Stalking Injunction Defense Lawyers in Tampa, Florida
Florida law authorizes judges to issue various injunctions for the protection of alleged victims. In Tampa, injunctions are also known as protective orders or restraining orders. Injunctions are based on facts that, if true, could provide the basis for a criminal conviction. Notwithstanding, injunctions are an order of the court designed to protect the victim from physical, emotional, or mental harm. The order is civil in nature. However, the violation of an injunction to prevent stalking or any other injunction to prevent abuse is punishable by lengthy prison terms. It could result in a lifetime restriction on a person’s liberty. Because of the potentially far-reaching ramifications of receiving a stalking injunction, anyone facing a Tampa stalking injunction must seek legal advice from a highly-experienced and well-qualified Tampa Stalking Injunction Defense Attorney who also focuses his or her practice on criminal defense.
Experience matters. Our highly-skilled and well-trained criminal defense trial attorneys from Musca Law represent criminal defendants across the state of Florida who are facing a variety of criminal charges ranging in the relatively minor to first-degree and capital felonies. Our firm also represents people facing collateral criminal matters like injunctions to prevent stalking, cyberstalking, or other forms of abuse. Our Tampa Criminal Defense and Stalking Defense Injunction attorneys know how to fight to protect your liberty, freedom, and your way of life for you and your family. Our lawyers have vast resources, experience, and are dedicated to protecting you from the ramifications of a protective injunction. Call Musca Law today at (888) 484-5057, day or night, seven days a week, to speak with an expert dedicated to defending your rights if you are facing in injunction or another crime.
Types of Protective Injunctions in Tampa, Florida
Florida’s legislature enacted several statutes designed to protect alleged victims of abuse from a person who poses a danger. The statutes grant a judge the authority to order an injunction addressing the particular needs of the petitioner, who is the person applying for the protection of an injunction. The petitioner must select the appropriate petition when filing the request in court. The petitioner must choose one of either:
- Stalking and Cyberstalking Injunction;
- Repeat Violence Injunction;
- Sexual Violence Injunction;
- Domestic Violence Injunction; or
- Dating Violence Injunction.
The circuit court has forms for petitioners to complete and submit for judicial review. The petitioner signs the petition “under the pains and penalties of perjury,” meaning that the petitioner swears under the threat he or she could be charged with a crime for filing a false petition that the allegations are true. The petition must identify the individual the petitioner wishes to restrain. The person whose behavior is the subject of the petition is called the respondent.
The petitioner can seek a protective order in Tampa for the petitioner personally and on behalf of a minor child if the petitioner has a reasonable fear of being the victim of imminent harm. The petitioner could allege that a parent requires the protection of an injunctive order as well, depending on the type the relationship between the parties.
A judge will review the petition after it is filed in accordance with the court’s procedures. The judge will analyze the petition, the facts outlined in the petition, along with additional evidence (such as photographs, copies of text messages, or social media posts), if any, to decide whether the court should issue a preliminary injunction. Sometimes preliminary injunctions are referred to as temporary restraining orders.
If a judge in Tampa allows a preliminary injunction to issue based on the allegations contained in the petition, then the sheriff must arrange to serve the respondent with the notice of the temporary restraining order along with the date the court set for the hearing on the issue of whether the injunction should be permanent. The final injunction hearing must be conducted within fifteen days (15) from the date the judge issued the preliminary injunction. Every person served with notice of a temporary restraining order in Tampa, regardless of the allegations, must contact a Tampa Criminal Defense and Stalking Injunction Attorney to receive an honest assessment of the case from an attorney with a track record of successfully defending clients’ rights.
Stalking and Cyberstalking in Hillsborough County Florida
A judge could authorize an injunction against a person accused of stalking or cyberstalking without contemporaneous criminal charges pending against the respondent. The terms stalking and cyberstalking used in the context of an injunction hearing derive their meanings from Florida criminal laws. Therefore, a thorough and complete understanding of these terms is necessary to establish a viable defense to claims made in a petition for an injunction against stalking or cyberstalking.
