Protective Injunction for Stalking Defense Attorneys in Florida
Defending Against Stalking Injunctions
What is an injunction?
Under Florida law, an injunction, also known as “protective order,” “protective injunction,” or “restraining order,” is a legal and equitable remedy issued in the form of a court order against another person. If someone violates an injunction that has been issued against him or her, he or she can face both criminal and civil consequences, including monetary fines and imprisonment. The offender can also be held in contempt of court.
There are five types of injunctions in Florida, which include:
- Sexual violence
- Domestic violence
- Dating violence
- Repeat violence
How are each of the above types of injunctions similar to one another?
- The petitioner is the party who files the petition seeking an injunction and the respondent is the individual against whom the injunction is sought.
- The petition must be notarized or signed in front of the court clerk, as it is a sworn document.
- The judge may order a temporary injunction prior to when a hearing is held in court.
- The temporary injunction, if approved, remains in effect until the time the hearing is held.
- The petition is usually served on the respondent by the county sheriff.
- A hearing can take place even if the temporary injunction was denied by the judge.
- The respondent is entitled to receipt of notice of the hearing.
- Both the respondent and the petitioner can bring witnesses to the hearing to testify on their behalf.
- Both the respondent and petitioner can bring evidence to the hearing to support their respective positions.
- At the conclusion of the hearing, a judge may choose to issue a permanent injunction, which remains in effect until the court changes it or it expires.
- If the respondent violates the permanent injunction, he or she can face criminal penalties, including jail time and other serious consequences.
What makes a stalking injunction unique?
- There must be at least two incidents of cyberstalking or stalking;
- The victim, or the parent or legal guardian of a minor (a child under the age of eighteen) residing at home, may file a petition.
- Provides protection for adults and minors from future cyberstalking or stalking.
- If a temporary injunction is issued against the respondent, he or she may be ordered to turn in to law enforcement all ammunition and firearms.
- If a permanent injunction is issued against the respondent, he or she must turn in to law enforcement all ammunition and firearms.
- Respondent may be ordered by the court to obtain mental health treatment at his or her own expense.
What is stalking?
Under Florida law, “a person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree.” Moreover, “[a] person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.”
Florida law further provides that to “harass” means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. Additionally, “cyberstalk” means:
- To engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person; or
- To access, or attempt to access, the online accounts or Internet-connected home electronic systems of another person without that person’s permission, causing substantial emotional distress to that person and serving no legitimate purpose.
What will sustain an injunction against stalking?
An individual who is looking to obtain a stalking injunction must establish that there were at least two incidents of stalking. Florida courts hold that a petitioner is a victim of stalking when the respondent has:
- A violent criminal history;
- Destroyed the personal property of the petitioner;
- An additional protective order that was issued against him or her from another jurisdiction;
- Used or made threats to use weapons against the petitioner;
- Threatened to cause harm to the petitioner, his or her family members, and/or close friends;
- Threatened, cyberstalked, harassed, stalked, or abused the petitioner in the past; and/or
- Committed the act of stalking.
In order to obtain a stalking injunction, the petitioner must present to the court evidence of the above. If the petitioner is able to submit sufficient evidence of stalking, then the court may serve the respondent with a temporary injunction. The court is not required to submit notice to the respondent that a temporary injunction has been issued against him or her, which means that he or she may not know about the injunction for several days or weeks.
Who can file a stalking injunction?
In Florida, a victim of stalking or the parent(s) or legal guardian(s) of a minor who is a victim of stalking may file a petition.
How can a stalking injunction be dismissed, vacated, modified, changed, or dissolved, or removed once it is in effect?
A stalking injunction can only be dismissed, vacated, modified, changed, removed, or dissolved through the court. In order to obtain relief from a stalking injunction, a party must prove that the facts supporting the original injunction no longer exist such that keeping the injunctive in effect serves no valid purpose.
How does a victim of stalking obtain a stalking injunction?
Under Florida law, a petitioner must file with the court a Petition for Injunction for Protection Against Stalking. Soon thereafter, a judge reviews the petition and decides whether or not to issue a temporary injunction against the respondent. At this stage, the judge does not question the veracity of the facts raised in the petition.
Once the judge determines whether or not to issue a temporary injunction against the respondent, the next step in the process is called a return hearing, which happens fifteen days or less from the date when the temporary injunction was issued. During this hearing, the judge decides whether a permanent injunction is warranted given the facts and circumstances of the case. Keep in mind that the judge may decide to deny both the temporary injunction and the hearing on the matter, as it is subject to his or her discretion.
What occurs at a stalking injunction hearing?
Once the petitioner files a petition, the judge may choose to schedule a hearing, even if he or she denied the temporary injunction. At this hearing, the petitioner has the burden of proof to establish that or she is entitled to a permanent injunction against the respondent. The petitioner can support his or her case by bringing forth evidence such as documentation, witnesses, and law enforcement to support his or her stalking allegations. The respondent can also bring said evidence to court to refute the petitioner’s claims. Both the petitioner and the respondent can cross-examine each other as well as all witnesses in the case. Once all of the evidence has been presented by the parties, the judge then decides whether to deny or grant a permanent injunction.
What occurs if the respondent violates the terms of a stalking injunction?
If the respondent violates the stalking injunction, he or she could be charged with a misdemeanor or felony, depending upon the facts of the case. This means that the respondent could be sent to jail and be ordered to pay significant monetary fines. The respondent can also be held in contempt of court.
Under what circumstances can a petitioner extend a stalking injunction that has an expiration date?
