Major FL Court Affirms Stalking Conviction in SPLIT DECISION – 1 Judge Dissents

September 11, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 4th District Court of Appeal concluded that a defendant could permissibly be convicted of stalking, as his conduct lacked any legitimate purpose and would cause substantial emotional distress to a reasonable victim. However, one 4th DCA judge disagreed.

CASE: Johnstone v. State, 354 So.3d 1101 (Fla. 4th DCA 2022)

Charge(s): Stalking

Outcome: Conviction AFFIRMED, as a jury could have reasonably concluded that Johnstone’s conduct violated Florida’s stalking statute.

Stalking and Aggravated Stalking in Florida

Stalking and aggravated stalking are serious offenses in Florida that can carry significant legal and financial penalties. Stalking occurs when a person willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person. Florida Statutes Section 784.048(2) regulates the offense of stalking.

If someone has been accused of stalking by harassing the victim, the State must establish that the defendant engaged in a course of conduct directed at the victim that:

• Served no legitimate purpose
• Would cause substantial emotional distress to a reasonable person
• Did cause substantial emotional distress to the victim

If charged criminally, stalking is a first-degree misdemeanor – punishable by up to 1 year in jail and a $1,000 fine. Cyberstalking carries the same criminal penalties as stalking, and occurs when someone does either of the following:

• Engages in a course of conduct to communicate words, images, or language through electronic methods, either directly or indirectly, which is directed at or pertaining to a targeted person; or
• Accesses, or attempts to access, the online account or internet-connected home electronic system without the victim’s consent, and that causes substantial emotional distress to the victim 

Stalking is an enhanceable offense, meaning certain forms of stalking are felonies and carry heavier criminal penalties under Florida law. For example:

• Someone who makes a credible threat to the victim in the course of stalking commits a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine
• Someone who stalks a victim 16 years old or younger commits a third-degree felony, punishable by up to 5 years in prison and a $5,000 fine
• Someone who violates an existing injunction against stalking commits aggravated stalking, a third-degree felony punishable by up to 5 years in prison and a $5,000 fine

Note: An officer may make a warrantless arrest of anyone they suspect of stalking based on probable cause.

Under Florida law, stalking must be done both willfully and maliciously. “Willfully” is defined as knowingly, intentionally, and purposely. “Maliciously” is defined as wrongfully, intentionally, and without lawful justification or excuse. Seese v. State, 955 So. 2d 1145 (Fla. 4th DCA 2007) 

In addition to stalking, there is aggravated stalking. Aggravated stalking includes the elements of stalking, but with the added requirement of making a credible threat to the victim, or violating an injunction for protection against violence. Ford v. State, 387 So.3d 1283 (Fla. 1st DCA 2024). 

Aggravated stalking is a third-degree felony punishable by up to 5 years in prison and a $5,000 fine. Moreover, under Florida Statutes Section 784.048, a court may issue an order restraining the defendant in an aggravated stalking case from contacting the victim for up to 10 years.

In addition to a criminal charge, someone may be subject to a stalking INJUNCTION. In Florida, an injunction is defined as a court order that is meant to compel a person to engage in, or refrain from engaging in, a particular course of conduct. 

There are two broad types of stalking injunctions – temporary injunctions and permanent (final) injunctions. A temporary injunction (also known as an ex parte injunction) can be entered before the respondent (e.g. the party accused of stalking) gets a full hearing. The process proceeds in the following way:

• The petitioner files a verified petition alleging stalking
• The judge reviews the petition – generally, the respondent does not have to be present
• If it appears that stalking exists, the court may issue a temporary injunction pending a full hearing
• Temporary injunctions ordinarily last no more than 15 days
• A full hearing must be scheduled no later than the date of expiration of the temporary injunction
• However, the hearing on the final injunction may be continued (e.g. delayed) for GOOD CAUSE, such as inability to obtain service on the respondent (and a temporary injunction may be extended accordingly)

Important: Even if the temporary injunction petition is denied, this does not mean the process is over. A petition will still be set for a full hearing (Florida Statutes Section 784.0485(5)) even if a judge does not grant a temporary injunction. Johnstone v. State, 298 So. 3d 660 (Fla. 4th DCA 2020)

A FINAL (or permanent injunction) must only issue after the respondent is given notice and an evidentiary hearing occurs. Both parties have the opportunity to:

• Testify
• Present witnesses and evidence
• Contest whether the statutory requirements for stalking have been established

If a court finds by the preponderance (majority) of the evidence that stalking has occurred, it may enter a final judgment of injunction for protection against stalking. This is known as a permanent injunction. 

But despite its name, a permanent injunction may be modified or tossed out. This can occur upon the motion of one or more parties, or an injunction can be tossed out by a Florida appellate court if there was an insufficient legal basis for its issuance.