Florida Statutes §784.048(2) defines stalking and cyberstalking, and sets forth the possible penalty for the accused faces if convicted of the crime. Stalking, under §784.048(2), is defined as any person who “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.” The crime is a first-degree misdemeanor. The person convicted of stalking in Tampa faces up to one year in jail and a fine not to exceed $1,000.00.
As noted above, cases requesting injunctive relief are civil rather than criminal cases. As with every case brought in court, the moving party has the burden to prove the truth of the allegations which support the parties’ respective claims and is responsible for proving each element, or component, of the charge. Thus, the petitioner in a case seeking injunctive relief has to prove the allegations contained in the petition just as the state’s attorney must prove that a person charged with stalking or cyberstalking (as with every crime) is guilty. However, the critical distinction between the two cases is the burden of proof.
In a civil case, like stalking or cyberstalking injunctions, the burden of proof is stated as a preponderance of the evidence. The standard is best understood as “more likely than not.” Conversely, the burden on the state to convict a person of a crime is significantly more onerous. The state must prove every element, or component, of the crime beyond a reasonable doubt. If the government does not satisfy that lofty standard, then the accused must be acquitted, or the charges dismissed. Similarly, if the petitioner fails to prove stalking or prove the identity of the person allegedly committing the act, then the judge must deny the petition.
The elements of stalking, including cyberstalking, are few, but each element requires in-depth analysis to understand fully when developing a winning defense strategy. Section 784.048(2) of the Florida statutes states that the person charged with stalking must have committed the act “willfully” and “maliciously.”
The terms “willfully” and “maliciously” define the mental state of the accused, also known as mens rea. Willful essentially means purposeful, or of “one’s own volition.” In other words, the person must have intended to commit the act, rather than the person committed the act negligently or accidentally.
Maliciously means that the person who committed the act did so with the specific intent to hurt or harm the alleged victim, and the person committed the act without excuse or justification. A qualified Tampa Criminal Defense and Stalking Defense attorney could explain these concepts in greater detail and work closely with you and your family to develop a defense strategy that could be applied successfully to the defense of the allegations made against you.
The prosecution must also prove that the accused “followed, harassed, or cyberstalked” the victim to be guilty of the crime. Harassment is a “course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” The phrase “course of conduct” also means something specific. “Course of conduct,” under Florida law, means “a pattern of conduct composed of a serious of acts over a period, however short, which evidence a continuity of purpose.” Finally, the prosecution and the person petitioning for a protective injunction for stalking or cyberstalking must prove that the target of the stalking or cyberstalking suffered substantial emotional distress.
The term “cyberstalking” also has a specific definition under Florida law. Cyberstalking is “a course of conduct to communicate, or to cause to be communicated (as if by a third party), words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person.” Cyberstalking also means accessing, or “attempt to access, the online accounts of 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.” Similar to stalking, cyberstalking is a first-degree misdemeanor, the maximum penalty for which is a $1,000.00 fine or a jail term not to exceed one year.
Aggravated Stalking in Tampa, Florida
Prosecutors can seek felony charges for aggravated stalking. Aggravated stalking is a felony in the third-degree. The maximum penalty for aggravated stalking in Tampa, Florida, is a five-year state prison sentence and a fine of up to $5,000.00. The difference between misdemeanor stalking and felony stalking is the existence of a “credible threat” that the safety of the alleged victim is in jeopardy.
Florida Statutes §784.048(3) defines a credible threat as:
A “verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat had the intent actually to carry out the threat.”
Felony charges carry significant penalties and have future adverse consequences for the accused. Therefore, it is imperative for a person facing a felony charge in Tampa to contact a Tampa Criminal Defense Attorney and Stalking Injunction Defense Attorney from Musca Law to defend against the allegations. Our trial lawyers understand how the prosecution builds a case, and therefore, also understand the weaknesses of the state’s case and can exploit them. Only an attorney with extensive experience winning acquittals for clients can persuade a jury that the prosecution did not meet its heavy burden of proving that the accused made a “credible threat” in a Tampa aggravated stalking case.
Stalking Injunctions in Tampa, Florida
Criminal charges of stalking, cyberstalking, and aggravated stalking often give rise to a petition for an injunction to prevent stalking. Florida statutes §784.0485 allows the victim of stalking, the parent or guardian of a minor child who is the victim of stalking and still residing in the parents’ or guardians’ homes, has legal standing to file a sworn petition for a protective injunction prohibiting stalking.
