after enactment of the Amendment.

How is Marsy’s Law Affecting Criminal Domestic Violence Cases in Pinellas County?

The Legislature has yet to provide specific guidance for the implementation of Marsy’s Law in Florida.  Thus, each Florida County is left to its own devices to determine the proper and appropriate implementation of the Amendment.

As of this writing we have observed the following changes in process and procedure:

  • Criminal Complaint / Arrest Affidavits have in some cases been redacted to remove information pertaining to the alleged victim’s name, age of the alleged victim, location of the alleged incident, and other information that may identify the alleged victim.
  • Clerk of the Court Docket information has in some cases been removed to hide the name of the alleged victim.
  • Increased weight given to the wishes of the alleged victim in terms of the prosecution seeking jail or prison time.
  • Deference given to the alleged victim to approve or disapprove of diversion or pre-trial intervention programs (including the Domestic Violence Deferred Prosecution Program).
  • Increased latitude provided to the alleged victim to seek restitution.

How may your Domestic Violence Case be Impacted by Marsy’s Law?

The Pinellas County State Attorney’s Office has always respected the rights of alleged victims in criminal cases.  With the enactment of Marsy’s Law, we believe that the State Attorney will give even more weight to the role of the alleged victim.  We specifically see the following as potential impacts to a Domestic Violence case:

The following is just a sampling of issues we believe could come up in a Domestic Violence case with respect to Marsy’s Law:

 

The right to have the safety and welfare of the victim and the victim’s family considered when setting bail, including setting pretrial release conditions that protect the safety and welfare of the victim and the victim’s family.

POTENTIAL IMPACT:
Possible expansion of the No Contact Order typically entered in Domestic Battery cases to include family members.


A victim shall have the following specific rights upon request: The right to be heard in any public proceeding involving pretrial or other release from any form of legal constraint, plea, sentencing, adjudication, or parole, and any proceeding during which a right of the victim is implicated.

POTENTIAL IMPACT:
At a Change of Plea (entering a plea before the Court), the alleged victim could make a statement to the Court in an effort to have the plea rejected by the Court.


A victim shall have the following specific rights upon request: The right to confer with the prosecuting attorney concerning any plea agreements, participation in pretrial diversion programs, release, restitution, sentencing, or any other disposition of the case.

POTENTIAL IMPACT:
A defendant who may otherwise have qualified for a diversion or pre-trial intervention program (Domestic Violence Deferred Prosecution Program) that may have resulted in a dismissal of the charges may now be denied access to such a program based on the wishes of the alleged victim.  Similarly, a defendant who may otherwise be eligible to receive a Withhold of Adjudication (legally not a conviction on the matter) may not be offered such a disposition based on the wishes of the alleged victim.


A victim shall have the following specific rights upon request: The right to be informed of clemency and expungement procedures, to provide information to the governor, the court, any clemency board, and other authority in these procedures, and to have that information considered before a clemency or expungement decision is made; and to be notified of such decision in advance of any release of the offender.

POTENTIAL IMPACT:
Many defendants who complete a diversion program and receive a dismissal of their Domestic Battery charges or negotiate a plea and receive a Withhold of Adjudication (not a conviction on the matter) are eligible under Florida law to have their criminal history record expunged or sealed.  Here, the alleged victim may object to such procedures. The resolution to such an objection is unclear under the current law.


The right to full and timely restitution in every case and from each convicted offender for all losses suffered, both directly and indirectly, by the victim as a result of the criminal conduct.

POTENTIAL IMPACT:
A defendant who is convicted may be liable for restitution above and beyond that typically sought in a Domestic Violence case.  Commonly, restitution may be recovered for direct losses. The analogy is that if a house was broken into and the front door was damaged by the burglar, the victim could recover the cost of the broken front door, but not recover the cost for a new security system, security lighting, and an armed guard to stand watch.  By the language of §9 it would appear that alleged victims can go beyond direct losses and look to indirect losses as well. We envision that this may include not just direct losses such as medical bills, but potentially also add on-going counseling, moving costs, and other indirect costs.

