Protective Injunction for Stalking Defense Attorneys in Miami, Florida (FL)
Defending Against Miami Stalking Injunctions
What is an injunction?
In Florida, an injunction, also known as a “restraining order,” “protective order,” or “protective injunction,” is an equitable and legal remedy that is issued in the form of a court order against another individual, known as the respondent. The petitioner is the individual who files the petition for an injunction. If the respondent violates the terms of an injunction, he or she can face both civil and criminal repercussions, including imprisonment, monetary fines, social stigma, and more. The respondent can also be held in contempt of court.
There are five types of injunctions in Florida, which include:
- Domestic violence
- Repeat violence
- Dating violence
- Sexual violence
How are each of the above types of injunctions similar to one another?
- The petitioner is the person who seeks the injunction and the respondent is the person who is the subject of the petition.
- The petition must be signed in front of the court clerk or notarized, as it is a sworn document.
- The judge may issue a temporary injunction prior to when the hearing is held.
- The temporary injunction, if approved, is in effect until the hearing takes place.
- The petition is typically served on the respondent by the local sheriff.
- A hearing can take place even if the judge denies the temporary injunction.
- By law, the respondent is entitled to notice of the hearing.
- Both the petitioner and respondent can call witnesses to testify on their behalf at the hearing.
- Both the petitioner and respondent can submit evidence to the court to support their respective positions.
- Once the hearing is held, the judge may decide to issue a permanent injunction, which remains effective until the court changes it or it expires.
- If the respondent is in violation of the permanent injunction, he or she can face criminal and civil repercussions, including jail time, monetary fines, and being held in contempt of court.
What makes a stalking injunction unique?
- There must be at least two occurrences of stalking or cyberstalking.
- The victim, or the legal guardian or parent of a minor living at home (a child less than eighteen years old), may file a petition.
- The injunction protects minors and adults from further incidences of stalking or cyberstalking.
- If a temporary injunction is issued against the respondent, he or she may be required to surrender all ammunition and guns to law enforcement.
- If a permanent injunction is issued against the respondent, he or she must surrender all ammunition and guns to law enforcement.
- A judge may order the respondent to obtain mental health treatment at his or her own expense.
What is stalking?
Pursuant to 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.”
In Florida, the law provides that to “[h]arass” 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?
As noted above, a victim of stalking must prove that there were at least two incidents of stalking before a court will issue an injunction against the respondent. A Florida court will rule that a petitioner is a stalking victim when the respondent has:
· A history of violence
· Caused destruction to the petitioner’s personal property;
· Another restraining order that was issued against him or her in another state;
· Made threats to use or used weapons to cause harm to the petitioner;
· Made threats to harm the petitioner and/or his or her family or friends; and/or
· Actually committed the offense of stalking.
In order to receive the protection of a stalking injunction, the petitioner must submit evidence to the court of the above. If the petitioner is able to satisfy his or her burden of proving that he or she is a victim of stalking, the court may issue a temporary injunction against the respondent.
Who can file a stalking restraining order?
Under Florida law, the victim of stalking or the legal guardian or parent of a child under the age of eighteen may file a stalking 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, modified, vacated, removed, changed, or dissolved through the court. In order to obtain relief from a stalking injunction, a party must establish that the facts supporting the original injunction are no longer in effect such that keeping the injunction in place serves no valid purpose.
How does a victim of stalking obtain a stalking injunction?
In Florida, a petitioner must file with the court a Petition for Injunction for Protection Against Stalking. Soon thereafter, a judge examines the petition and determines whether or not to issue a temporary injunction against the respondent. At this stage, the judge does not question the veracity of the facts alleged in the petition.
Once a judge renders a decision as to whether to grant or deny the temporary injunction, the next step is what is known as a return hearing, which occurs fifteen days or less from the date when the petition was filed. During this hearing, the judge determines whether to issue a stalking injunction against the respondent in light of the facts and circumstances of the case. Keep in mind that the judge, in his or her discretion, may decide to deny both the temporary injunction and the return hearing.
What occurs at a stalking injunction hearing?
Soon after the petitioner files the petition, the judge may opt to schedule a hearing, even if he or she denied the temporary injunction. During this hearing, the petitioner has the burden of proving that a stalking injunction is warranted against the respondent. The petitioner can support his or her case by submitting to the court evidence of stalking through witnesses, documentation, and law enforcement. The respondent also has the option of bringing forth said evidence to challenge the petitioner’s allegations. Note that both parties can cross-examine each other as well as all witnesses who have been called to testify. Once all of the evidence has been presented to the court, the judge then renders a determination as to whether to grant or deny the stalking injunction.
What occurs if the respondent violates the terms of a stalking injunction?
If the respondent violates the terms of a stalking injunction, he or she could face misdemeanor or felony charges, depending upon the facts and circumstances of the case. This means that the respondent could be sent to prison and ordered to pay hefty monetary fines to the court. The respondent may also be held in contempt of court, which is a civil penalty.