In certain cases, someone may face civil penalties for stalking (an injunction) – and subsequently face criminal charges. If law enforcement and prosecutors find a sufficient probable cause basis to support a conclusion that someone has violated one or more state stalking laws, a person may face criminal stalking or aggravated stalking charges.

This is especially likely if an existing injunction is violated. Depending on the course of conduct a defendant engages in, a violation of an injunction against stalking, domestic violence, or repeat violence can be considered a misdemeanor or a FELONY. For more, click here.

In the early 2020s, Florida’s 4th District Court of Appeal did something quite rare. It decided two cases involving alleged stalking by a criminal defendant, two years apart, in different procedural contexts – and issued two written opinions. 

The first was referred to as Johnstone I (Johnstone v. State, 298 So.3d 660 (Fla. 4th DCA 2020)). There, the following facts were alleged:

• Johnstone was convicted of 10 counts of child pornography possession – he was placed on probation after serving less than a year in jail
• Over the course of 3 years, Johnstone allegedly developed an antagonistic relationship with his next-door neighbors, who said they did not want to associate with him (due to his convictions)
• Johnson allegedly placed debris on their property, installed barbed wire, painted various obscenities and put insulting signs on the portion of the fence facing their property
• Johnstone was also accused of appearing outside in only underwear while the neighbors’ young granddaughter visited, and staring at the couple as they lounged in the pool
• Johnstone was advised by his probation officer to stop, but he did not
• Shortly before his arrest, Johnstone admitted to a police officer that the objective of his acts were to “mess with” the male neighbor
• Based on the above facts, the judge concluded Johnstone had committed stalking (by the greater weight of the evidence)
• The judge found Johnstone’s behavior was willful, malicious, and repeated (required for the stalking statute to be violated)
• Johnstone’s probation was revoked, and he was sentenced to prison in accordance with his CPC scoresheet

The first Johnstone case took place in the context of a VIOLATION OF PROBATION (VOP) hearing. Thus, the allegations were only required to be proven by the greater weight (majority) of the evidence. After Johnstone was found to have stalked the alleged victims, his probation was REVOKED, and he was sentenced to prison.

While incarcerated, the State chose to charge Johnstone with stalking (based on the allegations made in the VOP hearing). He was convicted, and appealed again to the 4th DCA – arguing that there was insufficient evidence to support the jury’s guilty finding.

The 4th DCA DISAGREED with Johnstone and AFFIRMED his stalking conviction. However, one 4th DCA judge (Judge Artau) dissented – just like he did in Johnstone I. 

Let’s take a look at Johnstone II – Johnstone v. State, 354 So.3d 1101 (Fla. 4th DCA 2022) – and see what it means for those in Florida charged with criminal stalking, aggravated stalking, and/or violating injunctions against stalking, repeat violence, and/or dating violence.

KEY CASE: Johnstone v. State, 354 So.3d 1101 (Fla. 4th DCA 2022)

In Johnstone v. State, 354 So.3d 1101 (Fla. 4th DCA 2022), the defendant (Johnstone) was found guilty of stalking at a criminal trial after he was found to have violated his probation by a greater weight of the evidence. The allegations at trial were the same as in the probation hearing.

At trial, Johnstone argued that his behavior did not rise to the level of criminal stalking. Rather, he argued that he was essentially “provoked” by his neighbors on various occasions – and that even if his conduct was unjustified, it was not stalking as a matter of law. 

The judge who acted as the fact-finder in the case (Judge Wallace) REJECTED Johnstone’s argument and found him guilty, prompting his appeal to the 4th DCA (for the second time).

On appeal, Johnstone claimed that the judge erred as a matter of law by finding him GUILTY of criminal stalking. However, the 4th DCA majority did not agree, writing:

“As we noted in Johnstone I, “[d]etermining whether an individual’s behavior is merely boorish or juvenile as opposed to illegal stalking subject to criminal penalty can require the drawing of fine lines.” Id. at 662. The “fine lines” here are drawn differently than in the violation of probation case. See, e.g., Morris v. State, 727 So. 2d 975, 977 (Fla. 5th DCA 1999) (“An acquittal in a criminal case does not preclude the judge from determining that a parole or probation violation has occurred based on the same conduct.”); Williams v. State, 573 So. 2d 124, 126-27 (Fla. 4th DCA 1991) (evidence was sufficient to warrant revocation of probation but insufficient to sustain the conviction). Because we conclude that a reversal in the instant case would not be inconsistent with the resolution of Johnstone I (we do not “feel bound” by that opinion), the condition precedent for Appellant’s request for en banc consideration of Johnstone I is not present. Moreover, this Court has previously, by order dated July 31, 2020, denied a motion for rehearing en banc of Johnstone I. En banc consideration of Johnstone I would be successive and contrary to the conditional nature of Appellant’s Issue II request. … Contrary to Appellant’s first argument, after a careful consideration of the evidence presented, we determine that the State presented competent and substantial evidence in the misdemeanor criminal stalking trial heard before Judge Wallace to prove Appellant’s guilt beyond a reasonable doubt for the charge of stalking in violation of section 748.048, Florida Statutes (2017).”