A petitioner can seek to extend a stalking injunction as long as he or she does so before the injunction expires. In rendering a determination as to whether or not to extend a stalking injunction, the judge does not require evidence that the petitioner has been subject to stalking after the permanent injunction has been issued. Specifically, the judge may evaluate the facts that supported the original injunction and any actions taken by the respondent to cause the petitioner to fear that he or she will be a victim of stalking once the injunction expires.
Frequently asked questions about stalking injunctions in Florida
What happens when a person files a stalking injunction?
When a petitioner files a petition, the judge overseeing the matter renders a determination as to whether to deny the temporary injunction and schedule a hearing, grant the temporary injunction and schedule a hearing within fifteen days or less, or deny the petition for the temporary injunction without holding a hearing.
If a judge approves the issuance of a temporary injunction, the respondent cannot have any further contact with the petitioner under the subsequent hearing takes place. During the hearing, both parties may present their cases. If the claims raised in the petition are misrepresented, exaggerated, or untrue, the lawyer for the respondent can seek to have the petition dismissed and the permanent injunction denied.
What happens if the respondent does not challenge the stalking petition?
If the respondent fails to challenge the petition, then the petitioner can present his or her case without the respondent being present to refute the allegations. This may result in the issuance of a permanent injunction against the respondent, which has serious implications. That is why it is critical for the respondent to attend the hearing and work with a seasoned Florida criminal defense attorney to represent his or her interests.
What happens if the court issues a permanent stalking injunction after the hearing?
Once the injunction has been approved by the court, the respondent must stop all contact with the petitioner and abide by its terms. At this time, the respondent will also be forced to surrender all ammunition and firearms to law enforcement. The respondent will also be barred from being in places where the petitioner is typically located, such as his or her home, place of worship, and school. The court can also order the respondent to attend an intervention program and/or mental health counseling at his or her own expense.
How long does a stalking injunction remain in effect?
A permanent injunction remains in effect until such time that the court changes it or when it expires, if the injunction includes an expiration date. If the petitioner wishes to extend the injunction, he or she must return to the court and seek said extension before the injunction expires.
The stalking injunction specifies that there is to be "no contact" between the petitioner and the respondent. What does “no contact” specifically mean?
“No contact” means that the respondent cannot be in contact with the respondent at any time, whether indirectly, directly, or through another individual such as a family member or friend.
How is a stalking injunction violated?
The respondent will be deemed in violation of the stalking injunction should he or she willfully, maliciously and repeatedly follow, harass, or cyberstalk the petitioner or threaten to do so.
What will happen if a person violates a stalking injunction?
If a respondent violates a stalking injunction, then he or she can face both civil and criminal penalties. Specifically, the respondent may be held in contempt of court. Also, he or she could face criminal penalties such as imprisonment, monetary fines, and other serious repercussions.
Are stalking injunctions public records?
Yes. Stalking injunctions are part of the public record, which means that anyone can view the criminal background of the respondent in this regard. This can have serious consequences for someone who is seeking gainful employment, housing, or a loan.
Can a person appeal a stalking injunction?
Yes. If a stalking injunction has been approved by the judge, the respondent has the option of appealing the case.
Will an expired stalking injunction still affect me?
An expired stalking injunction is public record and cannot be expunged. This means that the injunction, even though it is expired, can still seriously affect the life of the respondent for years to come. For instance, it may be a challenge for the respondent to obtain a loan as well as find gainful employment and housing since his or her criminal background is publicly accessible. That is why it is important for the respondent to appeal his or her case to avoid facing these severe consequences. Only a skilled Florida criminal defense attorney can advise the respondent as to the steps necessary to take in order to protect his or her legal rights and interests.
Do I need a Florida criminal attorney to represent me if a petition for a stalking injunction has been filed against me?
While there is no legal requirement to hire a criminal law attorney, it is still in the respondent’s best interests to work with a skilled Florida criminal defense attorney who is knowledgeable of the stalking injunction laws as well knows the ins and outs of the court system. Specifically, an attorney is in the best position to aggressively fight for the respondent’s rights to the fullest extent of the law, especially if the allegations raised by the petitioner are false, misleading, exaggerated, or misrepresented.
What are the repercussions of a stalking injunction?
There are several negative repercussions of a stalking injunction, which can be serious and negatively affect the life of the respondent for years to come. That is why it is essential for a respondent to work with a seasoned Florida criminal defense attorney who has the skills and experience necessary to launch the strongest defense possible.
Some of the negative repercussions associated with a stalking violence injunction are:
- No further contact with the petitioner. Once a stalking injunction has been issued by the court, it is important for the respondent to realize that even innocent contact can violate its terms, which could lead to both civil and criminal charges.
- Serious damage to one’s financial welfare and livelihood. As provided above, a stalking injunction is part of the public record and cannot be expunged, meaning, that if anyone conducts a background search on the respondent, he or she could easily find out about the respondent’s stalking injunction. This could result in the respondent facing difficulty in securing housing, finding gainful employment, and take out a bank loan.
- All ammunition and firearms must be turned into law enforcement once the injunction becomes effective. The respondent may also be permanently prohibited from purchasing firearms in the future.
Contact Musca Law Today to Learn More About Your Legal Rights and Options
Facing the prospects of a stalking injunction can be frightening, as an active injunction can negatively affect your life in several serious ways. When you work a seasoned Florida criminal defense attorney at Musca Law, he or she will help you to challenge a stalking injunction to the fullest extent of the law. Our firm’s attorneys are among The National Trial Lawyers – Top 100 Trial Lawyers, included in the 2012 Florida Super Lawyers® for criminal defense, and boast 10.0 Superb Avvo ratings. Our attorneys are skilled, experienced, tenacious, and relentless when it comes to defending our clients. To learn more about how Musca Law can make a difference for you, call (888) 484-5057 today.