Two decisions from Florida Courts of Appeals help frame the burden a petitioner has when seeking an injunction against stalking. In David v. Schack, 192 So.3d 625 (Fla. 4th DCA 2016), the Fourth Circuit Court of Appeals ruled that a petitioner is entitled to an injunction against stalking if the petitioner proves two separate incidents of stalking. Furthermore, in Touhey v. Seda, 133 So.3d 1203 (Fla. 2d DCA 2014), the panel of appellate judges held that every instance of stalking alleged by the petitioner must be supported by substantial and competent evidence to justify an injunction against stalking. Therefore, each incident cited by the petitioner alleged to obtain an injunction against stalking cannot be naked assertions of troubling events.
Florida’s Supreme Court approved Family Law Form 12.980(t) for use in the circuit courts. Form 12.980(t) must be completed by the petitioner in full and submitted to the court. The form instructs the petitioner to specify the reasons why an injunction is necessary, including a factual summary of the allegations.
Form 12.980(t) provides petitioners with options to select which best describe the case from the petitioner’s point of view. The petitioner could select allegations such as:
- The respondent is subject to an order of protection in another state;
- The respondent has a history of violence;
- The respondent destroyed the property of the petitioner;
- The respondent threatened the use of force with a firearm or knife;
- The respondent has a previous conviction for stalking or aggravated stalking;
- The respondent threatened the petitioner’s family members; or
- The respondent previously stalked the petitioner.
Once completed, a judge must review the petition for compliance with the law and decide if the court should grant a temporary injunction to protect the victim before a final hearing on the merits of the petition for an injunction could be conducted. Judges often issue preliminary injunctions to protect the victim in the short-term before the respondent could be heard in opposition.
The court must hold the final hearing within fifteen (15) days from the date the petitioner filed the request if the court approves a temporary injunction against stalking. The sheriff’s office of the county in which the respondent resides must serve the respondent. Without service of process, the respondent is without notice of the claims against him or her, and a judge cannot authorize a permanent injunction against stalking. Notwithstanding, a judge could order a permanent injunction if the judge finds that the respondent purposely avoided service.
Defending Against a Tampa Stalking Injunction
The respondent has the opportunity to argue to the judge why he or she should not be subject to a permanent injunction. The respondent also has the right to representation by an attorney of his or her choosing. The respondent can admit testimony as well as documentary evidence, photographic evidence, or other evidence to defend the allegations. Many of the defenses useful in defense of criminal stalking charges are applicable in defending against stalking allegations at a hearing for an injunction as well.
Having an attorney fight for your rights in a Tampa stalking injunction petition will protect your liberty interests. The respondent has a right against self-incrimination at all times. Therefore the wise choice is to acquire counsel who will defend the case without placing you in jeopardy of admitting to criminal conduct.
Judge’s Rulings Can Significantly Affect the Respondent’s Life
The respondent must comply with every term the court sets forth if the judge grants the petitioner an injunction against stalking in Tampa, Florida. The judge enjoys the discretion to order the respondent to stay away from and have no contact with, either directly or indirectly, the petitioner and the petitioner’s family. The judge can order the respondent to attend mental health counseling. The judge must order the respondent to surrender his or her firearms and ammunition.
The judge’s order is permanent unless otherwise specified. The respondent or petitioner can ask the court to modify the conditions of the order or terminate the order in its entirety.
Courts do not take motions to modify or terminate injunctions lightly. A qualified Tampa stalking injunction defense attorney will file the correct pleadings to ensure that the respondent gets a fair hearing and asserts the proper reasons for requesting modification or termination of the injunction.
Call Musca Law’s Tampa Stalking Injunction Defense Attorneys Today
Do not try to represent yourself if you are facing a stalking injunction in Tampa. The stakes are way too high to take that chance. Rely on the experienced, dedicated, and accomplished Tampa Criminal Defense Lawyers and Stalking Injunction Defense Attorneys from Musca Law to protect your rights. Call our office today at (888) 484-5057 anytime, day or night, to discuss your case with us.