Put simply, the 4th DCA deferred to the judge, and held that the evidence to sustain his stalking conviction was “competent and substantial” enough to survive a motion for judgment of acquittal (MJOA) at trial.

However, Judge Artau authored a powerful dissent. Concluding that there was NO behavior that qualified as criminal stalking under the circumstances, Judge Artau wrote:

“The State failed to present any competent and substantial evidence to establish that two or more of the incidents directed at either neighbor would have caused substantial emotional distress to a reasonable person under the objective standard which we are required to apply. Although one of the neighbors testified that she was “horrified” when she saw the defendant stare at her from the corner of his property while holding a machete as she was turning her vehicle onto the access road, the absence of any overt threatening action with the machete—which has a legitimate use to clear brush and perform other landscaping tasks—should not cause a reasonable person to suffer substantial emotional distress.”

“While the neighbors may have been irritated, annoyed, and aggravated by the defendant’s actions, “[m]ere irritation, annoyance, embarrassment, exasperation, aggravation, and frustration, without more, does not equate to ‘substantial emotional distress.’ ” Cash, 306 So. 3d at 110 (quoting Johnstone I, 298 So. 3d at 669 (Klingensmith, J., dissenting)); see also Klenk v. Ransom, 270 So. 3d 1272, 1273 (Fla. 1st DCA 2019) (“It is not enough to be ‘weirded out’ or uncomfortable.” (citation omitted)). Furthermore, while littering, noise violations, noxious odors, burns, and improper disposal of garbage or debris might constitute a nuisance, the defendant was not charged with a nuisance violation under chapter 823, Florida Statutes (2017), or any other laws prohibiting such actions. … Another important guidepost included in the stalking statute which was overlooked by the majority in Johnstone I and here again in Johnstone II is the requirement that the State prove the defendant had “no legitimate purpose” for any of the qualifying acts directed at either neighbor. See § 784.048(1)(a), Fla. Stat. (2017). The defendant here was cleaning out his property; breaking-up rock from a clean-out of his pond; constructing a carport; performing maintenance; conducting landscaping and gardening tasks; disposing of garbage, trees, rock, concrete, and other debris; showering to cleanse himself; burning garbage to eliminate it; utilizing a machete to cut brush and trees; running a lawnmower on his rural property; taking videos or pictures to document what he could publicly see; viewing his surroundings; and walking his dog. Because each of those actions have some legitimate purpose, they cannot support a charge of stalking under the plain language of the stalking statute.”

Essentially, Judge Artau found that even though Johnstone’s actions may have caused annoyance to the neighbors, there was no allegation of any conduct that utterly lacked a legitimate purpose. Thus, Judge Artau believed Johnstone’s conviction could not stand. He concluded:

“As we explained in Sutton, these incidents, “while disturbing, merely involved strange behavior” that “on an objective level would not cause substantial emotional distress in a reasonable person.” 332 So. 3d at 1006 (citing Cash, 306 So. 3d at 110). Simply put, the stalking statute is not an elixir to solve a myriad of disputes “between parties who, for whatever reason, are unable to get along and behave civilly towards each other.” Power, 60 So. 3d at 498 (citation omitted). Therefore, I respectfully dissent and would urge my colleagues to recede en banc from Johnstone I and reverse the defendant’s stalking conviction here in Johnstone II.”

Unfortunately for Johnstone, Judge Artau’s dissenting opinion did NOT win the day. As a result, his conviction was affirmed.

In sum, Johnstone v. State, 354 So.3d 1101 (Fla. 4th DCA 2022) marks a major development in Florida’s corpus of case law surrounding criminal stalking. The 4th DCA held that:

• Competent, substantial evidence (e.g. evidence from which a rational trier of fact could reasonably conclude that every element of the charged crime was committed, per Bush v. State, 295 So.3d 179, 201 (Fla. 2020)) existed to sustain Johnstone’s convictions
• Thus, the trial judge permissibly exercised his discretion in finding that stalking had been proven beyond a reasonable doubt
• Because there was no legally sufficient basis for REVERSAL of the verdict, Johnstone’s conviction was AFFIRMED

Judge Artau dissented, arguing that every alleged “stalking” incident had a legitimate purpose (e.g. was not done solely to harass) – and also claimed that substantial emotional distress hadn’t been proven. 

Florida’s criminal defense community should take note of Johnstone v. State, 354 So.3d 1101 (Fla. 4th DCA 2022), as it provides a fascinating discussion on the issue of when evidence is (and is not) legally sufficient to sustain a stalking conviction.

If someone is charged with stalking or aggravated stalking, it is critical to find experienced and trusted legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term, hefty fines, and depending on the nature of the abuse, whether they are required to register as a sex offender for the rest of their life.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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