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 pursues this course of action prior to the expiration of the injunction. In determining whether to extend the term of a stalking injunction, the judge does not need to have evidence that the stalking has continued past the date of the issuance of the stalking injunction. Specifically, the judge may review the facts that supported the original injunction and any actions that the respondent has taken to cause the petitioner to have fear that he or she will once again become a stalking victim after the injunction is set to expire.
Frequently asked questions about stalking injunctions in Miami- Dade County, Florida
What happens when a person files a stalking injunction?
When a petitioner files a petition, the presiding judge decides whether to issue the temporary injunction and schedule a hearing, deny the temporary injunction and schedule a hearing, or deny the temporary injunction without holding a hearing.
If a judge approves the temporary injunction, the respondent cannot have any contact with the petitioner until the hearing is held, which is fifteen days following when the petition was filed. During the hearing, each party may present his or her case. If the allegations in the petition are false, exaggerated, or misrepresented, the respondent’s attorney will seek to have the petition dismissed and the stalking injunction denied.
What happens if the respondent does not challenge the stalking petition?
A failure to challenge the petition means that the respondent will not be present to refute the allegations raised against him or her. This may result in the issuance of a stalking injunction against the respondent, which carries with it serious criminal and civil penalties. This is why it is vital that the respondent attend the hearing to challenge the allegations and work with a skilled Florida criminal defense attorney to develop the strongest defense strategy possible.
What happens if the court issues a permanent stalking injunction after the hearing?
If the judge orders a stalking injunction, then the respondent can have no further contact with the petitioner. At this time, the respondent will be required to surrender to law enforcement all ammunition and guns. The respondent will also be prohibited from being in locations where the petitioner frequents, such as his or her home, school, or place of worship. The court can also order the respondent to seek mental health treatment at his or her own expense.
How long does a stalking injunction remain in effect?
A stalking injunction is effective until the court changes it or when it is set to expire, if applicable. If the petitioner chooses to extend the term of the injunction, he or she must request an extension with the court prior to whether 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 contact the petitioner at any time, whether indirectly, directly, or through a third party such as a friend or family member.
How is a stalking injunction violated?
If the respondent willfully, repeatedly, and maliciously follows, harasses, or cyberstalk the petitioner, or threatens to do so, he or she will be in violation of the stalking injunction.
What will happen if a person violates a stalking injunction?
If a respondent is in violation of a stalking injunction, he or she may be subject to criminal and civil penalties. Specifically, the respondent could be sent to prison, be forced to pay hefty monetary fines, and be held in contempt of court.
Are stalking injunctions public records?
Yes, a stalking injunction is part of the public record. This means that anyone can view the respondent’s criminal background and learn that a stalking injunction has been issued against him or her. This can negatively affect the respondent’s ability to obtain gainful employment, housing, or a monetary loan.
Can a person appeal a stalking injunction?
Yes. If a stalking injunction is approved by the court, the respondent may file an appeal of the case.
Will an expired stalking injunction still affect me?
Even if a stalking injunction has expired, it is still public record and is not eligible for expungement. This means that anyone can access the respondent’s criminal background and learn that he or she has had an injunction issued against her. This can negatively affect the respondent’s life on a permanent basis, as it can prevent him or her from finding suitable housing, gainful employment, and obtain a loan. This is why it is critical that the respondent appeal the case in order to avoid facing these serious legal repercussions. 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 Florida law does not require the respondent to hire a criminal law attorney, it is still important that he or she hire an attorney who knows the laws as well as the criminal court system. An attorney is in the best position to help the respondent fight for his or her legal rights as well as challenge the petitioner’s case with the strongest defense strategy possible, especially if the allegations are untrue, exaggerated, misleading, or misrepresented.
What are the repercussions of a stalking injunction?
There are numerous legal repercussions associated with a stalking injunction, which can permanently affect the life of the respondent. That is why it is essential that the respondent work with a seasoned Florida injunction defense lawyer who has the skills, knowledge, and experience necessary to develop the strongest defense strategy on his or her behalf.
Some of the negative consequences associated with a stalking injunction are:
- The respondent can no longer have any contact with the petitioner. Even innocent contact such as running into the petitioner at a local grocery store can violate the terms of a stalking injunction, which could amount to civil and criminal penalties.
- Serious damage to one’s livelihood and financial welfare. As noted above, a stalking injunction remains a permanent part of the public record and cannot be expunged. This means that a lender or prospective employer can easily find out that an injunction has been issued against the respondent. This could result in difficulty finding suitable housing and gainful employment, and obtaining a bank loan.
- Once a stalking injunction has been set into place, all of the respondent’s guns and ammunition must be turned into law enforcement. The respondent may also be permanently prohibited from purchasing ammunition and guns 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 Miami 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.