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counselor94
counselor94, Lawyer
Category: Criminal Law
Satisfied Customers: 20
Experience:  40 years active practice of law
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If I am a victem of domestic battery with a deadly weapon (

Customer Question

If I am a victem of domestic battery with a deadly weapon ( 2 counts against my husband) and I send a noterized letter to the state attorney's office stating that I do not wish to pursue the charges what happens to my rights to protect myself with a perminate restraining order in the family law court and how does it effect me on the criminal side?
Submitted: 2 years ago.
Category: Criminal Law
Expert:  counselor94 replied 2 years ago.

counselor94 :

Becoming involved in a criminal matter is generally very stressful. Please allow me to address some of your concerns.

counselor94 :

Sounds like you are involved in a very difficult situation.

counselor94 :

What do you want to do. Are you trying to get the felony criminal charges dismissed, or are you trying to get the restraining order set aside; or, both?

Customer:
Customer:

I have a family court case for a restraining order. The hearing to extend it or make it permenant is this month.

counselor94 :

One the felony criminal charges were filed by the State, you become merely a witness. The decision regarding whether to pursue the criminal charges rests with the prosecutor's office, not you. While the prosecutor may listen to you regarding whether you would like the charges pursued, or not, the final decision is the prosecutor's, and not yours.

Customer:

The state attorney office on the criminal case is deciding to go forward with the charges because my husband is begging me to send a certified letter to his attorney stating that I do not wish to pursurse the charges. His attorney is saying that if I pursue he can do up to 30 years, 15 years for each count. If I do not he still my do time or just probation.

Customer:

Will it effect me on the family court side regarding the restraining order. I was told the divorce, the restraining order and the criminal case goes hand in hand?


 

Customer:

The state has not yet filed them I guess they are about too, his attorney use to be a criminal judge and has been able to hold them off but as of today they want to move forward


 

counselor94 :

The situation that you are finding yourself in is not unusual in these types of matters. People who are involved in domestic cases, like divorce often have arguments which then result in criminal charges being filed in addition to the issues being contested in the divorce.

Customer:

No actually my husband filed for divorce a month prior to the incident but did not serve me so I had no idea about the divorce. Naturally after the incident I found out and am pursing the divorce but as the respondant

counselor94 :

What is happening to you is exactly what I was describing. The decision to pursue prosecution is the prosecutor's, and not yours. Even if you write the letter, the prosecutor may ignore it, and decide to prosecute anyway. You are only a witness. The prosecutor makes the actual decisions regarding whether to proceed to charge your husband, what charges to file, and whether to proceed with prosecution, not you..

Customer:

Ok so on the criminal side it will not affect me, how about on the family court side regarding the divorce and the restraining order


 

counselor94 :

If you feel that the potential sentence is too harsh, there is no harm in advising the prosecutor regarding your feelings. If the crime did not happen, you should also tell that to the prosecutor. However, it is important for you to understand that even if you want to try and get you husband out of the criminal charges and penalties, you may not have that power. That is the prosecutor's decision, not yours.

Customer:

I absoulutly told the truth. My concern is the restraining order and the divorce then? I know I cannot get him out of the charges, Lord knows he did this to himself but for him to go to jail for up too 30 years when what he really needs is mental health consulting and most likely medication.


 

counselor94 :

Regarding the restraining order through the divorce proceeding, you need to be consistant. If you are going to tell the prosecutor that no violence occurred, or that you caused the violence to occurr, it will be difficult to convince the divorce judge that that you were a victiom, and are afraid of your husband. To be beieved, you need to be consistent. You need to confer with your divorce attorney before you do anything. Before you speak with the prosecutor; before you decide how to proceed in either the divorce or criminal matters, talkd to your own divorce attorney so that you are consistent, believable, and honest throughout.

counselor94 :

If your husband needs mental health treatment, tell that to the prosecutor.

counselor94 :

I hope that this information was helpful. I have enjoyed this opportunity to assist you.

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counselor94, Lawyer
Category: Criminal Law
Satisfied Customers: 20
Experience: 40 years active practice of law
counselor94 and 8 other Criminal Law Specialists are ready to help you

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