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THE LEWIS LAW FIRM, P.A.

Former Prosecutor Ken Lewis

Central Florida Criminal Defense

 VICTIMS RIGHTS IN FLORIDA

Are you the victim of a crime in Orlando, Tampa or any surrounding area in Florida?

Have you been shot, raped, robbed or been the victim of another violent crime?  

If so you need The Lewis Law Firm to protect your victim rights.

 

Have you been the victim of fraud or theft? 

If so you need The Lewis Law Firm to protect your victim rights and help you 

receive the restitution you are entitled to.  

Is a neighbor, spouse, stranger or significant other harassing you,

threatening you, stalking you, or harming you? 

If so the Lewis Law Firm can assist you with a petition or hearing to get that

person to stop by filing an injunction or a restraining order.    

Have you been wrongfully accused of harassment, acts of violence,

sexual misconduct, threats or stalking? 

If so, the Lewis Law Firm can fight on your behalf to prevent injunctions or

restraining orders from being granted or to dismiss existing injunctions. 

Attorney Ken Lewis has handled numerous injunctions in Orange, County, Seminole County, Volusia County and surrounding counties and is available for a free consultation. Attorney Ken Lewis was a homicide prosecutor for many years and worked with many victims and victims families seeing that justice is served. 

TYPES OF INJUNCTIONS IN FLORIDA

1.  DOMESTIC VIOLENCE § 741.30, Form 12.980(a)

What is the relation to me of the person I am seeking the injunction against?

If the person (respondent) is the spouse or former spouse of the petitioner or is any other person related by blood or marriage to the petitioner or is any other person who is or was residing within a single dwelling unit with the petitioner, as if a family, or is a person with whom the petitioner has a child in common, regardless of whether the petitioner and respondent are or were married or residing together, as if a family then the act is an act of DOMESTIC VIOLENCE and a petition should be filed under Florida Statute 741.30 by using Form 12.980(a). Petition for Injunction for Protection Against Domestic Violence.

The law requires more than general relationship problems and uncivil behavior to support the issuance of an injunction for protection against domestic violence; rather, the law requires that the party seeking the injunction must present sufficient evidence to establish the objective reasonableness of his or her fear that the danger of violence is imminent.

Randolph v. Rich, 58 So.3d 290, (1st DCA 2011).

If the parties are not related by blood or marriage-present or past, they must have resided together as though they were a family unit at some time. Because Ms. Wright and Mr. Slovenski were unrelated and maintained separate residences throughout their relationship, Ms. Wright did not establish that she was a family or household member. Thus, Ms. Wright lacked standing to bring the domestic violence petition See Partlowe v. Gomez, 801 So.2d 968, 969 (Fla. 2d DCA 2001).

2. REPEAT VIOLENCE, SEXUAL VIOLENCE OR DATING VIOLENCE § 784.046

“Violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.

   

     A)  REPEAT VIOLENCE § 784.046(1)(a), Form 12.980(f)

Requires 2 incidents one in the last 6 months.

“Repeat violence” is defined as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner's immediate family member.”

Many judges erroneously grant restraining orders against repeat without the requisite showing that violence is imminent.

In the following cases the appellate court all reversed injunctions wrongfully granted: 

Droke v. Andino, 145 So. 3d 221 (Fla. 5th DCA. 2014)

In the instant case, the evidence established that Andino threatened Droke on two separate occasions, but violence appeared imminent on only one occasion. Thus, only one assault was shown. 

Russell v. Doughty, 28 So.3d 169, 170 (Fla. 1st DCA 2010) Evidence of second violent act was respondent yelling profanities and threats, without an indication that respondent threatened to do violence or that he took some action that could have created a well-founded fear that violence was imminent)

Sorin v. Cole, 929 So.2d 1092, 1094 (Fla. 4th DCA 2006) (“Mere shouting and obscene hand gestures, without an overt act that places the victim in fear, does not constitute the type of violence required for an injunction.  Gagnard v. Sticht, 886 So.2d 321, 322 (Fla. 4th DCA 2004)  threat to kill petitioner and “ ‘F’ him up,” without “overt acts indicating an ability to carry out the threats or justifying a belief in [petitioner] that violence was imminent” did not constitute an act of violence);

Perez v. Siegel, 857 So.2d 353, 355 (Fla. 3d DCA 2003) although respondent threatened to kill petitioner and her family during a face to face confrontation, petitioner never alleged or proved that respondent had the apparent ability to do so, or that respondent committed any overt act creating well-founded fear that violence was imminent).

     B) SEXUAL VIOLENCE § 784.046(2)(c) form 12.980(q)

One incident and can be filed on behalf of a minor if the minor is a resident of your home. 

