Stalking and Aggravated Stalking are serious criminal offenses in Florida and may
subject an accused to harsh misdemeanor or felony penalties. If you have been accused
of stalking or aggravated stalking, contact a Jacksonville, FL Criminal Defense Attorney
to discuss the charges. Due to political pressures and heightened media attention
applied to these types of cases, stalking and aggravated stalking are vigorously
prosecuted by the Office of the State Attorney. A Jacksonville, FL Criminal Lawyer
is an essential asset for attacking the charge or minimizing the possible penalties
you may face.
How is “Stalking” Defined Under Florida Law?
Under Florida law, “stalking” is defined as the willful, malicious, and repeated
following or harassing of another person. Stalking also occurs when a person engages
in “cyberstalking,” as defined by Florida statutes. To “harass” means that the accused
engaged in a continuing series of actions (directed at a specific person), which
caused the other person substantial emotional distress and served no legitimate purpose.
To “cyberstalk” means “to engage in a course of conduct to communicate, or cause
to be communicated, words, images, or languages (by or through the use of electronic
mail or electronic communications), directed at a specific person, causing substantial
emotional distress to that person and serving no legitimate purpose.”
Misdemeanor Stalking vs. Aggravated Stalking (Felony Stalking)
Depending on the facts of a case and the prosecutor’s exercise of his or her discretion,
the offense of “stalking” may be classified either as a misdemeanor or felony (aggravated
stalking). A person who willfully, maliciously, and repeatedly follows, harasses,
or “cyberstalks” another person commits misdemeanor stalking. When charged as a misdemeanor,
stalking is punishable by up to 365 days in jail.
In certain cases, stalking may also be classified as a third-degree felony. Felony
or Aggravated Stalking may occur where the accused:
willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another
person and makes a credible threat with the intent to place that person in reasonable
fear of death or bodily injury of the person, or the person's child, sibling, spouse,
parent, or dependent; or
commits the offense of stalking after an injunction for protection against repeat
violence, sexual violence, or dating violence, or an injunction for protection against
domestic violence has been issued,or after any other court-imposed prohibition of
conduct toward the subject person or that person's property; or
willfully, maliciously, and repeatedly follows, harasses, or cyberstalks a minor
under 16 years of age;or
commits the offense stalking after having been sentenced for sexual battery, or
commits the offense of stalking after having been sentenced for lewd or lascivious
offenses committed upon or in the presence of persons less than 16 years of age;
commits the offense of stalking after having been sentenced for certain computer
pornography offenses when the accused was prohibited from contacting the victim of
that earlier offense.
Is the Florida Statute on Stalking Constitutional?
By all indications, yes. Florida’s stalking statute has withstood multiple constitutional
challenges since it was enacted. These challenges have centered on First Amendment
protections for freedom of speech, as well as due process concerns about how the
statute is written.
With regard to freedom of speech, it’s important to first note that the First Amendment
applies only to “protected” forms of speech. On this point, Florida and Federal courts
have held that “harassment,” “following,” and the causing of emotional distress are
properly classified as criminal acts, and thus not entitled to constitutional protections.
Thus, “stalking,” as defined under the statute, may be criminalized and punished,
even if it has expressive elements to it.
In Bouters v. State, 659 So. 2d 235, 237 (Fla. 1995), a defendant was convicted of
stalking after evidence showed that he harassed the victim (an ex-girlfriend) by
repeatedly calling her on the telephone and threatening to harm her. He further
violated a domestic violence injunction by entering her home uninvited and left only
when the sheriff's office was called. The defendant claimed that aspects of his conduct
were protected by the First Amendment. On these facts, the Florida Supreme Court
held that “none of [the defendant’s] acts qualify for First Amendment protection.
His conduct was criminal and to the extent speech and other expressive activity was
involved, "when protected speech translates into criminal conduct, even the Free
Speech Clause balks."
On the other hand, courts have upheld First Amendment defenses to stalking charges
where the conduct forming the basis of the charge served a legitimate purpose and
was deemed constitutionally “protected” speech. In Curry v. State, 811 So. 2d 736
(Fla. 4th DCA 2002), an accused made at least 40 public records requests concerning
the alleged victim and also filed about 40 complaints against her with various government
agencies. On these facts, the Fourth District Court of Appeal held that the accused’s
conduct was constitutionally protected speech because the accused has a recognized
First Amendment right to convince governmental agencies to enforce the laws within
their jurisdiction. Regardless of the accused’s subjective motivations, freedom of
speech (and other factors) precluded a conviction for stalking.
Florida’s stalking and cyberstalking laws have also been challenged on grounds that
the law is unconstitutionally vague. Appellate courts throughout the state have
uniformly rejected this argument. SeePallas v. State, 636 So. 2d 1358 (Fla. 3d
DCA 1994); Bouters v. State, 659 So. 2d 235 (Fla. 1995).
Are There Defenses to a Charge of Stalking or Cyberstalking in Florida?
There are many defenses to a charge of stalking or cyberstalking in Jacksonville,
FL. Was the conduct forming the basis of the charge invited, encouraged, or reciprocated
by the alleged victim? Is the accused’s conduct sufficiently “continuous” or consistent
to constitute harassment? (Butler v. State, 715 So. 2d 339 (Fla. 4th DCA 1998));
how close in time did the alleged communication or following occur? Were the communications
willful, or communicated by third persons or entities? Did the accused mean to direct
the alleged harassment to the alleged victim, or did the victim learn about the accused’s
conduct from other sources not intended by the accused? Was there emotional distress?
A legitimate purpose to the accused’s actions?
These are just a few of the potential defenses that may be raised in stalking or
“cyberstalking” case. There are many others, and a criminal defense lawyer is essential
to properly raise these defenses. If you have been accused of stalking or cyberstalking
in Jacksonville, FL, contact Hussein & Webber, PL to discuss your legal options.
All consultations with our Jacksonville criminal defense lawyer are free and confidential.