 

What Are the Potential Issues with Marsy’s Law in Florida?

The language of the Marsy’s Law Statute indicates that the alleged victim must “opt-in” to many of the rights provided under the Constitutional Amendment (see Section (6) – “A victim shall have the following specific rights upon request:”  Thus, a Defense Attorney may challenge whether or not the alleged victim in fact opted-in to such rights and whether or not there is a record of such an election.

Inconsistent application of the law is also an issue.  We have already observed inconsistent application of the new law within the local counties and between cases in the same county.

As well, many have argued that the Amendment is vague.  Vagueness is an argument that may be utilized to find an Amendment unconstitutional.

If you have been arrested for Domestic Battery you should immediately consult with an attorney who can assess the facts and circumstances of your arrest and formulate a plan for your best defense.  Contact the Morris Law Firm at (727) 388-4736 for a strategic review of your Domestic Violence case. The Morris Law Firm represents clients throughout the Tampa Bay Area, including Pinellas, Hillsborough, Sarasota, Pasco, and Manatee counties.

 


Here is the Amendment to Article I (Declaration of Rights) Section 16 (Rights of accused and of victims) – the following is what appeared on the ballot as passed:

  1. 6 CONSTITUTIONAL REVISION ARTICLE I, SECTION 16 ARTICLE V, SECTIONS 8 AND 21 ARTICLE XII, NEW SECTION

BALLOT TITLE:

Rights of Crime Victims; Judges

BALLOT SUMMARY:

Creates constitutional rights for victims of crime; requires courts to facilitate victims’ rights; authorizes victims to enforce their rights throughout criminal and juvenile justice processes.Requires judges and hearing officers to independently interpret statutes and rules rather than deferring to government agency’s interpretation. Raises mandatory retirement age of state justices and judges from seventy to seventy-five years; deletes authorization to complete judicial term if one-half of term has been served by retirement age.

 

FULL TEXT:

ARTICLE I DECLARATION OF RIGHTS

SECTION 16. Rights of accused and of victims.—

(a) In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation, and shall be furnished a copy of the charges, and shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties the trial will take place. Venue for prosecution of crimes committed beyond the boundaries of the state shall be fixed by law.

(b) To preserve and protect the right of crime victims to achieve justice, ensure a meaningful role throughout the criminal and juvenile justice systems for crime victims, and ensure that crime victims’ rights and interests are respected and protected by law in a manner no less vigorous than protections afforded to criminal defendants and juvenile delinquents, every victim is entitled to the following rights, beginning at the time of his or her victimization:

(1) The right to due process and to be treated with fairness and respect for the victim’s dignity.

(2) The right to be free from intimidation, harassment, and abuse.

(3) The right, within the judicial process, to be reasonably protected from the accused and any person acting on behalf of the accused. However, nothing contained herein is intended to create a special relationship between the crime victim and any law enforcement agency or office absent a special relationship or duty as defined by Florida law.

(4) The right to have the safety and welfare of the victim and the victim’s family considered when setting bail, including setting pretrial release conditions that protect the safety and welfare of the victim and the victim’s family.

(5) The right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim.

(6) A victim shall have the following specific rights upon request:

a. The right to reasonable, accurate, and timely notice of, and to be present at, all public proceedings involving the criminal conduct, including, but not limited to, trial, plea, sentencing, or adjudication, even if the victim will be a witness at the proceeding, notwithstanding any rule to the contrary. A victim shall also be provided reasonable, accurate, and timely notice of any release or escape of the defendant or delinquent, and any proceeding during which a right of the victim is implicated.

b. The right to be heard in any public proceeding involving pretrial or other release from any form of legal constraint, plea, sentencing, adjudication, or parole, and any proceeding during which a right of the victim is implicated.

c. The right to confer with the prosecuting attorney concerning any plea agreements, participation in pretrial diversion programs, release, restitution, sentencing, or any other disposition of the case.