“Sexual violence” means any one incident of:

1. Sexual battery, as defined in chapter 794;

2. A lewd or lascivious act, as defined in chapter 800, committed upon or in the presence of a person younger than 16 years of age;

3. Luring or enticing a child, as described in chapter 787;

4. Sexual performance by a child, as described in chapter 827; or

5. Any other forcible felony wherein a sexual act is committed or attempted,

regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the state attorney.

Morrell v. Chadick, 965 So.2d 1277, 1280 (Fla. 2d DCA 2007) (holding that appellant presented no objective basis to support her subjective belief that she was the victim of sexual violence (citing Oettmeier v. Oettmeier, 960 So.2d 902, 904 (Fla. 2d DCA 2007)))


      C)  DATING VIOLENCE § 784.046(2)(d), form 12.980(n) Must have been dating within the last 6 months. Must be a past victim and believe future violence is imminent. 

Any adult in a relationship may seek an injunction under 2 sets of circumstances: (1) if that person is a victim of dating violence and has reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence or (2) if that person has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence. In either case, the person must have reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence in the future. Acevedo v. Williams, 985 So.2d 669, 669–70 (Fla. 1st DCA 2008) (noting that “in cases of dating violence,” section 784.046(2)(b) “permits any person who is a victim of such violence ... to file a petition for such an injunction whenever there is reasonable cause to believe the petitioner ... is in imminent danger of suffering dating violence”). It is not sufficient to have been the victim of one incident of dating violence in the past.

§ 784.046(2)(d) “Dating violence” means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on the consideration of the following factors:

1. A dating relationship must have existed within the past 6 months;

2. The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties; and

3. The frequency and type of interaction between the persons involved in the relationship must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.

The term does not include violence in a casual acquaintanceship or violence between individuals who only have engaged in ordinary fraternization in a business or social context.

her act of dating violence or (2) if that person has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence.

Alderman v. Thomas, 141 So. 3d 668, 669 (Fla. Dist. Ct. App. 2014)

Because there was no competent, substantial evidence that Thomas reasonably believed she was in imminent danger of becoming the victim of another act of dating violence, the trial court abused its discretion in entering the final judgment of injunction. See Arnold v. Santana, 122 So.3d 512, 513 (Fla. 1st DCA 2013) (holding that a trial court has broad discretion in entering an injunction for protection against violence but that it must be supported by competent, substantial evidence). We also note that Thomas's petition was insufficient because she failed to allege facts demonstrating that she reasonably believed she was in imminent danger of becoming the victim of another act of dating violence.

3. STALKING-Florida Statute § 784.0485 Must be at least two instances of stalking
STALKING 784.048
In order to be entitled to an injunction for stalking, the petitioner must allege and prove two separate instances of stalking. David v. Schack, App. 4 Dist., 192 So.3d 625 (2016).
 Roach v. Brower, App. 2 Dist., 180 So.3d 1142 (2015). Protection of Endangered Persons 
To be entitled to injunctive relief to prevent stalking by harassing, a petitioner has to establish that the individual, against whom she seeks relief, willfully, maliciously, and repeatedly engaged in a course of conduct toward her that caused her substantial emotional distress and served no legitimate purpose. Roach v. Brower, App. 2 Dist., 180 So.3d 1142 (2015).
When considering the sufficiency of the evidence to support an injunction for protection against stalking, courts apply a reasonable person standard, not a subjective standard, to determine whether an incident causes substantial emotional distress. Klemple v. Gagliano, App. 4 Dist., 197 So.3d 1283 (2016).

 

In order to be entitled to an injunction for stalking, the petitioner must allege and prove two separate instances of stalking. David v. Schack, App. 4 Dist., 192 So.3d 625 (2016); Roach v. Brower, App. 2 Dist., 180 So.3d 1142 (2015).

To be entitled to injunctive relief to prevent stalking by harassing, a petitioner has to establish that the individual, against whom she seeks relief, willfully, maliciously, and repeatedly engaged in a course of conduct toward her that caused her substantial emotional distress and served no legitimate purpose. Roach v. Brower, App. 2 Dist., 180 So.3d 1142 (2015).

When considering the sufficiency of the evidence to support an injunction for protection against stalking, courts apply a reasonable person standard, not a subjective standard, to determine whether an incident causes substantial emotional distress. Klemple v. Gagliano, App. 4 Dist., 197 So.3d 1283 (2016).


784.048. Stalking; definitions; penalties
(1) As used in this section, the term:
(a) "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.
(b) "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests.
(c) "Credible threat" means 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 to actually carry out the threat. The present incarceration of the person making the threat is not a bar to prosecution under this section.
(d) "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, causing substantial emotional distress to that person and serving no legitimate purpose.


ASSAULT
An "assault" is defined as "an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent." § 784.011(1), Fla. Stat. (2011).

BURDEN OF PROOF

To support an injunction against repeat violence, each incident of violence must be proven by competent, substantial evidence.  Austin v. Echemendia, 198 So.3d 1058 (Fla. 4th DCA 2016).

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