d. The right to provide information regarding the impact of the offender’s conduct on the victim and the victim’s family to the individual responsible for conducting any presentence investigation or compiling any presentence investigation report, and to have any such information considered in any sentencing recommendations submitted to the court.

e. The right to receive a copy of any presentence report, and any other report or record relevant to the exercise of a victim’s right,except for such portions made confidential or exempt by law.

f. The right to be informed of the conviction, sentence, adjudication, place and time of incarceration, or other disposition of the convicted offender, any scheduled release date of the offender, and the release of or the escape of the offender from custody.

g.The right to be informed of all postconviction processes and procedures, to participate in such processes and procedures, to provide information to the release authority to be considered before any release decision is made, and to be notified of any release decision regarding the offender. The parole or early release authority shall extend the right to be heard to any person harmed by the offender.

h. The right to be informed of clemency and expungement procedures, to provide information to the governor, the court, any clemency board, and other authority in these procedures, and to have that information considered before a clemency or expungement decision is made; and to be notified of such decision in advance of any release of the offender.

(7) The rights of the victim, as provided in subparagraph (6)a.,subparagraph (6)b., or subparagraph (6)c., that apply to any first appearance proceeding are satisfied by a reasonable attempt by the appropriate agency to notify the victim and convey the victim’s views to the court.

(8) The right to the prompt return of the victim’s property when no longer needed as evidence in the case.

(9) The right to full and timely restitution in every case and from each convicted offender for all losses suffered, both directly and indirectly, by the victim as a result of the criminal conduct.

(10) The right to proceedings free from unreasonable delay, and to a prompt and final conclusion of the case and any related post judgment proceedings.

a. The state attorney may file a good faith demand for a speedy trial and the trial court shall hold a calendar call, with notice,within fifteen days of the filing demand, to schedule a trial to commence on a date at least five days but no more than sixty days after the date of the calendar call unless the trial judge enters an order with specific findings of fact justifying a trial date more than sixty days after the calendar call.

b. All state-level appeals and collateral attacks on any judgment must be complete within two years from the date of appeal in non-capital cases and within five years from the date of appeal in capital cases, unless a court enters an order with specific findings as to why the court was unable to comply with this subparagraph and the circumstances causing the delay. Each year, the chief judge of any district court of appeal or the chief justice of the supreme court shall report on a case-by- case basis to the speaker of the house of representatives and the president of the senate all cases where the court entered an order regarding inability to comply with this subparagraph. The legislature may enact legislation to implement this subparagraph.

(11) The right to be informed of these rights, and to be informed that victims can seek the advice of an attorney with respect to their rights. This information shall be made available to the general public and provided to all crime victims in the form of a card or by other means intended to effectively advise the victim of their rights under this section.

(c) The victim, the retained attorney of the victim, a lawful representative of the victim, or the office of the state attorney upon request of the victim, may assert and seek enforcement of the rights enumerated in this section and any other right afforded to a victim by law in any trial or appellate court, or before any other authority with jurisdiction over the case, as a matter of right. The court or other authority with jurisdiction shall act promptly on such a request, affording a remedy by due course of law for the violation of any right. The reasons for any decision regarding the disposition of a victim’s right shall be clearly stated on the record.

(d) The granting of the rights enumerated in this section to victims may not be construed to deny or impair any other rights possessed by victims. The provisions of this section apply throughout criminal and juvenile justice processes, are self-executing, and do not require implementing legislation. This section may not be construed to create any cause of action for damages against the state or a political subdivision of the state,or any officer, employee, or agent of the state or its political subdivisions.

(e) As used in this section, a “victim” is a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed. The term “victim” includes the victim’s lawful representative, the parent or guardian of a minor, or the next of kin of a homicide victim, except upon a showing that the interest of such individual would be in actual or potential conflict with the interests of the victim. The term “victim” does not include the accused. The terms “crime” and “criminal” include delinquent acts and conduct. Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.

Words underlined are additions; words stricken are deletions